RE: OMB Emergency Review of Supplemental Questions for Visa Applicants; Federal Register Document 2017-08975
Dear Sir or Madam:
Asian Americans Advancing Justice submits this comment in response to the above-referenced notice by the United States Department of State (“DOS” or “Department”), which requests Office of Management and Budget (“OMB”) emergency review and approval for a massive expansion of information collection from certain visa applicants. For the below-detailed reasons, we strongly urge the OMB to deny both the request for emergency review and overall approval.
On May 04, 2017, the DOS published a notice in the Federal Register (“Notice” or “Proposal”) announcing its intention to obtain emergency review and approval of a massive new data collection effort. Specifically, the Department seeks to obtain a vast amount of invasive and irrelevant information from an unspecified “subset of visa applicants worldwide, in order to more rigorously evaluate applicants for terrorism or other national security-related visa ineligibilities.”
The information the Department wishes to collect includes both new categories of information and an expansion of existing categories. New information includes “social media identifiers and associated platforms;” the names and dates of birth of siblings; and (for some affected individuals) the names and dates of birth for all children. Expanded existing categories include travel history during the last fifteen years, including the source of funding for the travel, and address history during the last fifteen years. As detailed below, this proposal is ill-conceived, wasteful, and damaging to U.S. interests.
II. The Request for Emergency Review Should be Denied
The Department’s request for emergency OMB review is inappropriate and unjustified, and should therefore be denied. While emergency review may be appropriate for minor expansions of existing categories of collected information—and then only with compelling justification for bypassing the usual notice and comment procedures—this is clearly not such an instance. Not only does the Department seek sweeping new troves of personal information from applicants, it also seeks to vastly expand some existing categories. Furthermore, as explained below, the lasting civil liberties implications of such an information collection scheme—even a “temporary” 180 day one—weigh strongly against rushing to approve the proposal without adequate time for robust public comment and due consideration, which cannot be accomplished in this two week period.
Finally, the Department has not met the standard for initiating Emergency Processing laid out in 5 C.F.R. § 1320.13. Indeed, by its own admission, the Department states that this information collection merely implements a March 06, 2017 Memorandum by President Trump that inter alia ordered the Secretary of State to enhance “vetting protocols and procedures” for visas. Reliance on this Memorandum—which was issued on the same day as the Second Muslim Ban Executive Order, and refers to the “vetting protocols and procedures” as a means to accomplish the stated goal of the Ban—does not justify the extraordinary measure of emergency OMB review, particularly given the sweeping nature of the Proposal.
Our organization is not aware of any other publicly-available, written justification provided by the Department in support of its request for Emergency Processing. If the Department has in fact issued any further justification for its request, we request that justification be made public and respectfully caution the OMB against relying on any generic or bare assertions of concerns for terrorism by the Department in evaluating whether or not to grant emergency review. As was well reported in the media, President Trump repeatedly excoriated the federal judiciary for blocking his first Muslim Ban Executive Order, claiming that the judges were putting the country at risk for a terrorist attack. However, President Trump readily delayed the issuance of the second Muslim Ban Executive Order for press and popularity considerations, which thoroughly belies the assertion that the Muslim Ban Executive Order needed to be implemented immediately to prevent harm to the U.S. Given that the current proposal by the Department and the Muslim Ban Executive Order are meant to operate hand in hand, there is no plausible reason for the immediate and haphazard implementation of a proposal as sweeping as that proffered here. Therefore, we respectfully request that the OMB reject the Department’s request for emergency review, and order the Department to instead go through normal channels for approval.
III. The Proposal Will Lead to an Increase in Racial Profiling
In addition to the above procedural consideration, there are a number of substantive concerns with the Proposal put forth by the Department. Therefore, even if the OMB does decide to grant emergency review, we strongly urge the OMB to deny the Proposal. The first, and perhaps most pressing, concern is that the blatant religious animus expressed by the senior leadership of the Trump Administration; the broad and essentially unfettered discretion suggested by this Proposal; and the near-total lack of protection in the Proposal will lead to an increase in racial and religious profiling in the visa issuance process.
A.The Administration’s Actions are Motivated by Bias against Muslims
Both sides of the aisle can agree on one point – President Trump has expressed a clear hostility towards Muslims. A full detailing of his remarks demonstrating this animus is beyond the scope of this Comment, but a few examples will be sufficient to demonstrate this point. In 2015, when asked about his proposal to ban Muslims from the U.S., Mr. Trump was asked what the process would look like if a Muslim tried to enter the country. His response was, “they would say, ‘are you Muslim?’” The interviewer then asked, “and if they say yes, they would not be allowed into the country?,” to which Mr. Trump succinctly replied, “[t]hat’s correct.” In 2016, Mr. Trump famously and tellingly stated, “I think Islam hates us. There is something — there is something there that is a tremendous hatred there.” Later that year, in response to a query about his position on a Muslim Ban, Mr. Trump stated “The Muslim ban is something that in some form has morphed into a[n] extreme vetting from certain areas of the world.” When asked specifically whether “the Muslim ban still stands,” Mr. Trump responded in the affirmative, stating, “[i]t’s called extreme vetting.”
