{"id":1761,"date":"2017-04-27T22:13:49","date_gmt":"2017-04-28T02:13:49","guid":{"rendered":"http:\/\/cafe.nfshost.com\/?p=1761"},"modified":"2017-04-27T22:13:49","modified_gmt":"2017-04-28T02:13:49","slug":"america-a-little-less-free-zundel-banned-from-u-s-because-of-his-non-violent-views","status":"publish","type":"post","link":"https:\/\/cafe.nfshost.com\/?p=1761","title":{"rendered":"America A Little Less Free: Zundel Banned from U.S. Because of His Non-Violent Views"},"content":{"rendered":"
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America \u00a0A Little Less Free: Zundel Banned from U.S. Because of His Non-Violent Views<\/strong><\/span><\/h2>\n
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The Volokh Conspiracy<\/a><\/p>\n
\u00a0Ernst Zundel barred from moving to the U.S., though his wife is an American citizen<\/div>\n<\/div>\n
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By Eugene Volokh<\/a><\/span> April 24<\/span><\/div>\n
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\nGerman right-wing extremist Ernst Zundel sits in a court in Mannheim, Germany, on\u00a0Nov. 8, 2005, at the beginning of a trial to face charges including incitement libel and disparaging the dead. (Michael Probst\/Associated Press)<\/span><\/div>\n

Holocaust denier Ernst Zundel apparently wanted to move to the United States from Germany. (I say apparently because the decision on which I\u2019m reporting, just posted on Westlaw but decided March 31 by the U.S. Department of Homeland Security Administrative Appeals Office, referred only to one E.C.Z., but both the initials and the facts described in the decision fit Zundel and likely no one else.) He would normally get an immigrant visa, because his wife of 16 years \u2014 who is about 80 years old \u2014 is a U.S. citizen. But he was classified as inadmissible because he has been convicted of foreign crimes for which the sentence was five years or more:<\/p>\n

[I]n 2007 the Applicant was convicted in Germany of 14 counts of incitement to hatred and one count of violating the memory of the dead. The Applicant was sentenced to an aggregate of five years in prison.<\/p><\/blockquote>\n

And though a waiver of inadmissibility was possible \u2014 because of extreme hardship to Zundel\u2019s elderly wife \u2014 the office concluded that there was good reason to deny the waiver:<\/p>\n

The negative factors in the Applicant\u2019s case include his long history of inciting racial, ethnic, and religious hatred. The record shows that the Applicant is a historical revisionist and denier of the Holocaust, distributing writings, books, tapes, videos, and broadcasts to promote his views. The record indicates further that these publications agitated for aggressive behavior against Jews. Furthermore, the Applicant has been a leader in these activities for decades and has shown no regret or remorse for his actions. Thus, we find that the negative factors in the Applicant\u2019s case outweigh the positive such that a favorable exercise of discretion is not warranted.<\/p><\/blockquote>\n

Now, I think there\u2019s nothing unconstitutional under current First Amendment law about the decision to exclude Zundel. Various Supreme Court cases, of which the most relevant is Kleindienst v. Mandel<\/i> (1972)<\/a>, generally take the view that the First Amendment and similar constitutional provisions don\u2019t apply to decisions on whether to let in an alien. American immigration law has long barred immigration by aliens who have been members of Communist parties; more recently, it has likewise barred immigration by anyone\u00a0who \u201cendorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization.\u201d The view seems to be: We have to live with schmucks who are already Americans, but that doesn\u2019t mean we need to let in more. (Of course, the litigation over President Trump\u2019s Executive Order might change this analysis: If the Supreme Court eventually concludes that the order discriminated based on the religious beliefs of most would-be visitors from certain countries, and that such discrimination violates the First Amendment, then \u2014 depending on the breadth of the Court\u2019s rationale \u2014 that logic might equally apply to discrimination based on the political beliefs of would-be visitors and would-be immigrants, and might thus lead to an overruling of Kleindienst<\/i>.)<\/p>\n

But oddly, the decision suggests that Zundel might have had a legal right under existing law to immigrate after all (even if that right could constitutionally be taken away by a change in the law) \u2014 and that DHS\u2019s Administrative Appeals Office might not fully understand American First Amendment law. The office stated,<\/p>\n

A foreign conviction can be the basis for a finding of inadmissibility only where the conviction is \u201cfor conduct which is deemed criminal by United States standards.\u201d Matter of Ramirez-Rivero<\/i>, 18 I&N Dec. 135, 137 (BIA 1981).<\/p><\/blockquote>\n

(To give an example of the Ramirez-Rivero<\/i> principle in action, one 2015 decision held that a 1997 Cuban conviction for \u201cspeculation and hoarding\u201d couldn\u2019t disqualify an alien from admissibility to the United States.) But as best I can tell from press accounts, Zundel\u2019s speech that formed the basis of his German conviction would not<\/i> have been \u201cdeemed criminal by United States standards.\u201d Denying the Holocaust and expressing anti-Semitic sentiments is just not a crime under American law. Indeed, it can\u2019t be made a crime, given the First Amendment.<\/p>\n

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