Americans are far more welcoming and warm-hearted than the reputedly cold-hearted Swiss, we like to believe. As the New York Times reports today, the Swiss people are set to vote on a ballot measure of dubious constitutionality that would let local citizens decide in secret and give no reason for rejecting a fellow townsperson’s application for naturalization.
The Times’ article tells the sad tale of Ms. Milikije Arifi, a 30-year legal resident of Switzerland originally from Macedonia, who is fluent in the predominant Swiss tongue (German), speaks German with a Swiss accent, has complied with all laws, paid taxes, and proudly supported the national soccer team. The Town Council of a Zurich suburb denied her naturalization application in a secret ballot, offering “insufficient integration” as the basis for its refusal of citizenship. Milikije’s lawyer suspects another motive:
“This is clearly a case of arbitrariness . . . The council thinks this woman looks like a Gypsy with her colorful clothes and her jewelry, so they just reject her in this succint Swiss way.”
America is not Switzerland. Citizenship through naturalization is a privilege the U.S. gladly grants to eligible foreign-born permanent residents who play by our rules, reside here for the required period of physicial presence (usually five years), and prove they can communicate in English and understand a modicum of American Civics and History. In our system, there is no test for “integration,” and if someone is denied naturalization our examiners give them a full explanation in writing. Indeed, U.S. Citizenship and Immigration Services (USCIS), the folks who decide naturalization applications, proudly displays on its website a photo of new citizens, a rainbow of races and gleeful peoples, proudly waving miniature American flags.
A look behind the scenes of this festive peoplescape, however, reveals a Swiss-like power to bar the path to citizenship much earlier in the process and likewise offer no reason whatsoever. Most foreign nationals who are granted U.S. permanent residency, the first requirement for citizenship, must first pass muster before an American consular officer at a U.S. embassy or consulate abroad. Consular officials enjoy absolute power to decide the facts necessary to establish a foreign applicant’s eligibility for a U.S. visa. And American courts have repeatedly upheld this fact-finding form of consular absolutism expressed in the decision to grant or deny a visa. If the facts were on the table, however, and the consular officer had to explain his decision in writing, perhaps that would at least salve the hurt feelings of a refused visa applicant.
Alas, this is not the law of the land. Immigration and Nationality Act (INA) § 212 includes in subsection (a)(3) among the categories of foreign persons who can be refused a visa:
“Any alien who a consular officer . . . has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in . . . any . . . unlawful activity.
Thus, discovery of an adverse “fact” is not required; a consular officer may simply refuse a visa if s/he has mere “reasonable ground to believe” that the foreign citizen will enter the U.S. to engage “incidentally” in any unlawful activity. Thus, the presumption of innocence and the requirement of criminal conviction that satisfies due process are not needed. Apparently, spitting on the sidewalk in violation of a city ordinance would be sufficient. Worse yet, another section of the immigration law, INA § 212(b)(3), allows the consul to give no reason whatsoever for the wishy-washy “reason-to-believe [intent-to-engage-in]-unlawful-activity” basis for refusal of a visa.
So, yes, our laws (which reflect the choices of the people we elect, and presumably, our own values) are not like those of the Swiss. We are more efficient (we can keep people out much earlier than the Swiss). We are also more parsimonious with words (we need not even be “succinct” – we can merely remain mum).
Rather than engage in self-congratulation at our supposed moral superiority, we Americans should look more often behind the scenes of our immigration laws and procedures. Perhaps we’d find Oz, a supposed wizard who is merely “an ordinary, American man who has been using a lot of elaborate magic tricks and props to make himself seem ‘great and powerful.’”