The Daily Demarche
Saturday, July 09, 2005
Religious Visas- a threat?
Occasionally we receive e-mails that are too good to resist sharing, and we invite the author to do a guest piece, or re-publish something he or she has posted elsewhere. This is one of those e-mails that evolved into a guest piece. The text below is unedited by The Daily Demarche (with the exception of reformatting links for this space). The author served a visa tour in a high volume post, and speaks from experience. - Dr. D

The LA Times has a story about the currently-incarcerated Lodi imam being known in Pakistan for his fiery anti-American rhetoric, but nonetheless receiving a visa to come to the US as a religious worker. The story may be found here.

The story points out that the imam had made flagrantly anti-American speeches, but that the consular officers who interviewed him did not see the imam as a threat to the US. There are three possibilities for why that is, which I do not know, not having seen the imam's application or the vice-consul's notes. One is that no one in the Embassy knew about what he was saying in other settings. Two is that someone knew, but no one thought to enter any lookout on him in the State Department's computer database (called CLASS). Three is that the vice consul was aware of everything that he had said, but that the officer didn't feel there was any grounds for denying the visa.

The reporter highlighted the problem of vice consuls on the visa line not knowing everyone's background, but the article missed the larger hole in the R-1 visa, which is that the State Department's regulations (the Foreign Affairs Manual) do not permit consular officers to refuse an R-1 under section 214(b), which is the catch-all refusal used to turn down applicants (tourist, business, student, etc) that the officer feels are not being truthful, or has other suspicions about. Some categories, like H-1bs and L-1s (the visas used by temporary workers, particularly in software engineering for example), are exempted from 214(b), and R-1s are as well (although that is an interpretation found in the FAM, not actually part of the text of the Immigration and Nationality Act, like it is for H-1bs). Consular officers use 214(b) as an important anti-terrorism tool, as it is the only generic refusal that lets them say no to someone who gives off bad vibes, and it is a serious flaw that someone going for a religious worker visa (which could very plausibly include some extremists whom we wouldn't want in the country) is exempt from that.

So, in theory, a vice consul on the visa line could find this imam in front of him or her, and know exactly what this imam had preached about the need to destroy America, but have no plausible grounds to turn down the visa application- it is pretty obvious that the imam is a qualified member of his religion, and if he has an invitation from a real mosque, then the vice consul cannot refuse under 214(b). The only option would be to try to refuse under 212(a)(3), which is for someone deemed to be a terrorist threat, but this is unlikely to stick based only on inflammatory rhetoric. This is what the reporter missed in this story- the fact that R-1s are exempted from 214(b) is a serious hole in our first line of security, the visa issuance process.

Those of us who have served on the visa line would love to have stronger tools to refuse suspect cases. 214(b) is a great tool for most non-immigrant visas, but the concept (a catch-all, non-appealable refusal) needs to be extended to other categories to allow us to refuse those who give us "bad vibes," even if they haven't yet broken any laws. Remember, the "20th hijacker" was refused entry by an immigration inspector who couldn't identify anything wrong with him, but just had a funny feeling. Like it or not, that's our best defense at catching someone who intends us harm but hasn't yet committed any crimes, and our consular officers need to have more flexibility to turn those people down

Criticalreactor
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dé·marche 1) A course of action; a maneuver. 2) A diplomatic representation or protest 3) A statement or protest addressed by citizens to public authorities.

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