The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Holocaust denier Ernst Zundel apparently wanted to move to the United States from Germany. (I say apparently because the decision on which I'm 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—who is about 80 years old—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:
[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.
And though a waiver of inadmissibility was possible—because of extreme hardship to Zundel's elderly wife—the office concluded that there was good reason to deny the waiver:
The negative factors in the Applicant's 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's case outweigh the positive such that a favorable exercise of discretion is not warranted.
Now, I think there's 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 (1972), generally take the view that the First Amendment and similar constitutional provisions don't 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 who "endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization." The view seems to be: We have to live with schmucks who are already Americans, but that doesn't mean we need to let in more. (Of course, the litigation over President Trump's 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—depending on the breadth of the Court's rationale—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.)
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)—and that DHS's Administrative Appeals Office might not fully understand American First Amendment law. The office stated,
A foreign conviction can be the basis for a finding of inadmissibility only where the conviction is "for conduct which is deemed criminal by United States standards." Matter of Ramirez-Rivero, 18 I&N Dec. 135, 137 (BIA 1981).
(To give an example of the Ramirez-Rivero principle in action, one 2015 decision held that a 1997 Cuban conviction for "speculation and hoarding" couldn't disqualify an alien from admissibility to the United States.) But as best I can tell from press accounts, Zundel's speech that formed the basis of his German conviction would not have been "deemed criminal by United States standards." Denying the Holocaust and expressing anti-Semitic sentiments is just not a crime under American law. Indeed, it can't be made a crime, given the First Amendment.
But here's what the office said as it went on:
In Brandenburg v. Ohio, the Supreme Court held that constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. 89 S.Ct. 1827, 1829 (1969).
But, as the office notes, the Brandenburg exception is limited to advocacy intended and likely to produce crime in the next few minutes, hours or at most days (see Hess v. Indiana ), the classic example being a speech to an enraged crowd outside a building, urging it to storm the building. To my knowledge, Zundel's convictions don't stem from such behavior.
So the exclusion of Zundel was itself not a First Amendment violation. But, based on Ramirez-Rivero—and certainly the office's description of Ramirez-Rivero—it appears to have been a violation of American immigration law. And in the process of misapplying Ramirez-Rivero, the office seems to have erroneously concluded that Holocaust denial and the expression of anti-Semitic sentiments would be "deemed criminal by United States standards." That strikes me as mistaken, though I'd be glad to hear any corrections or clarifications from readers who are more knowledgeable about immigration law than I am.