The art of the denial

The 2017 African Global Economic & Development Summit, put together by a firm called the Global Green Development Group and hosted on the University of Southern California campus, took place in earlier this month.

No one from Africa attended.

About 100 people were slotted to come to the conference from Africa — from filmmakers to government officials, from Guinea to Ethiopia to South Africa. But all of their visas to come to the US for business travel were rejected. Every. Single. One.

Meanwhile, a series of diplomatic cables, sent in recent weeks from Secretary of State Rex Tillerson, told officials at US consulates around the world to prepare to ask a lot more questions of people applying for visas — including everywhere they’d lived and worked for the past 15 years.

If you’re already worried about President Donald Trump’s immigration policy, this might all seem like evidence of “extreme vetting” — a policy promise Trump never clearly defined on the campaign trail, but which has often been assumed to mean some sort of overhaul of the procedures by which the US currently decides whom to let into the US to immigrate, work, or visit.

But none of this represents a revolutionary break with the existing visa system.

That’s exactly the problem.

The federal government has vast, nearly unchallengeable power to deny individuals visas to enter the US. And the process by which it determines whether someone deserves a visa provides plenty of opportunities for subjective judgments or straight-up profiling.

As a matter of law and policy, visa denials are a wide-open door the Trump administration can push on. Without any sort of top-down mandate from Trump or Tillerson, the administration could very easily, but quietly, make it a lot harder for a lot of people to come to the United States.

The playing field for visas is already uneven. Maybe suspiciously so.

To Mary Flowers, the head of the Global Green Development Group, visa denials aren’t a sudden, Trump-driven occurrence but a particularly egregious example of a bigger pattern of suspected discrimination: “This is something that’s been going on for a long time.”

“Every year,” Flowers says, “we invite countries from all over Africa to summit with American businesses.” And every year, a substantial number of those invited — often around 40 percent — get their requests for B-2 visas (for business travel) denied.

Going from a denial rate of 40 percent to 100 percent for 2017’s conference was a difference of degree, but not of kind.

“Before, it was sort of a random thing,” she says. “This time, it’s across the board.”

As “random” as individual cases seemed, however, Flowers had already begun to suspect that there was some discrimination against African visa applicants at consular offices. After all, while the State Department says that most visas are approved, actual denial rates for B visas (which include travel for both personal tourism and business) vary tremendously by country.

And many of the countries with the highest denial rates — the ones least likely to get approved to travel to the US — are in Africa.

Even this map is a little misleading, because it only covers people who had to apply for visas to begin with. And most people in Europe, as well as Canada, Australia, and some East Asian countries, don’t have to apply for visas at all if they’re not planning to stay in the US longer than 90 days (or, in some cases, longer). If you count the people who were able to travel to the US without visas, the true denial rates for those parts of the world would be much lower — and the high denial rates for West Africa and Central Asia would pop out even more.

If you’re Flowers, it’s enough to raise some eyebrows. After last year’s conference, Flowers says, she contacted her member of Congress, Rep. Karen Bass (D-CA), and told her about the problem attendees were having with their visa applications. Rep. Bass contacted the State Department. “We started asking them why,” Flowers says.

You can only travel to the US if the consular officer trusts you won’t try to stay here

There’s no right to be granted a visa to enter the US. Having all your paperwork in order and even paying your application fee doesn’t guarantee you a slot.

The Immigration and Nationality Act offers a list of reasons that the State Department can find someone “inadmissible” to the US. No admissibility, no visa. And whether or not someone falls into any of those grounds of inadmissibility is rarely clear-cut — and involves a lot of discretion, not to say guesswork, on the part of the consular officers processing their application.

For one thing, some of the rulings of inadmissibility on criminal or terrorist grounds are vaguer than you might expect — such as the prohibition on admitting anyone who’d provided “material support” to a terrorist group. The way the State Department interpreted that restriction in Syria, before being loosened slightly at the behest of Congress, led to unknown numbers of Syrian refugees being banned for having once done as little as give “a sandwich or a cigarette” (in the words of Sen. Dick Durbin (D-IL)) to a rebel group.

But even broad definitions of terrorism don’t ensnare most applicants. The bigger problem is in two near-universal requirements that stem from an innocuous-seeming principle: You have to be honest about who you are and why you’re coming to the US.

In theory, simply getting something wrong on a visa application or in a visa interview doesn’t ban you from getting the visa. But if you say something wrong to a US official that’s deemed to be “material” to your application, and the consular officer decides you’ve done so “willfully,” you can’t be admitted to the US. (The consular officer doesn’t have to conclude that you were trying to obtain the benefit fraudulently in order to stamp you with “willful misrepresentation.”)

