District court's grant of summary judgment to defendants on plaintiffs' claim that the denial of a visa for an Islamic scholar violated their First Amendment rights is vacated and remanded where: 1) the district court had jurisdiction to consider the claim, despite the doctrine of consular nonreviewability; 2) the Immigration and Nationality Act provision expanding visa ineligibility to those who contributed funds to a terrorist organization before the provision was enacted was validly applied; 3) the knowledge requirement of the statute required the consular officer to find that the applicant knew his contributions provided material support; and 4) the record does not establish that the consular officer who denied the visa confronted the with applicant with the allegation that he knowingly rendered material support to a terrorist organization, thereby precluding the applicant for an opportunity to satisfy the provision that exempts exclusion if the he can demonstrate that he did not know, and should not reasonably have known, that the organization was a terrorist organization.
Appeal from the United States United States District Court for the Southern District of New York.
Heard March 24, 2009
Decided July 17, 2009
Before: FEINBERG, NEWMAN, and RAGGI, Circuit Judges.
Opinion by NEWMAN, Circuit Judge.
For Plaintiff: Jameel Jaffer, New York, N.Y.
For Defendant: Davis S. Jones, Asst. U.S. Atty., New York, N.Y.