Thu May 3, 2007 by Anil Kalhan
The Visa “Loophole” and the Pakistani Penalty (Dorf on Law)
(Posted at Dorf on Law)
According to the New York Times, U.S. officials are concerned about what the Times calls a “visa loophole“: the ability to enter the United States as a short-term, temporary visitor without a visa. The headline does not make clear precisely what the supposed “loophole” is. If the Times means to refer to the Visa Waiver Program as a whole, which authorizes visa-free entry of visitors from 27 countries that extend the same privilege to U.S. citizens, then that must be one of the biggest “loopholes” in human history, since approximately 13-15 million people — representing roughly half of all nonimmigrant admissions — enter the United States under the program every year. So surely the Times’ characterization rests on a more particularized, irregular, and unanticipated concern?
In recent months, the homeland security secretary, Michael Chertoff, has opened talks with the government here on how to curb the access of British citizens of Pakistani origin to the United States. . . . Among the options that have been put on the table [by U.S. officials], according to British officials, was the most onerous option to Britain, that of canceling the entire visa waiver program that allows all Britons entry to the United States without a visa. Another option, politically fraught as it is, would be to single out Britons of Pakistani origin, requiring them to make visa applications for the United States.
Oops. Maybe not all that particularized, since (according to the Times) approximately 800,000 UK citizens are of Pakistani descent. And not the least bit irregular, since the government has implemented the Visa Waiver Program pursuant to criteria established under a series of statutes dating from the mid-1980s. A wag of the finger to the Times, and a tip of the hat to Siddhartha Mitter — as he notes, to characterize as a “loophole” the ordinary application of U.S. immigration laws to UK citizens of Pakistani descent in precisely the same manner that they apply to any other UK citizen seems, “wittingly or not, an appeal to prejudice and an insult to intelligence.” It’s as much a “loophole” as my entitlement, as a U.S. citizen of South Asian descent, to get one of those kitschy new U.S. passports that Mike wrote about on Tuesday.
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Let’s leave to one side debate over the Visa Waiver Program in general, which provides significant economic and fiscal benefits to the United States but also has raised security concerns. What should we make of the specific proposal to discriminate against Pakistani UK citizens? Despite the Chief Justice’s statement in a 2006 voting rights case that “it is a sordid business, this divvying of us up by race,” the Supreme Court might well uphold an official policy discriminating against Pakistani, South Asian, or Muslim UK citizens. Just as it relied upon and reaffirmed the Civil Rights Cases when striking down the Violence Against Women Act, the Court could rely upon and reaffirm the cases from the same era upholding Chinese exclusion, which never have been overruled; while more recent Supreme Court cases require some limited constitutional scrutiny over substantive admissions criteria, they probably don’t require strict scrutiny.
But it also doesn’t strike me as a “slam dunk” case, given the proposal’s rather questionable rationality. Indeed, the very fact that this discussion is taking place at all might be an illustration of Bernard Harcourt’s suggestion (which he also makes in his recent book) that profiling in defensive counterterrorism measures might, counterproductively, lead to substitution in the form of either recruitment from non-profiled groups or use of methods that may be more immune to such profiling. The first generation of post-2001 profiling-based initiatives by the United States largely targeted natives and citizens of predominantly Muslim countries. The possible shift now to a second generation of profiling-based initiatives, this time instead targeting citizens (presumably including both naturalized and native-born) of largely non-Muslim countries in the West, might be a response to precisely the sort of substitution that Harcourt discusses. Why shouldn’t we expect further substitution in response to this proposal as well? After all, UK citizens suspected of terrorism in recent years have not exclusively been Pakistani, but also have included individuals of Jamaican and East African descent. And there are 26 other countries in the Visa Waiver Program.
According to GAO, the biggest potential vulnerability in the Visa Waiver Program is the misuse of lost and stolen passports by individuals seeking to conceal their true identities or nationalities. Some visa waiver countries may not be monitoring and reporting lost or stolen passports as effectively as they should, and U.S. border officials may lack sufficient resources and capacity to detect the misuse of passports from visa waiver countries. But assuming these are the principal concerns here, it seems odd and misguided to respond by requiring Pakistani UK citizens alone to apply for visas. After all, holders of false, manipulated, or fraudulently-obtained British passports probably could manipulate their identities rather easily to indicate that they are of, say, Indian or Lebanese descent. Even if the profile were broadened to include all Muslim UK citizens, a determined would-be terrorist could similarly conceal their religious identity.
So a wag of the finger to Chertoff as well. Like most of the post-2001 initiatives that have adopted blanket, categorical rules that profile and discriminate against individuals perceived to be Muslim, this proposal strikes me as symbolic “security” on the cheap, a sign that perhaps the government does not understand all that well the phenomenon it seeks to prevent. In the short term, the proposal seems unlikely to provide more than a false sense of security and could visit real hardships upon many UK citizens of Pakistani descent, given how much red tape many Muslims face in the visa application process nowadays. (See here for a particularly cringeworthy story.) In the longer term, the proposal represents yet another discriminatory initiative with great potential to fuel the alienation and anger of Muslims throughout the world, by once again forcing them to endure the indignity of imputed responsibility for wrongdoing with which they have absolutely nothing to do.