OR: Am. Sociological Ass'n v. Chertoff, 588 F. Supp. 2d 166 (D. Mass. 2008) 

On September 25, 2007, as part of its continued commitment to oppose the ideological exclusion of foreign scholars and academics, the AAUP joined several other organizations in filing suit against Michael Chertoff and Condoleezza Rice in their capacities as the Secretary of Homeland Security and Secretary of State. The lawsuit is being litigated by the American Civil Liberties Union, and the AAUP’s co-plaintiffs include the American Sociological Association, the American-Arab Anti-Discrimination Committee, the Boston Coalition for Palestinian Rights, and Professor Habib himself. 

In October 2006, Professor Habib, who obtained his Ph.D. from CUNY and had entered the United States on various other occasions to address American audiences, flew to this country to attend scheduled meetings with officers of the Social Science Research Council, Columbia University, the National Institutes of Health, and the World Bank. He was detained at JFK airport and ultimately denied entry to the United States; the State Department subsequently took the unprecedented step of revoking the visas of his wife and two young children. Professor Habib subsequently applied for a new visa to enable him to attend the annual meeting of the American Sociological Association in August 2007; the government failed to act on his visa application by the time of the meeting, rendering him unable to come and the attendees unable to speak with or hear from him.  On October 26, 2007, the American consul in South Africa sent Professor Habib a letter informing him that he was inadmissible under a section of the USA Patriot Act that empowers the government to exclude an alien who has “engaged in terrorism.”  The consul also indicated that if Professor Habib were to apply for a waiver of ineligibility, it would not be granted.  The government has never provided evidence supporting its assertion that Professor Habib has engaged in terrorism. 

The complaint (.pdf) filed on September 25, 2007, contended that censorship at the border prevents U.S. citizens and residents from hearing speech that is protected by the First Amendment. The lawsuit sought the immediate processing of Professor Habib’s pending visa application and a declaration that his exclusion without explanation since October 2006 violates the First Amendment rights of U.S. organizations, citizens, and residents. On November 14, 2007, the plaintiffs filed an amended complaint, and on December 3, 2007, filed a second amended complaint (.pdf). The second amended complaint asked the court to declare that the government’s denial of a visa and a waiver of inadmissibility to Professor Habib violates the First Amendment and the Administrative Procedures Act, which requires that actions by government agencies not be “arbitrary and capricious,” in violation of constitutional rights, or “in excess of statutory authority or limitations.” The complaint also asked the court to prohibit the government from relying on the “engaged in terrorism” section of the Patriot Act to exclude Professor Habib, and to enjoin the government from “denying a visa to Professor Habib on the basis of speech that U.S. residents have a constitutional right to hear.”

Update: On January 14, 2008, the government filed a motion to dismiss (.pdf) the lawsuit in light of the decision in favor of the government in the Ramadan litigation, described above. The motion asserts that courts do not have the authority to review consular decisions denying visas or waiver requests, even where the First Amendment rights of U.S. citizens and residents may be affected by the exclusion. On February 13, the AAUP and the other plaintiffs filed a motion for summary judgment (.pdf) and motion in opposition to the government’s motion to dismiss, accompanied by a declaration (.pdf) from AAUP president Cary Nelson. The AAUP’s motion for summary judgment argues that the government’s denial of a visa and waiver to Professor Habib violates the First Amendment; that contrary to the government’s argument, courts may review visa-related decisions where First Amendment rights are implicated or where governmental officials other than consular officials made those decisions; and that the government’s denial of a visa to Professor Habib violates the Administrative Procedures Act. On March 20, 2008, the government filed a reply (.pdf)  to the plaintiffs’ motion for summary judgment, as well as a motion to hold the summary judgment motion in abeyance while the court decides whether the plaintiffs are harmed by the exclusion of Professor Habib. On April 3, 2008, the plaintiffs filed a reply (.pdf), again asking the court to grant the motion for summary judgment and to deny the government’s request to be permitted to conduct an investigation into the specific injury imposed by the inability of the plaintiffs and their members to interact with Professor Habib face-to-face. The judge heard oral argument from the parties on June 25, 2008, in the U.S. District Court for the District of Massachusetts, in Boston.

On December 8, 2008, District Judge O’Toole issued an opinion (.pdf) denying the government’s motion for summary judgment. In strong terms, the judge rejected the government’s argument that visa denial decisions are entirely insulated from judicial review where First Amendment rights are implicated. As Judge O’Toole noted, courts have the power at least to determine whether a visa was denied “on the basis of a facially legitimate and bona fide reason.” The judge also rebuffed the government’s argument that where no reason at all is offered for a visa denial, no review is permitted. “The incentive [that the government’s] proposed interpretation would give the government would be perverse: better to give no reason for a denial so that it would be unreviewable than to give a reason and be second-guessed by a court. It seems unlikely in the extreme,” he opined, that the Supreme Court intended that result.

Judge O’Toole also dismissed the plaintiffs’ claims under the Administrative Procedure Act and dismissed Secretary of the Department of Homeland Security Michael Chertoff as a defendant, on the grounds that Chertoff took no part in the decision to deny Professor Habib’s visa. In addition, he dismissed Professor Habib as a “symbolic plaintiff.” Those elements of the decision do not have a significant impact on the outcome of the case. Finally, the judge stayed the plaintiffs’ motion for summary judgment in order to allow both the plaintiffs and the government to engage in discovery and develop the factual record for trial.