The longer and more involved your application process is, and the more information the US government demands from you, the more likely you are to get tripped up in an inconsistency — in other words, the more skepticism you’re under from the US government at the beginning of the process, the easier it is for them to discover a willful misrepresentation from you later on.

Establishing that you’re only going to the US to satisfy the purposes of your visa is, often, an even higher bar to clear. Anyone who’s applying for a non-immigrant visa (a visa that doesn’t give you the ability to apply for a green card, which includes everything from tourist and student visas to most work visas) has to affirmatively prove to a consular officer that they will not try to stay in the US. There’s a “presumption of immigrant intent” — the US assumes that everyone coming to visit wants to live there, until shown otherwise.

The way to overcome the “presumption of immigrant intent,” the State Department says, is to demonstrate that you have “strong ties” to your home country:

Ties are the various aspects of your life that bind you to your home country. Strong ties vary from country to country, city to city, and person to person, but examples include:

—Your job;

—Your home; and/or

—Your relationships with family and friends.

While conducting visa interviews, consular officers look at each application individually and consider the applicant's circumstances, travel plans, financial resources, and ties outside of the United States that will ensure the applicant’s departure after a temporary visit.

Someone denied a visa can (depending on the reason for the denial) apply for a waiver to get the visa anyway. But waivers of visa denials are extremely rare.

If your waiver gets denied, or if you’re ineligible for a waiver to begin with, you’re out of luck. You can’t take the government to court to appeal a visa decision. The judicial doctrine of “consular nonreviewability,” UC Davis law school dean Kevin Johnson told Vox in 2016, “generally means that there's no judicial review of the consular officer decisions, at the various embassies, of whether to grant somebody a visa or not to enter the United States.”

As recently as 2015, the Supreme Court ruled that visa applicants don’t even have a right to know the details about why their visas were denied (and US citizens asking on an applicant’s behalf don’t either).

All the State Department has to do is tell the visa applicant which of the “inadmissibility” standards he triggers. It doesn’t need to tell him anything else. “[W]hatever the procedure authorized by Congress is,” the Court ruled in 1950 (in a decision that is still a precedent today), “it is due process as far as an alien denied entry is concerned.”

In practice, though, that “due process” can be pretty cursory. It can take as little as, say, 120 seconds.

Ed Jones/AFP via Getty

You can be denied if “you have no good reason to travel to the USA”

As part of her investigation with Rep. Bass, Mary Flowers asked would-be conference attendees to document their experiences applying for visas.

What they recorded was a process that was every bit as arbitrary as Flowers worried it was — and worse. One would-be attendee, a filmmaker from Ghana, sent Flowers a one-line email: “Just exited my interview. My heart is heavy right now.”

Some would-be attendees said their interviews were “less than two minutes” long, Flowers says. And instead of asking questions that Flowers believes “would be relevant, demonstrating the purpose of their visit,” they asked “very irrelevant questions, particularly this year” — things like, “‘How many children do you have? What are their ages?’”

Then, summarily, their visa applications were rejected.

Some were sent away from the consulate with forms — some told Flowers it was pink; others said it was green — saying they “didn’t meet the qualifications for travel,” Flowers recounts. One qualification listed: having children in their home countries.

The Africa conference in California is the second example in the Trump administration’s first two months of travel visas being summarily denied after suspiciously brief interviews. In February, the entire women’s national soccer team of Tibet was denied visas to travel to Texas for a boys’ soccer tournament.

Cassie Childers, an American citizen who serves as an organizer for the team, posted an account of the Tibetan soccer team’s ordeal to a fundraising page (they had spent half their yearly budget on nonrenewable fees for their ultimately rejected visas):

When they finally reached the glass window, they were lucky if they were asked more than one or two questions. Quickly, harshly, without any care or interest, the officers gave them each a glance, asked a vague question or two, and made a snap judgement to either accept or reject the person for a visa. Most were rejected. No explanation was given. No reason. […]

Everything was filed properly. All the invitations were in order. The conditions were perfect. The girls were asked what position they played on the team, and if they had any relatives in the US. The officer did not even look at their supporting documents. That’s it. Rejected. The only explanation given: “YOU HAVE NO GOOD REASON TO TRAVEL TO THE USA.”

The vetting that’s already in place is another step to trip up visa applicants

All of this was happening, mind you, even before the secretary of state sent a cable to consular officers around the world telling them to prepare to step up visa security for whole populations of people.

The cable — sent on March 15, while the State Department was preparing to implement President Trump’s second attempt at a travel ban — told consulates in each country to identify “population sets” of people who might require further screening, and to be prepared to, on a regular basis, ask more questions of those people — including everywhere they’d lived and worked for the past 15 years, and all their accounts on social media.

