Tag Archives: visas

US visa policy: where everything’s made up, and due process doesn’t matter

In 1998, Robert Olsen successfully sued the US State Department, winning his claim that he had been fired for refusing to enforce racist and arbitrary immigration policies. The full judgment in Olsen v. Albright is worth reading. Olsen, who was stationed in Sao Paulo, was a law graduate working as a consular officer reviewing visa applications. He was troubled by the consulate’s policy. The Sao Paulo consulate’s visa manual explicitly documented common abbreviations used when documenting visa refusals, such as these gems:

  • LP = looks poor
  • LR = looks rough
  • TP = talks poor

Note that these determinations were not made on the basis of actual evidence, such as affidavits, bank statements, or letters. They were made simply on the basis of a consular officer deciding the applicant “looked poor” or “talked poor”. Imagine being denied your driver’s licence because the bureaucrat at the DMV felt that you just “look” like a bad driver. Here are some actual, documented reasons for visa denials:

  • “Slimy looking[;] wears jacket on shoulders w/ earring”
  • “LP!!!!!!”
  • “Look Really Poor”
  • Bad Appearance. Talks POOR”
  • “Looks + talks poor.”

Of course, if we’re turning down applications because of arbitrary things like someone’s physical appearance, it’s a short hop and a skip to turning them down because of race. The Sao Paulo visa manual further singled out various races and nationalities as especially suspect (ostensibly because of fraud). The manual explicitly states: “Visas are rarely issued to [Koreans and Chinese] unless they have had previous visas and are older.” One would assume that if fraud were the reason, the manual should have laid out ways to corroborate suspicion of fraud, instead of making blanket assumptions about people of a particular nationality or ethnic descent. Instead of providing any such guidance, Olsen’s superiors scolded him for issuing too many visas to people who fit certain unspecified “fraudulent” profiles, and arbitrarily demanded that he double his visa rejection rate from 15% to 30%. Judge Stanley Sporkin eventually found in Olsen’s favour, ruling (emphasis added):

The Consulate’s policies instruct visa officers to view members of these groups as far more suspicious and dishonest than applicants of other races and nationalities. In effect, the manual places a heavy additional burden on applicants of particular nationalities and races that other individuals do not have to face. Based on generalized stereotypes about their behavior, Koreans, Chinese, and Arabs are singled out and stamped with the ignominious badge of “major fraud” before any facts about them are known.

…Although the Court understands the difficulty of the Consulate’s task, greater efficiency is not a sufficient reason to justify the discrimination of people based upon their skin color or national origin. …The Court is aware of the State Department’s difficult responsibilities in adjudicating visa applications under strict time constraints. However, the Court is confident that the State Department can dispatch its duties effectively without using generalizations based on national origin. This nation’s officials once deemed it necessary to make the broad generalization that American citizens of Japanese origin were inherently suspect and likely to commit espionage.

Sporkin noted that Olsen’s superiors did not cite any actual instances of fraud in their evaluation of his performance; they merely demanded he arbitrarily reject more people who they viewed as inherently more susceptible to fraud: “the administrative record reveals numerous instances where Plaintiff’s superiors, in instructing Plaintiff how he should improve his performance, told him to rely more heavily on the profiles.” When Olsen was posted to a different consulate without Sao Paulo’s discriminatory policies, he received an exemplary performance review which noted he “appeared to apply consistency and good judgment to each visa case.”

Sadly, Sporkin’s decision did nothing for the hundreds of people refused visas for being born into the wrong race, or wearing the wrong clothes. Even more sadly, the New York Times noted at the time that “similar policies are in effect at American visa offices around the world.” And this was in a pre-9/11 world; it is a truth universally acknowledged that US visa policy has become even stricter since then. And US consular officers’ discretion has not shrunk: they remain empowered to use virtually any reason they like to deny you a non-immigrant visa, and they strongly oppose the establishment of any rules- or principles-based process, especially one that the public might rely on, citing fraud concerns.