This last remark (and the countless similar remarks President Trump has made since then) is especially relevant to this current discussion. It is clear that this animus has prompted President Trump to make two attempts to block Muslims from entering the country, and that he is likewise seeking to prevent Muslims from entering the U.S. by using the precise sort of “extreme vetting” that the DOS is currently seeking authorization for. Even in the best of times, unfettered discretion and a lack of protection lead to increases in racial profiling. However, in times such as these where the President and many top officials in the federal government have expressed clear hostility towards a minority group, proposals such as this are especially prone to lead to unconstitutional and immoral treatment.
B.The Proposal Would Give Agents Essentially Unfettered Discretion
The Proposal put forth by the DOS does not give the agents who will implement it any real direction regarding whom to focus this additional extreme vetting on; rather, the Notice simply states that the procedure will apply to a “subset of visa applicants worldwide, in order to more rigorously evaluate applicants for terrorism or other national security-related visa ineligibilities,” and that this review will be triggered if the “circumstances of a visa applicant, a review of a visa application, or responses in a visa interview indicate a need for greater scrutiny.”
This sparse explanation leaves a litany of important questions unanswered. First, what factors trigger increased review? What “circumstances” should trigger review? To what extent will agents review applicants’ online presence? What procedure, if any, will be put in place to investigate social media and resolve questions about content? How will agents ensure unconscious or conscious bias do not dictate whether an applicant obtains a visa?
In short, this proposal gives agents vast authority to delve into applicants’ personal, social, and political lives, and grants this power without any guidance on how to implement it.
C.The Proposal Fails to Protect Against Such Harms
As discussed above, this Proposal seeks to give Department agents new ability to dive deeply into the lives of applicants, without providing guidance on how to do so, leaving agents with massive new power and great discretion. This is further exasperated by a near-total lack of protections against the impermissible use of information.
The Department’s bare assertion that “collection of social media platforms and identifiers will not be used to deny visas based on applicants’ race, religion, ethnicity, national origin, political views, gender, or sexual orientation” is utterly unconvincing. Without further guidance or specified protections and procedures, this is nothing more than an aspirational statement. If protecting against racial, religious, and other bias was as simple as making a sweeping declaration, we would have no need for civil rights legislation and other protections against racial profiling. The real question to ask here is “how?” How specifically will the DOS ensure that agents will not be improperly motivated by race, religion, political viewpoints, and other impermissible characteristics? What process of review exists to ensure that, for example, a Muslim journalist who has written pieces criticizing President Trump’s policies is not denied a visa for that reason? How can we ensure that innocent social media posts are not misconstrued due to a misunderstanding of the context, culture, or conversation in which the comment took place?
As detailed further below, social media presence is a poor metric for determining security risks for precisely this reason; it is highly idiosyncratic, and is of course context-, conversation-, language-, and culture-specific. Truly understanding the nature of a social media message can require a large investment of time and resources for little to no gain. To give just one example, two British tourists were recently denied entry into the U.S. for making a comment on Twitter about “destroy[ing] America” during their trip. As anyone who has ever lived in Britain can attest, “destroy” is a commonly-used slang term for “partying” or “having a good time.” Thus, agents misconstrued an innocent post, and now the affected individuals may have a permanent file indicating that they have previously made threats against the U.S. – all based on a misunderstood tweet.
It is worth reiterating that there is no opportunity for individuals to challenge, explain, or review information about their online presence. This puts applicants in an untenable position of choosing between robust online expression or seeing their loved ones in the U.S. Furthermore, this vast discretion will likely lead to widely disparate results for similar applications across the globe, and indeed, within single Embassies; this of course violates the principle that the immigration laws of the country should be enforced uniformly.
Given the opaque nature of the visa issuance process in general, such protections are more important than ever. Indeed, the Foreign Affairs Manual states that applicants whose visas are denied for security reasons (which would of course include most, if not all, of those whose visas are denied pursuant to this Proposal) will not even get an explanation of the denial. If an applicant’s visa is denied because of security concerns stemming from a misunderstood social media post, how will they correct that in the DOS system? This last point is particularly salient for those who later wish to immigrate to the U.S., as they will have to contend with a secret and incorrect DOS file that they can never obtain access to or explain. In short, this administration’s undeniable enmity towards Muslims, coupled with broad discretion to deny visas and a profound lack of guidance or protections, is an unequivocal recipe for unlawful racial and religious profiling.