John Macdougal/AFP via Getty

Parts of the cable have been put on hold while the federal courts review the constitutionality of the travel ban, and while the Office of Management and Budget assesses the effects that more visa scrutiny (and therefore, more hours per consular officer per application) have on the State Department’s budget. (The cables walking back the initial requests haven’t been published, and there’s some disagreement between Reuters and the New York Times about which parts are officially on hold.)

Tillerson’s cable didn’t create any new vetting systems, though. It simply laid the groundwork in the existing system for giving secondary scrutiny to visa applicants: the Security Advisory System (SAO) system.

Consular officers are required to ask the State Department to provide an SAO in certain circumstances: if their names have come up in a terrorism database, for example, or if the applicant is from one of 33 countries (all but two of which, Cuba and North Korea, are majority Muslim). But they have pretty broad authority to ask for an SAO if they have any doubts about an applicant’s eligibility.

Once an SAO has been requested, State Department officials go through relevant security databases and check for information about the applicant; the applicant might also be required to answer more questions about his background or his purpose in the US. Getting an SAO adds weeks or months to visa processing time — which makes it hard for people applying only a few weeks or months in advance of a short trip. And the more information the State Department has about an applicant, the more opportunities it has to decide that he was engaged in some form of willful misrepresentation.

Tillerson’s cable asked consular officers in each country to identify “populations” that might be particularly likely to engage in fraud to get a visa, or violate the visa when they arrive, and start flagging those “populations” for SAOs more often. And he asked consular officers to start asking more questions when interviewing anyone who might be subject to an SAO — including social media handles and their past 15 years of work and residency history — presumably so that State Department officials had more information to compile the SAO, and so they could more easily block a visa for “willful misrepresentation” if an inconsistency were discovered.

There’s a cost associated with overloading the SAO process too much. Not only is it likely to delay visas even for people who obviously qualify for visas (and don’t need an SAO to prove it), but SAOs can only put an application on hold for a certain amount of time. But there could be a lot of room for the State Department to ask for SAOs for more kinds of people more often, without affecting anyone but visa applicants themselves — and anyone in the US waiting for them.

The fine line between a rule of thumb and profiling

What constitutes a “population” that deserves higher scrutiny? How do you judge if someone has “strong ties” in their country, or if their reason to come to the US is “good”?

These seem like separate questions. But they’re not. They all point to the dirty little secret of visa processing.

Because so many of these decisions are ultimately subjective, consulates and the State Department come up with rules of thumb to keep them from being applied totally arbitrarily. But the rules of thumb often shade into straight-up behavioral profiling.

The African would-be conference attendees were quizzed on their children, because claiming you have children makes a visa application more likely to be granted — it’s evidence of a strong tie. Childless men are scrutinized more heavily; conversely, men who say they have children must be quizzed to make sure they’re not “willfully misrepresenting” the strength of their ties to their home countries.

Sometimes this policy is all but stated outright. A blog post from a few years ago about the consulate in the Philippines alleged that any single woman under the age of 40 would be denied a US visa because her ties to the Philippines weren’t strong enough.

The line between behavioral profiling and profiling based on things that people generally consider off limits for discrimination — age, gender, race, nationality — can be blurry. And there’s a fundamental problem of power: People who are marginalized within their countries, or from poorer or less stable parts of the world, are more likely to come under scrutiny when they apply to come to the US.

Nicholas Kamm/AFP via Getty

Take the Tibetan women’s soccer team. Tibetans often do come to the US on temporary visas and then seek to stay permanently — asking for asylum from persecution by the Chinese government. That might give a consular officer reason to be suspicious of a Tibetan applicant’s “immigrant intent.” But the result is that Tibetans are not only persecuted in their home country; they’re also denied opportunities to travel to the US because of that persecution.

Something similar has happened to Syrians in recent years: Many fewer Syrian applicants for temporary visas were accepted in 2016, possibly because of US fears that they wouldn’t return to their civil-war-torn country. Of course, this might also have been because the chaos of Syria’s civil war resulted in many Syrians coming into contact with groups the US has labeled “terrorists”; something similar has happened to certain visa applicants from Afghanistan, like the husband of a US citizen who had once worked for the Taliban. (The State Department didn’t offer details about the reason for the denial, but the man’s wife and lawyers assumed it was the Taliban connection.)

And at a certain point, anyone who wants to travel to the US from somewhere worse off than the US might incur a suspicion of “immigrant intent.” That’s one likely reason for the high denial rates from Africa. It could just as easily be applied to anywhere else on earth that isn’t the US — especially those places from which consular officers, or the administration above them, are concerned about immigrants changing or diluting American culture.

Some discrimination is theoretically illegal. But good luck proving it.

In theory, the government isn’t allowed to engage in certain types of blatant discrimination in issuing visas. A provision of the Immigration and Nationality Act prevents the government from denying anyone a visa “because of the person's race, sex, nationality, place of birth, or place of residence.”

