The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
In its opinion and order of June 23, 2006, the Court ordered Defendants Michael Chertoff and Condoleeza Rice, in their capacities as Secretary of the Department of Homeland Security and Secretary of State, respectively, (collectively "the Government"), to issue a final decision on Tariq Ramadan's pending non-immigrant visa application within 90 days of the date of the order. On September 19, 2006, the Government officially denied the visa and gave its reason: Professor Ramadan had contributed money to an organization which provided material support to Hamas, a terrorist group. Defendants assert that such contributions were made in violation of the Immigration and Nationality Act ("INA") § 212(a)(3)(B), codified at 8 U.S.C. §1182(a)(3)(B)(iv)(VI), thus rendering Ramadan inadmissible for providing material support to a terrorist organization.
After considering the matter for five months, Plaintiffs amended their complaint and on February 23, 2007, the American Academy of Religion, the American Association of University Professors, the PEN American Center, and Tariq Ramadan, (collectively "Plaintiffs"), moved for summary judgment on dual grounds: (1) that their First Amendment rights have been, and continue to be, violated by the Government's actions in the ongoing exclusion of Ramadan, and (2) that the section of the USA PATRIOT ACT ("Patriot Act") which provides a basis for excluding any alien from the United States who "endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization" is unconstitutional.*fn1 8 U.S.C. § 1182(a)(3)(B)(i)(VII). The Government responded and cross moved for summary judgment on May 21, 2007 on the grounds that it is entitled to exclude Ramadan from the United States as a matter of law under Congress' plenary power to control immigration policy and the delegation of that broad authority to the Executive. The matter was argued before the Court on October 25, 2007. For the reasons discussed below, Defendants' motion is granted and Plaintiffs' motion is denied.*fn2
Background and Brief Summary of Prior Argument
The facts were fully set forth in the Court's June 23, 2006 opinion. Am. Acad. of Religion v. Chertoff, 463 F. Supp. 2d 400, 403-09 (S.D.N.Y. 2006). They are briefly summarized here and supplemented by the pertinent facts which occurred or came to light after the Court's decision.
Tariq Ramadanis a well-known and respected Muslim scholar who accepted an offer to become a tenured professor at the University of Notre Dame ("Notre Dame") in January 2004. Upon Ramadan's acceptance, Notre Dame submitted an H-1B visa petition on his behalf, which was approved by the United States Department of State (the "State Department") on May 5, 2004.*fn3
On July 28, 2004, however, one week before Professor Ramadan's scheduled move from Switzerland to Notre Dame, Indiana, the United States Embassy in Bern, Switzerland revoked his visa. Consular officials did not provide an explanation for the revocation, but a spokesman for the Immigration and Customs Enforcement Division of the Department of Homeland Security ("DHS") stated to the media that the basis of the revocation was a provision of the Patriot Act permitting the United States to exclude any person who used a "position of prominence within any country to endorse or espouse terrorist activity." Muslim Scheduled to Teach at Notre Dame Has Visa Revoked, L.A. Times, Aug. 25, 2004, at A23.
Notwithstanding the revocation, United States officials informed Professor Ramadan that he could re-apply for a visa. Accordingly, Notre Dame submitted another visa application on his behalf on October 4, 2004. After Notre Dame learned that no decision would be made on the application in the near future, and with the fall semester nearly over, Professor Ramadan resigned his teaching position at Notre Dame on December 13, 2004. DHS, which was monitoring the situation, learned of the resignation and almost immediately thereafter, on December 21, 2004, revoked the renewed H-1B visa petition.
Prior to the initial revocation of his H-1B visa application in July 2004, Professor Ramadan frequently traveled to and lectured in the United States. As a Swiss citizen, Ramadan enjoyed the advantages of Switzerland's participation in a visa waiver program.*fn4 Since the revocation, however, he is ineligible for the visa waiver program and must apply for a visa for each visit. If the visa is not granted, he cannot attend the various scholarly events to which he has been invited.
On September 16, 2005, Ramadan applied for a B visa, a nonimmigrant visa which would allow him to enter the United States for short periods of time to attend academic events.*fn5 As part of his B visa application, Ramadan appeared for two interviews. Decl. of Aaron I. Martz ¶ 3 ("Martz Decl."). The first was held in September 2005. The second was conducted with officials from DHS at the United States Embassy in Bern on December 20, 2005. Id. During the interview process, Ramadan revealed that between 1998 and 2002 he made donations to the Association de Secours Palestinien ("ASP"), totaling 1670 Swiss francs (approximately $1336.00 dollars). Second Decl. of Tariq Ramadan ¶ 14.*fn6 On August 21, 2003, a year after the last donation was made and two years prior to the visa interview,the U.S. Department of the Treasury listed the ASP as an entity which supports terrorism by providing funding to Hamas, and designated ASP a "Specially Designated Global Terrorist."*fn7
No decision was made on Ramadan's September, 2005 B visa application,*fn8 and on January 25, 2006, Plaintiffs filed this lawsuit challenging Professor Ramadan's ongoing exclusion from the United States. After another two months passed, on March 15, 2006, with still no decision made on Ramadan's pending application, Plaintiffs filed a motion for a preliminary injunction which the Court partially granted in its order of June 23, 2006. The Court ordered Defendants to issue a formal decision on Ramadan's pending B visa application within ninety days. Am. Acad. of Religion v. Chertoff, 463 F. Supp. 2d 400 (S.D.N.Y. 2006).
