John Lee’s post on US visa policy is, for me, a reminder of how important it is for people to have rights. Rights can sound like an abstruse or arbitrary notion. “Natural rights” sounds like a ghost from the 18th century suddenly walking the earth again. “Human rights” sounds like newfangled UN-speak. But when a person is denied a visa for refusing to laugh at a consular officer’s joke, one feels a certain indignation, a certain repugnance, as if an injury has been done to something rather ineffable but very important. It is not proportional, not fitting, unjust. It is somehow intolerable. The ineffable something that has been injured is human dignity, or in other words, human rights. Rights are the only antidote to arbitrariness and discretion.
Anyway, one of the odd side-effects of an improperly discretionary regime that doesn’t give due respect to human rights, is that corruption can suddenly seem like rather a good thing. Which of the following is more offensive?
1. A visa applicant is rejected for not laughing at a consular official’s joke.
2. A visa applicant is rejected for refusing to pay a $5,000 bribe.
My intuition actually sort of tilts towards (1) being more offensive. I’m very tentative on this point. But at least in case (2), the applicant knows the process. He has more of a sense of being the author of his own life story, of having a say, of knowing the criteria, of being able to plan.
Of course, if I put on my “economist” hat, a very simple analysis suggests itself. If a visa applicant spends his time kissing up to a consular official by researching him and learning what, e.g., laughing at his jokes, puts him in a good mood, resources have been wasted. Perhaps the consular official likes being flattered, but probably he doesn’t value it much, and surely less than the effort to do it is worth. By contrast, if the applicant pays the consular official a $5,000 bribe, both parties clearly benefit. The consular official is $5,000 richer, and the visa applicant apparently values the visa more than his $5,000, or he wouldn’t have paid. Of course, the US public, of which the consular official is supposed to act as a representative, might be deemed to suffer by the decision. But whatever the US public’s stake in immigration may be, it can hardly be claimed that the willingness of visa applicants to laugh at consular officials’ jokes has anything to do with the interests of the US public. So if the consular official is given such discretion that he is entitled to accept or reject visa applicants based on whether they laugh at his jokes or not, then he can’t be injuring the US public by exercising the discretion that has been allotted to him in a fashion that enriches him personally. Efficiency is therefore served by consular corruption.
Now, what this leaves out is truth. I presume that consular officials who reject applicants based on an applicant’s not laughing at their jokes are not deemed to have done anything dishonest or illegal, but that consular officials are explicitly forbidden to take bribes. How does that consideration weigh against the greater efficiency of consular corruption?
One goal of my DRITI proposal is to remove such dilemmas by removing consular discretion. Only when the state seeks to discern and protect individual rights can true rule of law exist.
You want to remove consular discretion entirely? How would the immigration system make decisions about the likelihood of immigrants committing terrorism?
Is it enough to only exclude people on a “known terrorist watchlist”? I’m not sure how many aspiring terrorists in the past could have slipped through such a system.
“How would the immigration system make decisions about the likelihood of immigrants committing terrorism?”
How does the legal system make decisions about the likelihood of people committing terrorism? Is the burden of proof for a foreigner supposed to be “convince some random consular officer you’re not a terrorist, and if you fail to convince him because, say, you don’t laugh at his jokes, well too bad, there’s no appeal process for you”?
It seems odd to essentially tell a foreigner “we’re punishing you because some guy somewhere thinks you’re a terrorist, and you have no due process rights to challenge this determination. Good day.” Even Dzokhar Tsarnaev is getting more due process than that.
One point here: while I definitely want to see an increase in due process in immigration, I wouldn’t advocate, for now at least, the same kind of due process in immigration decisions as applies in the case of citizens. Due process has costs. I’m not sure where the motto “better to let a hundred guilty men go free than to punish one innocent man” comes from, but at any rate it both represents the ideal of due process and makes its costs clear. To be very scrupulous in not punishing the innocent is certainly a good thing, but it seems likely to lead to more crime, as a lot of criminals will get away with crime because there’s not enough evidence to convict them “beyond reasonable doubt.” If we applied this to immigration, it’s probably true that more terrorists would get in. And because the United States domestically is less dangerous than the world as a whole, the right balance to be struck between (in stat-speak) Type I and Type II errors, or (normal-speak) between wrongful exclusions and wrongful (because they end up causing crimes) admissions may be different. So: more due process for immigrants, but not, I think, as much as for citizens, for now.
But immigration restrictions don’t even attempt, or pretend, to be primarily about national security. Mexico is not a terrorist source country, yet restrictionists focus mainly on Mexicans. China is not a terrorist source country, but most Chinese can’t get in. My former mother-in-law, a middle-aged Russian geologist with a husband and son and an apartment, wasn’t granted a visa to attend my wedding in 2004. Middle-aged Russian woman geologists are not plausible terrorist threats. Nor did they pretend she was. They thought there was a threat of her STAYING. Meanwhile, European-born Muslims, who really ARE a terrorist threat, could come in for free on the visa waiver program. Consuls are supposed to apply the economically nonsensical criterion that a person won’t take a job away from a native. Immigration restrictions are really about labor market protectionism, and to a lesser extent, though this sometimes gets more verbiage because it’s more respectable, cultural protectionism, with national security in a distant last place. To the extent that immigration restrictions are really motivated by national security, I basically don’t object. I wouldn’t even mind seeing THOSE kinds of restrictions being made tighter, perhaps (though I’m not too worried about terrorists really, but certainly if it were part of a deal…). National security is a legitimate motive. But our immigration regime is not at all adapted to achieve this end. It doesn’t even pretend to be.
