A VICTORY FOR ACADEMIC FREEDOM: BOLIVIAN HISTORIAN RECEIVES VISA NEEDED TO TEACH AT U.S. UNIVERSITY AFTER WAITING FOR TWO YEARS ON “SECURITY CHECKS”

Dr. Waskar Ari, a Bolivian historian whom the University of Nebraska – Lincoln (UNL) sought to hire as an Assistant Professor of History and Ethnic Studies, was finally cleared and issued a work visa after waiting for nearly two years for “security checks.” The U.S. Consulate in La Paz, Bolivia issued Dr. Ari an H-1B work visa on July 19, 2007, presumably the last hurdle in a case that implicates the First Amendment, academic freedom, and an unlawful approach to background checks for foreign academics. Dr. Ari expects to take up his post at UNL next month.

Dr. Ari’s saga began more than two years ago when an H-1B employment visa petition was filed by the University of Nebraska – Lincoln on his behalf with the Department of Homeland Security (DHS). Although the petition was filed under a DHS procedure that guarantees a decision within 15 business days, DHS failed to act and the petition remained pending for unspecified “security checks” – seemingly delayed indefinitely – for almost two years.

In March 2007, the UNL filed a lawsuit, a complaint for writ of mandamus, seeking to compel the DHS to act. The suit alleged that background checks being conducted by the DHS were not authorized by law, that DHS lacked authority to withhold or delay action on UNL’s petition, and that even if DHS did have such authority, two years was more than sufficient time to conclude background checks on a Bolivian academic who merely seeks to teach in the United States. In May 2007, DHS finally approved the H-1B petition but provided no explanation for the extraordinary delay or the sudden change of heart. In May, Dr. Ari applied for and was required to prove his eligibility for the visa when he appeared at the U.S. Consulate in La Paz, Bolivia. This is normally the step in the visa issuance process when security checks can delay entry. Yesterday, Dr. Ari finally received his work visa from the U.S. Consulate. While Dr. Ari will undergo final inspection when he presents himself at the U.S. border – and admission to the United States is not guaranteed – both the Department of State and the Department of Homeland Security clearly have vetted all issues relating to Dr. Ari’s work visa eligibility and his admissibility to the United States.

Professor Ari, a member of the Aymara indigenous group of Bolivia, is an expert on the history of indigenous peoples, particularly in his native Bolivia, where populist indigenous President Evo Morales is viewed with suspicion by the Bush Administration. A supporter of Venezuelan President Hugo Chavez and the first Indian President of Bolivia, Morales also is a frequent and outspoken critic of the Bush Administration’s policies in the region.

Professor Ari represents one of a growing number of foreign scholars whose visas have been revoked or whose applications have been denied or delayed, thus barring their entry into the U.S. based on their ideology or political views. The highest profile case is that of Tariq Ramadan, a prominent Swiss Islamic scholar whose visa to teach at the University of Notre Dame was revoked by the government in 2004. Dora María Telléz, a Nicaraguan scholar who had been offered a position at Harvard University, is another scholar who has been excluded. The American Civil Liberties Union (ACLU), along with other organizations, is tracking many cases in which it believes foreign nationals have been barred from entering the United States owing to their beliefs. Although the government rarely provides a reason for these exclusions, the ACLU reports that many exclusions appear ideologically motivated and that academics increasingly are being interrogated about their political beliefs when they apply for visas. The ACLU has filed lawsuits challenging governmental inaction related to this issue. It is also challenging a provision in the Patriot Act that is being used to deny visas for foreign scholars whose political views the government disfavors. It alleges that this provision, known as the “ideological exclusion” provision, is being used to prevent U.S. citizens and residents from hearing speech that is protected by the First Amendment.

The underlying case in this instance, University of Nebraska v. Chertoff, et al., Case No. 1:07-cv-421, was filed in the United States District Court for the District of Columbia. UNL was represented in this action by attorneys Michael Maggio and Thomas Ragland of Maggio & Kattar in Washington, D.C. Copies of the complaint and exhibits are available from Maggio & Kattar. The University of Nebraska at Lincoln is a state land-grant university and is Nebraska’s primary research and doctoral degree-granting institution. An information clearinghouse on the case can be found at www.unl.edu/history/news_events/ari/ari.html

KJ