We know that power corrupts, and absolute power corrupts absolutely. As immigration lawyer Angelo Paparelli notes, US consular officers literally have the final say on who gets a visa: it is a decision not even the President can overturn. One immigration lawyer has a heartrending tale of how the absence of any appeals process destroyed her client’s life. Another immigration law blog from Thailand puts it more bluntly: “Many people mistakenly believe that legal concepts such as due process apply to matters going before US Consular officers.” The end result: a US visa policy that denies you a visa simply because you “Look Really Poor.”

The scary thing is, we have no idea how many such cases like these there are. The only reason this matter became public and went before the courts is because of the following chain of events:

  1. The Sao Paulo consulate explicitly documented their racist and arbitrary visa policies
  2. Olsen was stationed in Sao Paulo
  3. Olsen had the moral courage to refuse to apply racist and arbitrary visa policies
  4. State fired Olsen for his courageous stance
  5. Olsen sued State for wrongful termination, and did not accept a private settlement

If any one of those had not happened, we would never have heard about this. Under US law, consular decisions are not subject to judicial review, and there is no appeals process. The racist and arbitrary nature of visa policy only came before the court because it was at issue in Olsen’s allegation of wrongful termination — not because the court was reviewing visa policy or specific visa denials, something the court had absolutely no legal right to do.

There is literally more due process and transparency involved in applying for a US government secret security clearance than there is in applying for a tourist or student visa. Anyone who has their clearance application denied is allowed to appeal, and the findings of these hearings are documented and made public. Until the courts told the US government that they were simply going too far, immigrants were not even allowed to see the evidence that the US government had used in deciding to deny their visa. The US government’s position until 2011 literally was:

  1. Appeals against denied security clearances are public matters, and the evidence behind the government’s decision needs to be public by default
  2. Appeals against denied visas are a threat to national security, and the government should not make public any evidence without undergoing the tortuous Freedom of Information Act process

The people whose visas were denied by the Sao Paulo consulate are in all likelihood the tip of the iceberg. Because there is no appeals process and the US government hides the visa adjudication and decision-making processes behind a veil of “national security” that doesn’t even apply to top secret security clearances, we have no way of knowing how many other US consular outposts might be enforcing similarly arbitrary or racist policies. Considering the opacity and dictatorial discretion here, it would be surprising if Sao Paulo was the only one. Every year, 1 to 2 million people are denied US visas for no real reason — they’ve passed criminal background checks, they’ve passed medical checks — the consular officer reviewing their application just felt like turning them down.

The victims of racist and arbitrary immigration policies here are not just immigrants — people who want to be with their friends and family, people who want to earn an honest living. They are also people who simply wanted to visit or study in the US. They had family they needed to see, places they wanted to visit, business partners they needed to meet, classes they needed to attend. And all because they “Look Really Poor” — not because they posed any sort of threat to the US. US policy is that they have no channel for appeal — even if, as one immigration lawyer puts it, “the denial was based on a consular officer’s mistake of fact or a misunderstanding of the law, or even if the officer acted capriciously, arbitrarily, or maliciously”.

Yes, we can improve immigration policy by limiting consular discretion, and guaranteeing more due process. Making the evidence used to deny visas public, and allowing visa denials to be appealed would be a good start. But even these improvements are playing at the margins. We need to abolish immigration policies that assume all foreigners are evil or criminal until they prove conclusively otherwise. As long as we continue to make the assumption that billions of people around the world are guilty until proven innocent, we cannot have any true “due process.” Perhaps the benefits of this manifest injustice outweigh the costs. But there is no evidence, no analysis, truly showing that that is the case. Until you can show me why we should throw fundamental due process protections out the window — why the benefits of making visa decisions in secret behind closed doors, based on arbitrary criteria like race or physical appearance, outweigh the costs — I can only conclude that the immigration policy status quo is an affront to the most basic principles of any civilised justice system.

The cartoon featured at the top of this post depicts a Chinese immigrant being refused entry to the United States, and was published in 1882.