By the way, if the immigration system really were designed to protect national security, it would be odd to admit anyone while not letting them work.
This may be of some interest. I talk a bit about consular absolutism in my paper, “Do Travel Visa Requirements Impede Travel”. Btw, the answer is yes.
http://oneil.cox.smu.edu/detail/do-travel-visa-requirements-impede-tourist-travel
Thanks for referring us to this Bob — it looks great, potentially blog post-worthy. I’m particularly curious about how you quantify visa restrictions, since this is something we’ve discussed on the Open Borders blog before (I believe Nathan had some tentative thoughts on developing an index to measure the openness of different immigration legal regimes).
At the start of this blog entry, there is a link to John Lee’s post on US visa policy. Just now, I followed that link, and found there the link to the New York Times article that this blog entry alludes to: German theatre director Peter Stein being denied a visa, allegedly because he failed to laugh at a consular officer’s joke and instead complained he had to stand for 2 hours waiting for his consular interview.
I wonder whether Stein was hostile or rude. Maybe that, and not failing to laugh, was the real reason he was dismissed. The article makes him sound like possibly a bit of a prima donna, so I would not be surprised.
Still, the point is valid that a consular official COULD punish aspiring visitors for not laughing at his/her jokes.
The article mentions that several weeks later Mr. Stein returned and managed to gain the work visa. Does that mean there actually is at least an informal appeals process? This makes me wonder how absolute a consular official’s power really is.
It would be helpful if we knew the whole story, including the official’s account of it, but we never will know.
I do wish that applicants could at least appeal once and have a second official reconsider the rejection. Open borders is not the only possible solution to consular absolutism.
I don’t know enough about this, but my impression is: (1) people can re-apply (repeatedly, I think) for visas, and need to pay the visa fee each time, there is however a minimum waiting period that de facto is about a month, (2) they cannot formally appeal or challenge a specific past decision, (3) when the person re-applies, they need to demonstrate that there is some material change to their situation from the last time they applied.
This would put some degree of check on the power of individual consular officials, and it’s quite likely that, internally, officials who arbitrarily reject visa applications that are then accepted by other officers upon re-application face penalties. However, there is no external legal accountability to my knowledge. So, even though this probably limits discretionary abuse by individual consular officials, it provides only a limited check on the locally chosen policies of the consulate as a whole.
That said, it’s not clear to me whether consular discretion as a whole leads to de facto less free migration than stringent application of the law would. I suspect that overall it leads to somewhat freer migration in general, because as a general rule people would tend to be sympathetic to the people they see (aka visa applicants), and would be reluctant to reject visas based on technicalities. The law on the other hand, is determined by politicians back in the home country, catering to the wishes of a generally restrictionist-leaning home country electorate. So overall I’m unsure if consular discretion is really something that should be attacked from the perspective of seeking de facto freer migration.
Vipul writes that “it’s not clear to me whether consular discretion as a whole leads to de facto less free migration than stringent application of the law would,” but it seems to me this is a false dichotomy, because consular discretion is part of current law. There isn’t a law “stringently” to apply that somehow excludes consular discretion. That said, I don’t know as much about the process as I would like. But it’s almost the definition of “discretion” that there isn’t a law stringently to apply. To say “you have discretion” is to say “you’re not definitely bound by any prespecified by criteria to act in any given way.”
Whether the elimination of consular discretion would lead to more or less immigration would depend, of course, on how the law was rendered so exact as to remove consular discretion. If we eliminated consular discretion by banning all immigration, well, obviously that would reduce (legal) migration. However, I suspect that a reduction of consular discretion would increase immigration, probably a lot, even if it didn’t precisely involve the loosening of criteria, because it would eliminate the huge uncertainty that makes it very hard to work migration into one’s life plan. Suppose, for example, that to immigrate to the US, you had to take the SAT in English and get at least 1200. That would be a much more stringent standard than we currently apply, in the sense that many people who are currently admitted would not meet it. But those who COULD meet it would know in advance that they would get in and could prepare themselves. They wouldn’t have to suspend their whole lives awaiting a visa decision. They wouldn’t have to save for years for a plane ticket, only to find their money had been wasted. And of course, they could study, hard, for the SAT.
Suppose there was an amusement park in the city where admission was discretionary. You had to chat with the guards or not, and they might let you in, or not, and they had instructions from above that forced them to refuse entry to most people even though they seemed like perfectly good candidates for admission, so they had to make up secret, arbitrary criteria and apply them just to keep the numbers down. I suspect a whole lot of people who would like to go the amusement park wouldn’t even bother when this highly non-transparent and arbitrary admission process made their getting in so uncertain.
To eliminate consular discretion is to establish some sort of right to migrate, even if it’s just a right to migrate for people who get over 1200 on the SAT. That’s a start. So I do put a lot of stress on consular discretion.
Nathan, what you said here sounds plausible.
About the hypothetical amusement park, that has secret, arbitrary criteria: I assume it’s true that the U.S. State Department likewise has at least semi-secret, semi-arbitrary criteria. But the criteria are not entirely so.
The John Lee post mentioned above contained a link to this:
http://oig.state.gov/documents/organization/126337.pdf
That document is titled, “Nonimmigrant Visa Adjudication: Standards for Refusing Applicants” I’m not sure how clear the criteria in the document really are, but it’s something.
Posts on this website have focused on possible unfairness in consular officials’ decision-making. I wonder whether there is a flip-side: are some officials making subtle, difficult-to-justify judgements that are working for the benefit of the nation? Are they filtering out applicants who are rude, lacking ability to communicate effectively, creepy, impatient, etc?
It would help to have inside information, to know what those officials are really doing.