Let’s resume our journey along the road where the arts intersect with America’s dysfunctional immigration system. (Previous blog stops en route are posted here and here.) Two weeks ago, USCIS made news when it reportedly held up the approval of a visa petition for America’s Got Talent judge, Piers Morgan, thus requiring Larry King to extend his term as CNN evening host until November.

Today, we learn from The New York Times that a U.S. consular officer apparently caused the renowned German director Peter Stein to withdraw last July from a major Metropolitan Opera production of Boris Godunov, an operatic masterpiece by Russian composer Modest Mussorgsky. Although the show will go on with another director, the damage to America’s reputation by an intemperate consular officer remains. Here is how director Stein, a septuagenarian, describes his encounter with the U.S. visa man (as reported by The New York Times):

In June [Stein] went to the [U.S.] consulate in Berlin for a work visa for the Met job and was forced, he said, to stand for hours in a stifling room with 50 other visa applicants. When he finally reached the consular official, “He said to me, ‘Why don’t you laugh?’” Mr. Stein recounted. “I said, ‘I stay here for two and a half hours standing and I am an old man.’” The officer replied, “‘In this case you will not have a visa,’ and sent me away,” Mr. Stein said. Mr. Stein said the experience left him humiliated and deeply offended.

The Met ultimately flew an employee to Berlin to facilitate issuance of Stein’s work visa, but even with visa in hand, the consular encounter apparently traumatized the director, leaving him “‘terrified and demotivated’ out of fear that a similar incident could occur in the United States.”

The NYT did not report the identity of the seemingly ageist consular officer or suggest that the State Department did or should discipline him for what appeared to be an illegal visa refusal based on senior-citizen status (or perhaps other equally unlawful grounds to deny a visa, such as Stein’s failure to smile or his complaint about long waiting periods, inadequate seating or lack of ventilation in the consulate’s waiting area).

Rarely does the public hear about visa refusals based on clearly unlawful criteria such as race, ethnicity or national origin, even though many have decried the invidious racial and ethnic profiling that Arizona’s SB1070 would have required had a federal court not placed most of the AZ law under preliminary injunction. One unforgettable opportunity to peak behind the purdah of consular operations is a 1997 case, Olsen v. Albright, in which Federal Judge Stanley Sporkin lambasted the State Department for its institutionalized practices of discriminating against a wide array of groups and nationalities. Readers, I hope, will indulge me the following extended quote from Judge Sporkin’s decision, which found unlawful a consular manual distributed throughout American visa posts in Brazil:

The Consulate had established various policies which all officers were required to follow in adjudicating eligibility for nonimmigrant visas. Some of the policies focused on the applicant’s physical appearance and economic status. According to the Consulate’s manual: It is helpful to circle doubtful items on the [visa application form] so that other officers have an idea of why the applicant was g-ed [Blogger's note: This is probably a reference to Immigration and Nationality Act § 221(g), a catch-all ground of visa refusal]. Officers sometimes use abbreviations on the forms: RK = Rich kid LP = Looks poor TP = Talks poor LR = Looks rough TC = Take care . . . Some of the stated reasons for the denial of visas included: “Slimy looking[;] wears jacket on shoulders w/ earring,” . . . “LP. . . “LP!!!!!,” . . . (emphasis in original); “LR”. . . (emphasis in original); “Look Really Poor,”. . . “L[ooks] Scary,” . . . “Bad Appearance. Talks POOR,” . . . (emphasis in original); and “Looks + talks poor.” Id.

In addition to the codes based on physical appearance and economic status, the Consulate’s policies focused on the race, ethnicity, place of birth, and national origin of applicants. For example, the Consulate’s manual provided: KOREAN/CHINESE FRAUD Major fraud; hard to check. In general, they are almost always called for an interview. Visas are rarely issued to these groups unless they have had previous visas and are older.. . .

The manual also distinguished among applicants based on place of birth within Brazil. After identifying various cities “known for fraud” — most of them with predominantly black populations — the manual states: “anyone born in these locations is suspect unless older, well-traveled, etc.” . . . In addition to the manual, an April 1993 memorandum distributed to the consulates in Brazil states in pertinent part: “Arab and Chinese last names set off bells and whistles, regardless of what passport/nationality they may have.” . . .

The memorandum further states that “it is very easy to assume a false identity in Brazil and obtain a genuine passport and nationality and other documents. Most Brazilians have no interest in doing so, but Arabs and Chinese are two groups to worry about.” . . .

According to Consular Section Head Patricia Murphy: “Another body of guidelines is not post-specific but nationality-specific[.] [F]or example, Filipinos and Nigerians have high fraud rates, and their applications should be viewed with extreme suspicion, while British and Japanese citizens rarely overstay, and generally require less scrutiny.” . . .

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. This is the way the Congress, the State Department, the Department of Homeland Security (which now has the authority to deny a visa that a consul would grant) want the consular-visa system to operate.

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 (as I’ve noted here, here and here).

Just maybe, however, the law of unintended consequences will do what generations of immigration lawyers have failed to accomplish. Consular officers may soon have their interview colloquies with visa applicants recorded, if a bill (approved by the Senate Appropriations Committee last month and espoused by the travel industry becomes law). While only visa applicants will be videotaped, the interrogating voices of U.S. consular officials will at last be recorded. Thus, with no small measure of irony, high-fidelity sound, a form of the electronic arts, may create higher-fidelity adherence by U.S. consular officers to the rule of law and fair play on the visa stage.

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