Jim Manzi’s thoughts on immigration are surprisingly ill-considered

Jim Manzi, the founder of Applied Predictive Technologies, last year published the book Uncontrolled, an excellent exposition of the view that business and government should rely on more randomised field trials to assess the value of different choices. Overall I found little to disagree with in the book, except when it came to immigration. Manzi leans right in his politics, but in general refrains from regurgitating standard right-wing political bromides; unfortunately, immigration seems to be an exception to this rule.

Manzi only touches on immigration in the book when discussing actual recommendations; besides a selective immigration policy, his other recommendations include expanding school vouchers and promoting government spending in R&D. Manzi views existing US immigration policy as rather destructive, and I agree. He and I both see eye to eye on the point that US policy arbitrarily and absurdly treats high-skilled immigrants. But Manzi paints with an unnecessarily broad brush when it comes to low-skilled and unauthorised immigration.

Manzi suggests that with immigration policy permitting low-skilled immigration:

It is hard to imagine a more damaging way to expose the fault lines of America’s political economy: We have chosen a strategy that provides low-wage gardeners and nannies for the elite, low-cost home improvement and fresh produce for the middle class, and fierce wage competition for the working class.

The “fierce wage competition” bit itself is controversial. It is commonly taken for granted that of course immigration lowers wages, but empirical data supporting this claim is thin on the ground. Manzi wisely limits this critique to the working class (as there is essentially zero convincing evidence that immigration suppresses wages for middle- to upper-income workers), but even there, only a handful of studies have ever shown wage impacts larger than something on the order of reductions around 1 or 2% for low-income earners. The consensus estimate remains that immigration at worst impacts the most vulnerable earners at a negligible level. This is not great, but it hardly suggests “fierce” competition.

Manzi’s other points make even less sense, for one could argue that the only thing preventing the middle class from enjoying low-wage gardeners and nannies, or the working class from enjoying low-cost home improvement, is in fact restrictive immigration policies. The typical citizen of the UAE, after all, enjoys the benefits of cheap immigrant labour, regardless of income level! A tangible example that most people might find more relatable: in Malaysia, it’s typical for middle-class white collar workers to hire live-in maids, and even lower-income workers might be able to afford maids coming in every so often to clean. Manual labour for any task you desire, from moving to home renovation, is both abundant and cheap. In both cases, a very significant portion of the work force is foreign.

You might resist this, arguing that it’s not a slam dunk that this is what would happen if the US or any rich country opened its borders. I agree, it’s not a slam dunk at all. But neither is it implausible. And on the other hand, it’s certainly impossible to take for granted Manzi’s assertion that liberal immigration policy widens the income and socioeconomic gaps between rich and poor.

Manzi agrees that his preferred high-skilled immigration policy is not an obvious slam dunk — he also obliquely points out that it’s difficult to know what criteria on which to select high-skilled immigrants, although he takes pains to cite Australia and Canada as examples to learn from. Manzi proposes that the US “test and learn” via visa allocation. Come up with different rules to target high-skilled immigrants, and approve a small number of visas following these different rules. Follow the population of admitted immigrants over time to see how they perform on a number of indicators, and refine the visa regime accordingly.

I fully agree with the broad thrust of Manzi’s sentiments; test and learn is a fantastic motto. But given the empirical evidence that suggests low-skilled immigration is often highly beneficial in its own way, why limit the test purely to high-skilled options? Surely one can test alternative rules besides those aimed at picking up high-skilled immigrants? Experiment with different visas beyond just granting guest worker permits or green cards? Experiment with different ways of allocating visas altogether? Manzi remarkably omits one of the best test and learn examples of immigration policy I know of in the world today — the Canadian policy of allowing provinces to sponsor a certain number of visas for just about anyone they like.

Finally, Manzi in a throwaway remark suggests that the US can only get its immigration house in order “[o]nce we have reestablished control of our southern border.” I think this makes a remarkable assumption about history: that the US ever had totalitarian control of its borders in the first place. I’m not aware of empirical evidence suggesting that this is the case, and would be glad if anyone could show me that for a reasonable period of time in history, the US government actually tightly monitored and controlled a very large proportion (say >90%) of border crossings. The restrictionist-hallowed 1950s Operation Wetback was necessary in the first place because so many Mexicans were able to cross the border undetected.

