Discriminatory Immigration Policies Won't Make Us Safer

In the wake of the devastating attack in Orlando, half of all likely voters now support a temporary halt on Muslims entering the United States, compared to 40 percent in May. In response to the attack, presumptive GOP presidential nominee Donald Trump expanded his proposed immigration ban to include any country with a history of terrorism against the United States (even though the perpetrator was a U.S. citizen).

Quietly enabling Trump’s vision is the Visa Integrity and Security Act of 2016 (H.R. 5203), introduced in May by Rep. Randy Forbes (R-VA). The legislation proposes substantially increasing the burden of proof on visa applicants for the putative purpose of protecting national security.

But changing the standard by which consular officers make visa decisions will not make the United States safer from terrorist threats. On the contrary, it may threaten security by burying embassies in paperwork, while enabling official discrimination against would-be immigrants based on their nationality or religion.

For the most part, Democrats and Republicans are united in their opposition to calls for anti-Muslim discrimination. House Speaker Paul Ryan denounced Trump, emphasizing that we must respond to the Orlando attacks by strengthening national security rather than seeking to ban entire nationalities and religions. Noting that “Muslim bans and immigration reform would not have stopped him [the Orlando shooter],” Hillary Clinton, the presumptive Democratic presidential nominee, suggested that Trump was trying to scare Americans into supporting blanket refusals of entry based solely on nationality or religion.

Sadly, it seems to be working. Surging support for official discrimination against Muslims offers a promising climate for this new legislation, which would likely achieve some of Trump’s discriminatory goals.

Several provisions of the bill would, with minor revision, probably improve national security. But the proposal to tighten the rules for issuing visas could be a harmful backdoor restriction on legal immigration, while doing little, if anything, to keep Americans safer. In practice, the proposed change would effectively increase the amount of paperwork flowing through visa offices and offer bureaucratic cover for denying entry to potential immigrants from war-torn areas like Iran, Iraq, Libya, Somalia, Syria, Sudan, and Yemen.

The current standard of proof — “to the satisfaction of the consular officer” — requires a visa applicant to persuade the consular officer that the facts he or she asserts are more probably true than not true. For example, an applicant may be asked whether she intends to return home following the expiration of, say, a student visa, and the consular officer decides whether her assertions are probably true. “Clear and convincing evidence” is a significantly higher burden of proof than the current evidentiary standard, requiring visa applicants to persuade consular officers that it is highly probable — or substantially greater than a 50 percent likelihood — that the facts they assert are true.

Under the new standard, the applicant must somehow prove to the consular officer that she will return home when her visa expires. Substantially increasing the burden of proof to this level —  without convincing evidence that it’s necessary or likely to be effective — is arbitrary at best and excessive at worst.

To make a case for a visa, an applicant has just two types of evidentiary value at his disposal: documentation and the interview with a consular officer. In the absence of some magically reliable turn of phrase or truth serum, the only additional evidence an applicant could use to satisfy a clear and convincing burden of proof would be more documentation. But since so much of the visa process centers around intent, more documents aren’t going to help, either. In fact, one U.S. Embassy website states that “applying for a non-immigrant visa is not primarily a documentary process. Visa officers seldom dwell upon documents. What is at issue is intent.”

Excess documentation is, in any case, overly burdensome for the consular officer to review. And it may add significant processing delays, due to review time and record keeping. In fact, overly-inclusive document collection threatens the integrity of the national security system, hiding the needle of danger in an ever-larger haystack. Finally, it would strand many badly needed foreign workers pointlessly in limbo or flat out deny them entry.

There are always risks associated with immigrants, especially those from conflict zones. Yet, most domestic terrorists are born in the United States or arrive at a very young age. The Orlando shooter Omar Mateen was born in New York; Rizwan Farook, the mastermind of the San Bernardino shootings, was born in Chicago; and Muchamma Youssef Abdulazeez, who murdered four Marines and a sailor in Chattanooga, came to the United States at the age of six. Prior to the Orlando shooting, more Americans were killed by far-right-wing attacks than by violent jihadist attacks in the United States.

If we want more national security measures to prevent homegrown terrorist attacks, limiting immigration isn’t the answer. The answer lies with reporting potential threats, investigating those reports, and preventing dangerous people from accessing certain weapons.

What’s more, the current vetting process is thorough and rigorous. In conjunction with the burden of proof, it lends itself well to empowering consular officers to make decisions based on their experiences with diverse applicants. Slyly changing the burden of proof for all visa applicants sends a message to the rest of the world that the U.S. has no real interest in securing freedom and safety for all people, instead allowing fear to undermine a working immigration process.

We endanger ourselves by misidentifying the threat and by enacting security policies that discriminate against Muslims — whether incidentally or by design.

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