On September 19, 2006, Aaron Martz, a consular officer working at the United States Embassy in Bern, Switzerland, denied Ramadan's visa application on the grounds that Ramadan provided material support to a terrorist organization under 8 U.S.C. §§ 1182(a)(3)(B)(iv)(VI). In his affidavit of July 13, 2007, Mr. Martz recites that he had requested and received a Security Advisory Opinion ("SAO")-a report which contains "input from other interested U.S. Government agencies that may have information that is not otherwise available"-concerning Mr. Ramadan. Martz Decl. ¶ 2. Mr. Martz received the SAO, the information supplied by Mr. Ramadan in his interviews in September and December 2005, and "additional information provided by Washington." Martz Decl. ¶ 3. Based on this information, Mr. Martz determined that Ramadan was inadmissible on the basis of 8 U.S.C. § 1182(a)(3)(B)(iv)(VI), permitting exclusion of an alien who provides material support to a terrorist organization. Martz Decl. ¶ 3. With respect to the "knowledge" requirement in the cited statute, Mr. Martz found that "Mr. Ramadan knew, or reasonably should have known, that providing funds directly to a group would afford 'material support' to that group," and "Mr. Ramadan did not, and could not, demonstrate by clear and convincing evidence that he did not know, and should not reasonably have known, that ASP and CBSP raised money for Hamas." Martz Decl. ¶¶ 3(a) & (b).
On September 19, 2006 Ramadan was notified of the decision by telephone and by letter from John O. Kinder, a consular official in Bern. The letter stated in full:
Dear Mr. Ramadan, Your application for a B1/B2 non-immigrant visa has been refused. You have been found inadmissible to the United States for engaging in terrorist activity by providing material support to a terrorist organization. Please see sections 212(a)(3)(B)(i)(I) and 212(a)(3)(B)(iv)(VI) of the Immigration and Nationality Act (INA) (attached).
The basis for this determination includes the fact that during your two interviews with consular officials, you stated that you had made donations to the Comité de Bienfaisance et de Secours aux Palestiniens and the Association de Secours Palestinien. Donations to these organizations, which you knew, or reasonably should have known, provided funds to Hamas, a designated Foreign Terrorist Organization, made you inadmissible under INA § 212(a)(3)(B)(i)(I).
Under U.S. law, this ineligibility is permanent and you will be unable to enter the United States in the near future unless the ineligibility is waived in accordance with INA Sec. 212(d)(3).
Yours sincerely, (original signature) John O. Kinder Consul US Embassy Bern Letter from John O. Kinder to Dr. Tariq Ramadan, Sep. 19, 2006, Pl. Ex. E.
Five months later, on February 2, 2007, Plaintiffs amended their complaint which then challenged the denial of Ramadan's visa on the grounds that the Government's proffered reason for denying the visa was not "facially legitimate and bona fide" as required by case law,*fn9 and asserted that the "endorse or espouse" provision of the Patriot Act was unconstitutional under both the First and Fifth Amendments.
I. Summary Judgment Standard
Summary judgment is appropriate if the pleadings demonstrate "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party initially bears the burden of demonstrating that no genuine issues of material fact remain. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets this burden, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial" in order to survive the summary judgment motion, otherwise the case may be resolved as a matter of law. Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
II. The Relevant Statutes
The controlling statute is the Immigration and Nationality Act, as modified by the Patriot Act in 2001, Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001), and the REAL ID Act in 2005, Pub. L. 109-13, 119 Stat. 231 (May 11, 2005). The relevant provision of the statute, 8 U.S.C. §1182(a)(3)(B)(i)(I), bars from the United States any alien who has "engaged in terrorist activity." "Engaging in terrorist activity" is further defined as, inter alia, "commit[ting] an act that the actor knows, or reasonably should know, affords material support, including . . . funds, transfer of funds or other material financial benefit" to individuals or organizations engaged in terrorist activities, "unless the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization." 8 U.S.C. §1182(a)(3)(B)(iv)(VI).
The statutory language challenged here is the current language of an immigration law that has been modified multiple times since its inception. The revisions relevant to this case have already been mentioned: the Patriot Act, which went into effect on October 26, 2001 and added the "material support" provision as a ground for the exclusion of aliens, and the REAL ID Act, which was enacted in May 2005 and further modified the "material support" provision by adding the "clear and convincing" language to the knowledge requirement, thus raising the burden of proof required for an alien to overcome a decision of inadmissibility.
The effective date of the REAL ID Act, delineated in subsection 103(d), provides: (d) EFFECTIVE DATE-The amendments made by this section shall take effect on the date of the enactment of this division, and these amendments, and section 212(a)(3)(B) of the Immigration and Nationality Act (8 U.S.C. §1182(a)(3)(B)), as amended by this section, shall apply to . . . acts and conditions constituting a ground for inadmissibility, excludability, deportation, or removal occurring or existing before, on, or after such date.
REAL ID Act §103(d), Pub L. 109-13, 119 Stat. 231 (May 11, 2005) (emphasis added).
Also in dispute is the "endorse and espouse" provision of the Patriot Act, which Plaintiffs refer to as the "ideological exclusion" provision. The "endorse and espouse" provision is codified at 8 U.S.C. §1182(a)(3)(B)(i)(VII) and states that "[a]ny alien who . . . endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization . . . is inadmissible." The Plaintiffs challenge the constitutionality of this provision even though the provision was not used to deny Ramadan's visa application. It is true that in August 2004 a DHS spokesperson mentioned the provision as the basis for the revocation of the original H-1B visa. L.A. Times, supra, at A23. Nonetheless, the Government has since disavowed the statement;*fn10 in addition, numerous other events, including the Plaintiffs' motion for preliminary injunction, the definitive denial of Ramadan's visa, and the ...