A restrictive border control system that can detect and punish most to all unauthorised border crossings is the right-wing ideal, but for any other than the smallest or more geographically-isolated countries, I’m not convinced such a system has historically existed (at least outside totalitarian dictatorships) or can exist. Even North Korea faces difficulties with people smuggling South Korean soap opera DVDs and cellphones across its borders. A determined government can surely stop >90% of unauthorised border crossings, but only at substantial fiscal and political cost. For Manzi to blithely assume this can be so easily accomplished, and then move on to proposing his test-and-learn skills-based immigration policies, strikes me as strange.

None of this is to say Uncontrolled is not worth reading or ill-thought out. The immigration section of the book struck me for how out-of-place it seemed compared to other sections of the book. When I was in university I focused my studies in economics on education and immigration; Manzi has a lot to say on education, and I found little to quarrel with in his characterisation of the academic policy debates around education. Manzi has comparatively little to say on immigration, and unfortunately, it looks like he was not as thorough in his coverage of the issue. And if Jim Manzi, a smart and well-read businessman and public intellectual can make such egregious oversights and oversimplifications in discussing immigration, just about anybody can. The quality of public thinking and discourse about immigration is unfortunately disproportionately poor, compared to the potential it has to offer all of us.

US visa policy: a cross between Kafka, Orwell, racism, and aristocracy

It’s always fascinating to see an immigration lawyer’s take on how the immigration process works. In 2009, lawyer Angelo Paparelli responded skeptically to then-US Secretary of State Hillary Clinton when she said she would push for a streamlined visa process. Then, he noted the most important thing she could do here would be to pursue the amendment or repeal of an obscure section of the US Immigration and Naturalization Act, noting that this law, § 214(b), is responsible for 99% of all non-immigrant visa refusals:

The 99% rate of § 214(b) refusals is important because:

  • Consular officers are not given sufficient resources to spend more than just a minute or two to consider whether a visa applicant truly deserves to receive a visa.
  • INA § 291 requires a visa refusal if the applicant “fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa.”
  • Under the doctrine of “consular nonreviewability” (which more accurately should be dubbed consular absolutism) as interpreted by the federal courts and the State Department, decisions by consular officers on questions of fact (on which most visa refusals turn) are not reviewable by President Obama, Secretary Clinton or the Supreme Court.

In other words, imagine that you had one or two minutes to establish that you deserve a U.S. nonimmigrant visa. Your burden can only be met if it is “to the satisfaction of the consular officer.” No one but that officer has the power to decide.

Imagine if you had to prove to a government officer in 1 or 2 minutes why you should be allowed to attend university: you have to prove you won’t fail out, you’ll work hard, you won’t drop out (for any reason), and you’ll go far away after you graduate. Or imagine if you wanted to visit a popular tourist destination or travel for work, but had to prove to a government official in 1 or 2 minutes that you would go home afterwards (and wouldn’t abuse your travel approval to, say, move nearby or find a job there). Prove all this, in 1 or 2 minutes. To someone whose decision is final, and can never be overturned.

This particular provision is so noxious that it is cited multiple times in this UC Irvine report on international students in the US. Its repeal or replacement was an explicit recommendation of the report. The American Bar Association has (since 1990, according to Paparelli) recommended that the US government “establish increased due process in consular visa adjudications and a system for administrative review of certain visa denials, including specified principles.”

Yet a 2005 State Department report reviewing section 214(b) suggested the only way to improve it would be to expand it to include all classes of visas other than green cards. The State report explicitly considered the possibility of limiting consular officers’ totalitarian discretion, but rejected this out-of-hand on the basis that any publicly-published standards or requirements for visa approval ran the risk of increasing application fraud. The report stressed instead the importance of officers’ discretion and flexibility in feeling out visa applicants’ intent; no need for any explicit policy here. In other words, the US government doesn’t want you to know how you can get in!