This is one argument being used in the legal challenge of Trump’s temporary ban on visas from several countries. But when it’s not an outright ban, just a decision-making factor, it’s much less clear that the INA provision applies. After all, the government currently flags people for SAOs based on their nationality on a regular basis.

Even if the government were acting illegally in how it considered visas, however, it would be extremely hard to call them out on it. Because, again, you can’t challenge a visa decision in court.

The key, UC Davis’s Kevin Johnson told Vox in 2016, is that as long as there’s still “individuated decision-making” about a particular visa applicant — as long as her application is being considered and rejected on its own, however briefly — it’s subject to the principle of consular nonreviewability.

But here’s the catch: Consular nonreviewability limits the standing for a court challenge of a visa denial. It doesn’t prevent judges from considering whether a visa policy is discriminatory on any grounds.

And on at least one occasion, a judge has been able to split the difference.

In the late 1990s, consular staffers in Brazil were instructed to be stingy with visas to people with Chinese or Korean surnames — due to “high rates of fraud” among those groups — and to residents of particular towns. Concerns about fraud and lack of “strong ties” led staffers to mark applications with codes for “Looks Poor,” “Talks Poor,” or “Looks Rough” — or even to write that an applicant who “wears jacket on shoulders w/earring” was “slimy looking.”

An officer at one of these consulates, Robert E. Olsen, was fired by his superiors for not processing visas fast enough. He sued them for wrongful termination, claiming he’d really been fired for refusing to go along with their profiling — that he was resisting an unconstitutional order. His superiors countered that they had simply identified particular populations likely to engage in fraud, or to commit crimes in the US, and were putting their knowledge into practice by subjecting some people to greater scrutiny.

In 1998, a federal judge agreed with Olsen, ruling that the Brazilian consulate’s visa policies were illegal: “The Consulate's visa policies stand in direct opposition to the progress this country has made in eliminating discrimination in the context of immigration law.”

In practice, this was a symbolic victory — at least for the visa applicants. Even though the grounds on which the Brazilian consulate subjected some applicants to greater scrutiny were found to be unconstitutional, no decisions made on those grounds were ever reviewed — no one who’d gotten a visa denied, and who’d been labeled “Looks Rough” during an interview, got their file reopened.

Andreas Rentz/Getty

And in many cases, there isn’t the obvious paper trail left by the Brazilian consulate of the ’90s. Without that, people who suspect discrimination, like Mary Flowers, are in the position of trying to prove it by pointing to outcomes — which isn’t a persuasive way to do it.

“If you could show statistics showing that 100 percent” of a particular group “are getting denied, then you might be able to file some sort of challenge,” Kevin Johnson says — and even then, only if you could find standing to sue on their behalf. But as long as some people’s visa applications still are getting approved, the government can argue there’s still individualized determination, and whoever’s failing their tests is failing for more legitimate reasons. And 100 percent of people invited to a particular conference isn’t at all the same as 100 percent of visa applicants from a particular country.

Scrutiny might both serve legitimate policy goals and have huge — and disparate — consequences

Mary Flowers hadn’t heard back from the State Department by the time her conference ended. Congressional pressure is certainly more effective than nonexistent judicial review, but the Trump administration has occasionally shown little need to respond to congressional concerns or inquiries — especially when they come from Democrats.

The executive branch has tremendous discretion over visa grants and denials for a reason: It’s accepted that the federal government has an interest in deciding whom it wants to allow into the US, and that people don’t have an inalienable right to come here.

The specific grounds of inadmissibility make sense, too. Take the requirement that applicants for nonimmigrant visas have to demonstrate “strong ties” to their home country, as a way to show they won’t abscond into the US. The US doesn’t want people to overstay their visas and become unauthorized immigrants — visa overstays account for about 40 percent of all unauthorized immigrants currently living in the country — and the category of a “nonimmigrant visa” exists precisely so the US can have different requirements for who gets to travel here temporarily and who gets to stay here for good. It’s logical that someone without a good reason to return home might be more willing to stay in the US, regardless of what they said in a visa interview.

There’s never going to be an objective way to evaluate “strong ties,” or to distinguish between “willful misrepresentation” and an honest mistake, or to divine when “material support” has been coerced versus when it was freely given. All of these are going to be subjective. As long as they’re subjective, they are subject either to the whims of individual consular officials or to the rules of thumb offered from the top — the profiles.

The Trump administration has demonstrated an interest not only in protecting spurious terrorism from visa holders but in preventing fraud and visa overstays. Those reasons might easily lead to a tighter standard for granting visas, especially for suspect populations.

Such a policy would almost certainly reduce the number of people allowed to come to the US. It could do so substantially. It could have a disparate impact on the world’s marginalized. And none of that would be enough to stop it.

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