- The Washington Times - Thursday, January 17, 2002

According to The Washington Times, Assistant Secretary of State for Consular Affairs Mary Ryan recently advised American consular posts that "in keeping with the spirit of American justice and fairness [pre-September 11 rules] must be followed." Specifically, the diplomatic cable instructed that "consular officers should not refuse visa applicants … without first giving the applicant an opportunity to be interviewed in person," while indicating that "this policy is in keeping with the spirit of American justice and fairness." Ms. Ryan closed with the reassurance that the State Department has "been working with interested parties on [Capitol] Hill to ensure that new measures taken to improve security do not undermine America's fundamental ideals as a nation of immigrants."

In the wake of the September 11 terrorist attacks most of whose perpetrators entered the United States with visas issued by the State Department such instructions are perplexing. One would expect the chief of American consular services to issue a strident call for increased vigilance, rather than emphasizing important but very secondary considerations of "fairness." After all, who is really the consul's client? The foreign visa applicant who (indeed) deserves a fair hearing, or the American people paying for the country's first line of defense? Unfortunately, Ms. Ryan's comments (even if they were taken out of context in news reports) reflect the State Department's priority on public diplomacy over law enforcement.

Indeed, the Immigration and Naturalization Service estimates that almost half of the 7 million to 8 million illegal aliens living in the United States entered on (putatively) non-immigrant visas issued by the State Department. This is much too high a proportion to represent isolated mistakes by a few naive consular officers. Instead, it represents a systematic refusal to apply the law conscientiously, because too many visa refusals might hurt public relations. Immigration law could not be clearer: "Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer … that he is entitled to a nonimmigrant status." In other words, the burden of proof rests on the applicant to show, before he can obtain a visa, that he will return to his home country. Yet, in spite of the law and the numbers, the State Department approves a whopping 80 percent of visa applications each year. Apparently "the people gotta have their visas," as one of my consular bosses at the U.S. embassy in Mexico City was fond of saying.

Immigration has played a positive role in American history (I have a personal appreciation for this, as my mother was naturalized as a U.S. citizen just two years ago). Laws exist as an attempt to ensure that immigration remains a positive influence, but these laws don't mean a thing if their guardians ignore them. The current debate on U.S. immigration policy, exacerbated by the security implications of September 11, will amount to nothing unless we take a long, hard look at the foot soldiers of immigration law, the U.S. consular corps. We must also examine the priorities of their generals, who preach customer service and public diplomacy to the detriment of law enforcement. And it may ultimately be necessary to remove all immigration functions from the State Department, and assign them to an agency that does not face the inherent conflict between diplomacy and a responsibility to administer the law.

The diplomatic cable mentions the "fundamental ideals [of] a nation of immigrants." Granted, fairness to foreign applicants and the customer service so stressed in consular manuals are important and a basic human courtesy but do they really amount to a "fundamental" ideal? More accurately, the fundamental American ideal is that things here are done differently: In the American Experiment, laws bind officials, not the contrary. Article I, Section I of the U.S. Constitution plainly states that "All legislative powers herein granted shall be vested in a Congress of the United States" not in the office of assistant secretary of state for consular affairs, and not in any department of the U.S. government; and that includes de facto rewriting of immigration law.

We must repair many parts of a broken immigration system. It may also be time to explore the practicality of liberalizing access for those who cross borders for peaceful purposes, while removing the distortions caused by the U.S. welfare state. Either way, it is clear that we must revisit our current immigration policy. But that is not the point any and all changes to the law must be made by Congress, not by bureaucratic fiat. The rule of law is so crucial that we must not allow it to be eroded, no matter how laudable the motives of those who would usurp legislative authority.

In the case of immigration, the State Department's actions are especially ironic. Indeed, the rule of law is one of the main foundations of the very American economy that employs immigrants who seek the American Dream, while fleeing homelands that lack the rule of law and consequently strong economies.

Nikolai Wenzel, a former foreign service officer and vice consul, is director of academic programs at the Atlas Economic Research Foundation in Fairfax.

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