The consequence of consular officers’ power to make or destroy lives in the span of a few minutes? Lord Acton: absolute power corrupts absolutely. Angelo Paparelli later followed up with some of the most ready-at-hand and egregious examples of consular abuse. He brought up two New York Times stories:

  1. Septuagenerian German theatre director Peter Stein being denied a visa because he refused to laugh at a consular officer’s joke and instead complained he had to stand for 2 hours waiting for his consular interview
  2. Former US consular officer Robert Olsen suing State for wrongful termination after he refused to implement a visa policy he considered racist and discriminatory against the poor

The second case is especially striking because Olsen presented documentation for his claims; the full judgment is especially worth reading, and I plan to write about it separately. Just note for now that some documented reasons for denial of US visas which Olsen complained about include gems like “Slimy looking[;] wears jacket on shoulders w/ earring” and “Bad Appearance. Talks POOR.” Paparelli concluded:

Regrettably for most refused visa applicants who lack the notoriety and influence of a Peter Stein, arbitrary consular decisions to deny a visa are virtually impossible to overturn… The Immigration and Nationality Act (INA), as interpreted by the courts, has enshrined in law “doctrines” of “consular nonreviewability” and “consular secrecy” (INA § 222(f) [8 U.S.C. § 1202(f)]) that in virtually all instances deprive the public, the courts and stakeholders (foreign visa applicants and their American sponsors) of a means to hold consular officers accountable. The interests of fair process, impartial consideration, respectful treatment, government transparency, the cultivation of a favorable opinion of the U.S. among citizens of other countries, and the application of solely lawful grounds to grant or deny a visa — all of these are thrown under the bus.

People in the US complain about feeling degraded when they have to choose between an X-ray and a pat down by Transportation Security Administration officials. How about placing your life in the hands of a government official who has the power to cut you off from your education (and, if the State Department had its way with H visas, your job) for something like “Bad Appearance. Talks POOR”? And no government official, not even the President himself, can do anything about it. US citizens may be tempted to complain that their treatment at the hands of the TSA makes them feel like they live in a police state. But it really is the over 1 million people who are refused US visas every year that truly know the feeling of a US government boot stamping on the human face forever. US visa policy:

  1. By design has no clear rules or guidelines
  2. Gives consular officers totalitarian power which not even the President can cross, thus empowering them to oppress people who:
    1. Come from the wrong racial or national background
    2. Look poor

Disdain for basic fairness and human dignity: that’s just plain US visa policy. Have a nice day folks.

The photograph featured at the top of this post is the identification photo of Wong Kim Ark, a descendant of Chinese immigrants to the US who successfully sued the US government for US citizenship in 1898.

US to foreigners: we’re a nation of immigrants! (If you’re a lottery winner, or Methuselah)

I recently stumbled across this interesting blog post by immigration lawyer Angelo Paparelli, where he talks about US visa refusals. The post is from 2009, responding to then-Secretary of State Hillary Clinton’s public statement that she was committed to streamlining the US visa process. Angelo mentions a staggering figure from the State Department’s fiscal year 2008 annual report:

In FY 2008, the State Department’s consular officers denied 1,481,471 nonimmigrant visa (NIV) applications under Immigration and Nationality Act (INA) § 214(b) (failure to establish entitlement to the requested NIV classification). While 19,837 (1.3%) of these refusals were overcome, almost 99% of the refusals prevented possibly deserving applicants from coming to the United States. [Note: These do not include the 64,516 refusals for specific grounds such as criminal conduct, public charge, material support of terrorism, etc.]

I checked the 2012 fiscal year figures and they are similar in every meaningful respect. To calculate the approval rate we need to bring in data on visas issued: with 8.9 million non-immigrant visas issued and 1.4 million non-immigrant visa applications rejected (virtually all because of 214(b)), we get an overall rejection rate of about 14%. I don’t know if that is too high or too low. But look at the data for yourself: these aren’t people with communicable diseases or criminal records. Over 1 million people have been refused student or visitor visas for the amorphous reason of “Failure to establish entitlement to nonimmigrant status.”

