Perhaps I was naive to have expected more thoughtful analysis from conservative writer David Frum on last Friday's Real Time With Bill Maher. Maybe what lowered my guard was Frum's refreshing candor in criticizing as a failed strategy the Republicans' "just say no" approach to the health care act, and suggesting that bipartisan engagement might have produced legislation more to the GOP's liking. Maybe my manure detector was thrown off by his even more passionate critique of Republican nihilism, Rush Limbaugh and Fox News after his firing as resident scholar by the American Enterprise Institute.
Still, for a Canadian émigré who transferred from the University of Toronto to pursue a bachelors and masters at Yale and then graduate from Harvard Law School, this former foreign student and seeming intellectual truly disappointed me with the disinformation he unloaded in his exchange with Bill Maher about the "so permissive" U.S. immigration system:
If you're concerned about them [Muslim terrorists like confessed Times Square bomber, Faisal Shahzad] being over here, this also raises the question: So why are they here? Why is America's student visa program so permissive? Why is it so easy to be naturalized? This is a failure of America's immigration and naturalization system.
There's already millions of Muslims here. The problem is in their head. Let's talk about the psychology of this guy. He was in a [lousy] marriage, he had a dead-end job.
Of course he was in a [lousy] marriage, he got married to get his green card.
His house was under water. If that's not an American, I don't know what is.
. . . I don't know how you talk about terrorism on these shores without saying that the immigration system needs to be more restrictive. Somebody cannot be excluded, it is illegal to exclude someone from this country -- even for a visa, never mind citizenship, even if you have evidence that the person has all kinds of radical views. The law says unless there is an overt act, unless the person belongs to a proscribed group, or has committed a crime, that the visa officer in the foreign embassy [presumably he means the American consular officer at a U.S. consulate or embassy abroad] cannot exclude him from the country.
Let's talk about this on a more psychological level. That's all well and good, but you can't make laws about what's going on inside someone's mind.
Frum apparently doesn't need a law "about what's going on inside someone's mind" because he can read minds. Many terrible accusations can be made about Faisal Shahzad, but the charge of marriage-fraud is contradicted by the evidence: two children born of the marriage to Huma Anif Mian; a mortgage the couple held together; and a marriage that apparently remains intact after six years.
Of more importance, however, are Frum's legally flawed accusations about U.S. immigration laws. Frum neglects to mention or plainly misstates several restrictive elements of the Immigration and Nationality Act, a McCarthy-era statute, made even more restrictive by successive amendments over several years and by regulations interpreting the statute. Here is where Frum is dead wrong:
- The student visa system. Far from being permissive, student visa holders in F-1, M-1 and J-1 visa status are monitored more closely than all other nonimmigrants to the United States. If a foreign student or exchange visitor fails to report to campus, fails to take a full course load, receives failing grades or otherwise fails to maintain status, regulations of U.S. Immigration and Customs Enforcement require school officials to report the immigration violation in real time through the SEVIS (the Student Exchange Visitor Information System) database or else lose the highly lucrative authority to admit foreign students.
- The naturalization process. Becoming a naturalized U.S. citizen is not easy. The wait to apply is from three to five years in most cases, the oral examination has been made harder, trips abroad are scrutinized, security and criminal-law screenings are conducted, and naturalization examiners can reject the application if the individual lacks the nebulous "eye of the beholder" quality of "good moral character."
- The power of visa officers. Consular officers are authorized to exclude individuals from this country on multiple grounds. Their factual determinations (most of the grounds for visa refusal turn on questions of fact rather than of law) cannot be overturned by the State Department or the courts under the principle of consular nonreviewability. An overt prohibited act, a criminal conviction, or membership in a proscribed group are not the only grounds for exclusion. The consular officer and the inspecting officer at the port of entry each have independent power to exclude the applicant if either has "reasonable ground to believe, [that the person] seeks to enter the United States to engage solely, principally, or incidentally in . . . any . . . illegal activity." [8 U.S. Code § 1182(a)(3)(A)(ii).] Furthermore, the law puts the burden on the individual to prove eligibility for a visa, not by the usual civil standard of a preponderance of the evidence, but rather to "the satisfaction of" the officer, and neither the consul nor the border inspector are required to reveal the underlying basis for the belief that the person will, even if only incidentally, engage in any illegal activity in the U.S. [8 U.S. Code § 1182(b)(3).] As an even stronger safeguard, even if a consular officer decides to grant the visa, the Homeland Security Department can override the decision and deny the visa. Furthermore, even if a visa is somehow issued, it can be revoked by the consular officer or the State Department under 8 U.S. Code § 1201(i) before or after the visaholder enters the U.S., thereby making those admitted instantly deportable under 8 U.S. Code § 1227(a)(1)(B).
Frum never said what he would do to make the immigration system "more restrictive." Perhaps he would require that all visa applicants be administered Sodium Pentothol and attached to a polygraph during multiple visa interviews. Or perhaps he would merely shut down the visa system and refuse entry to all foreign citizens, including Canadians (who, by the way, in most instances, are visa-exempt). Maher is right that the government cannot pass a law "about what's going on inside someone's mind." The U.S. should also not engage in such "shoot-oneself-in-the-foot" behavior by making it ridiculously tougher than the law already is on foreign students seeking to enter the United States.
What the media can do is to challenge Frum and others of his ilk when they make broad and unfounded assertions about the immigration laws. They should check with media-savvy immigration lawyers, like Victor Nieblas, a candidate for national Secretary of the American Immigration Lawyers Association whom I heartily endorse.
What the Administration and Congress can do to protect us is to video-record all applicants as they are interviewed by consular officers and provide sufficient resources so that the interviews last longer and are more fair, probing and thoughtful than allowed now under the current process, with each interview lasting only about five minutes. Come to think of it, a longer and more thoughtful Q and A might just have an additional benefit. Even applicants refused a visa might leave the experience feeling better that, at least, they were fairly considered as an individual by a not-so-aesthetically-challenged officer under America's clearly restrictive immigration system.