Two Sides of Immigration Exceptionalism: Of WikiLeakers and DREAMers
I had intended to write again about the DREAM Act, given that it will be up for a vote during the lame duck Congress, probably within the week. Another DREAM post, to follow my many similar postings, would be more time-sensitive than ever in view of an analysis by Lamar Smith (incoming head of the House Judiciary Committee). In a recent Washington Post op-ed, Rep. Smith minimizes the impact of the Hispanic vote; thus, his track record as an immigration opponent makes the prospect of DREAM's enactment in the next Congress chimerical, if not comical.
The brave DREAMers in this video made me want to blog on the kind of American Exceptionalism that does not come off as arrogance, the type that breeds courage in the face of impossible odds, the kind that causes innocent out-of-status youths, swept up by the mistakes of their parents and the hard-heartedness and fears of many Americans, to demand their civil rights by protesting in front of an ICE office (in Arizona, no less)! This "SLAM poem" by a DREAMer tells the story of Immigration Exceptionalism in yet another, also compelling, way.
I then planned to expand my riff on Immigration Exceptionalism by asking why French scientists and economists prefer the United States over their native land. I'd also blog about two recent items from the Wall St. Journal -- one calling DREAM "A Worthy Immigration Bill," the other reporting on a VC-funded CEO from Slovenia whom USCIS denied an extension of his work visa status and who now must run his American business from outside the U.S. -- and contrast these to the 10-pointed disinformation of Sen. Jeff Session who opposes DREAM with flat-out lies and extremist views.
But then erupted Cablegate, the Wikileaks release (in stages over several days) of years and years of U.S. State Department cables, and another form of Immigration Exceptionalism -- State's secrecy and arrogance in visa matters-- came back to me. This Congressionally-authorized dark side of the immigration process has bothered me for all of the 30+ years I've practiced immigration law. A Tweet of Matt Yglesias, retweeted by the Washington Post's Ezra Klein, epitomized the problem:
Routinized overclassification is bound to create a brittle system vulnerable to mass leaking.
The "[r]outinized overclassification" system that turns immigration-related records held by State into government secrets is authorized by Immigration and Nationality Act § 222(f), which provides:
(f) The records of the Department of State and of diplomatic and consular offices of the United States pertaining to the issuance or refusal of visas or permits to enter the United States shall be considered confidential and shall be used only for the formulation, amendment, administration, or enforcement of the immigration, nationality, and other laws of the United States, 1a/ except that--
(1) in the discretion of the Secretary of State certified copies of such records may be made available to a court which certifies that the information contained in such records is needed by the court in the interest of the ends of justice in a case pending before the court.
(2) the Secretary of State, in the Secretary's discretion and on the basis of reciprocity, may provide to a foreign government information in the Department of State's computerized visa lookout database and, when necessary and appropriate, other records covered by this section related to information in the database--
(A) with regard to individual aliens, at any time on a case-by-case basis for the purpose of preventing, investigating, or punishing acts that would constitute a crime in the United States, including, but not limited to, terrorism or trafficking in controlled substances, persons, or illicit weapons; or
(B) with regard to any or all aliens in the database, pursuant to such conditions as the Secretary of State shall establish in an agreement with the foreign government in which that government agrees to use such information and records for the purposes described in subparagraph (A) or to deny visas to persons who would be inadmissible to the United States.
To many a visa applicant's shock and dismay, State has routinely used § 222(f) as a basis to deny a copy of one's own visa applications to the applicant and his or her legal counsel. Coupled with other provisions that give U.S. consular officers arbitrary (and too-often abused) powers over the fate of visa applicants, § 222(f) has also permitted the immigration workings of State to be shrouded in darkness -- a darkness that is allowed to hide ethnic prejudice. Witness one 1979 cable from the U.S. Embassy in Tehran discussing the "cultural and psychological qualities" of Iranians:
Perhaps the single dominant aspect of the Persian psyche is an overriding egoism. Its antecedents lie in the long Iranian history of instability and insecurity which put a premium on self-preservation. The practical effect of it is an almost total Persian preoccupation with self and leaves little room for understanding points of view other than one's own. Thus, for example, it is incomprehensible to an Iranian that U.S. immigration law may prohibit issuing him a tourist visa when he has determined that he wants to live in California. [Emphasis supplied.]
In America, we'd say this is an example of the pot calling the kettle black. The Persians would phrase it differently but with the same sentiment: "The garlic said to the onion: 'you stink!'" Malcolm X might say, were he alive today, that the "chickens [have come] home to roost."
The point here is not that WikiLeaks should be lauded for revealing State secrets. The point instead is this: State's form of Immigration Exceptionalism permits "routinized overclassification" of secrets and of foreign citizens. It thereby helps create a "brittle [and vulnerable] system" which denies America the benefits of the other form of Immigration Exceptionalism, the one that allows home-grown foreign youth, French scientists, Slovenian entrepreneurs and innumerable other talented people from abroad to reinvigorate, replenish and economically strengthen our nation through their striving, risk-taking and innovation.