Presumably the intent is to deter fraud: there is a valid concern that non-immigrant visas can be used to get into the country and via overstaying, unlawfully “convert” the visa-holder to a de facto immigrant. But the main reason that is a problem is because the immigrant visa process itself deters bona fide immigrants! If you don’t believe this, one of Angelo’s colleagues recently crunched the numbers on current expected waits for some classes of lawful immigrants:

The wait for someone getting a visa today was as long as 24 years. The wait for someone starting today is much longer. An extreme example is Mexico F2B [Mexico-born “Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents”].

The last time I took the difference between the cut-off date and the present date, then factored in the rate of “advance,” the anticipated delay for someone applying today under that category was 395 years. Mexico F-1 [Mexico-born “Unmarried Sons and Daughters of U.S. Citizens”] was “only” about 80-85 years.

In the US, gun rights activists love to say that if you make guns outlawed, only outlaws will have guns. By outlawing immigration, the US has ensured only outlaws will immigrate. Abortion rights activists love to warn that if abortions are banned, the only thing that will change is that more women will get hurt or die from unlicensed backdoor abortion providers: if immigration is banned, unsurprisingly millions will risk life and limb to immigrate.

If wait times longer than the human lifespan are not a de facto ban, I don’t know what is. You might as well tell someone he can own a gun when he lives to be as old as Methuselah (a man from the Old Testament who lived for over 8 centuries), or tell her she can have an abortion when she wins the Powerball (an American lottery). You may scoff. But that is exactly what the US government tells the person looking to join their family or earn a honest living. “Sure, we’re a nation of immigrants! If you’re a lottery-winning Methuselah, come on in.” And it is worse for those 1 million+ people denied the chance to visit or study in the US: because the US government has essentially outlawed immigrants, it has similarly had no choice but to do the same for visitors too. Through no fault of their own, millions of foreigners have been punished for the US government’s failure to fix its own laws.

Germany is thinking about abolishing visas

Open borders advocates may have some allies over in Germany. In January this year, Deutsche Welle published this story with the unassuming title German companies want fewer visa restrictions (emphasis added):

Visa applications take too long, representatives from German industry say. They argue that companies lose money when a foreign business partner cannot travel. And they have concrete proposals to reform the system.

A deal worth millions was almost closed at a German agricultural fair, but urgently needed visas could not be issued to the foreign business partner. The telephone number in the documents was wrong, so embassy officials couldn’t reach anyone.

This is not a unique case, according to Andreas Metz, a spokesman for the German business community’s Committee on Eastern European Economic Relations. He cannot understand why old rules are followed to the word.

The visa system is actually a relic of the 19th century,” Metz told DW. “Today, there is a completely different method to ensure security, namely through a biometric passport and computerized information, which impede travel less significantly.” He hopes that visa requirements will be done away with eventually.

The discussion about unrestricted travel is also being discussed at the government level. German Economics Minister Philipp Rösler is pushing for more freedom. He recently called for Interior Minister Hans-Peter Friedrich to give up his opposition to a more liberal issuing of visas.

The Interior Ministry’s main argument is security. The ministry is in favor of simplifying the visa application procedure, but it is against getting rid of visas. It has to ensure that aspects related to security and migration policy are preserved, the ministry said.

It seems difficult to believe that the German government is considering open borders via the abolition of visas. I’m not sure what exactly is being meant here by abolishing visas, since I can’t imagine the German government is eager to invite the entire world to live in its borders. (The article goes on to cite concerns about Turks and Russians unlawfully settling in Germany if visas are abolished.) Probably what’s being envisioned is that visitors would not require visas, so anyone can enter — but settling would still require a residency permit.

(By the way, talking of political externalities — Philipp Rösler is an immigrant from Vietnam who was adopted by a German family, so one can argue he has something of a vested interest in loosening border controls.)

This isn’t true open borders, but it’s one way to start down the road there. As the German lobbyist indicates, the modern visa system is only going to become even more out of place with the advancement of technology. I can still envision scenarios where a reasonable government would require visas: I can see the case for requiring visas from countries which are hotbeds for terrorism or organised crime. But modern technology makes the case for abolishing visas only more compelling.