IX.The Information Sought to Be Collected is Invasive and Irrelevant
A.The Proposal Will Chill the Free Expression of Applicants and Those in the U.S. Who Associate with Them
The Proposal to force applicants to turn over information about their “[s]ocial media platforms and identifiers, also known as handles, used during the last five years” is particularly alarming. Indeed, scores of civil rights organizations, including our own, expressed strong concerns about a recent proposal by U.S. Customs and Border Protection to collect this sort of social media information on a “voluntary” basis from Visa Waiver countries and, more recently, long-term visitors from China. This Proposal is even more alarming because it is mandatory rather than “voluntary;” is done earlier in the visa application process, making it very hard for applicants to know if they have been denied a visa for reasons related to their social media presence; and is done in a context where agents have near unfettered discretion regarding whom to demand this information of.
Today, much of our lives are online. The internet has facilitated the global community’s ability to connect with family and friends, learn more about the world, develop their political and world views, fight for democracy and human rights, and practice their faiths. This is a desirable outcome, and is in line with long-held U.S. interests in maintaining the internet as a collaborative global tool. Government scrutiny of online presence, such as via this Proposal, will inevitably lead to a chilling of online expression. Our consulates do not and hopefully would not ask for a list of a scholar applicants publications and read them before determining whether to grant a visa because that would be anathema to our values of free speech, expression and viewpoints. Social media should be treated no differently. Many non-U.S. persons have close family in the U.S. that they wish to visit; if an online post can be misconstrued by an agent with unfettered discretion to deny the applicant’s visa, that applicant has a very strong incentive to refrain from posting or engaging online.
Nonverbal online communications also pose serious challenges, and are particularly difficult to construe. For example, if someone “likes” and retweets an article talking about an attack abroad, are they expressing gratitude that the author of the piece is covering the issue, expressing that the topic is timely and important for the public to know about, or expressing support for the attack? The first two are much more likely, but what if a Department agent mistakenly assumes the third? Furthermore, many sites now allow users to utilize a range of emoticons to comment on pieces; how will agents evaluate those?
Human rights defenders who live in repressive regimes are particularly vulnerable if such data collection is allowed. Such individuals rely on anonymous online identities to further their activism in a manner that provides some protection from government reprisals; destroying that anonymity by forcing them to link their online presence to their official identities while they are abroad in the country they fear reprisals from is a cruel condition to set for obtaining a visa.
U.S. persons would also be affected by this. Social media does not just reveal the intimate details of the poster’s views and life, it also reveals private information about people who that person connects with. Thus, collecting this information implicates the privacy and First Amendment rights of all U.S. persons who are connected—however tangentially—with the applicant on social media.
In short, reviewing five years of social media posts is a wasteful and dangerous exercise, and the OMB should not allow the Department to collect this sort of information, particularly when, as here, there is no guidance given for how such posts and nuances should be interpreted.
B.Fifteen Years of Travel History and Travel Funding
Currently, the Department collects five years’ worth of travel history, including the source of funding for that travel, from visa applicants; this current proposal seeks to treble that amount to fifteen years. In addition, the Proposal states that “applicants may be requested to provide details of their international or domestic travel, if it appears to the consular officer that the applicant has been in an area while the area was under the operational control of a terrorist organization.” This is an invasive and unreasonable burden to put on applicants. First, the proposal is incredibly broad, as it includes international and domestic travel. Furthermore, “domestic travel” is not clarified. For example, would a trip to a clothing store in a city 5 miles away count as domestic travel? Or is the threshold 10 miles, or 20, or 100? This is further exacerbated by the fact that the source of the travel must be disclosed. Imagine a college student trying to remember every family member who chipped in for a birthday trip, or trying to remember an old college roommate or friend who contributed a few dollars’ worth of gas money for a short road trip. This amount of information is unnecessary and untenable, and for many individuals, this will be an insurmountable obstacle, especially if they are living in a conflict zone or need to frequently move for other reasons. Indeed, although many individuals at our organization are U.S. born attorneys, even we would be utterly incapable of itemizing fifteen years’ worth of travel and travel funding. Individuals living in less stable areas or who are otherwise unable to compile this information will likely be unfairly denied visas due to circumstances utterly beyond their control.
Further, the Proposal does not address whether a simple lack of memory will be a sufficient explanation for an applicant’s failure to provide such information. Instead, the Proposal merely states that an applicant’s failure to provide such information “will not necessarily result in a visa denial,” but only if the consular officer determines that the applicant provided a “credible explanation.” Nowhere in that language does it clarify whether lack of memory would be sufficient, and agents are not given any guidance whatsoever as to what constitutes a “credible explanation.” Thus, this sought information is unreasonable, and no explanation has been provided as to why the DOS is proposing such a massive increase in travel information collected.
C.Fifteen Years of Employment History
Requiring applicants to collect fifteen years’ worth of employment history is similarly unreasonable. Many people around the world—including in the U.S.—do not keep details of this history. Furthermore, the businesses and individuals applicants have worked for may have since moved or gone out of business in the intervening time, making this information gathering effort even more futile. Finally, as other commentators on this proposal have mentioned, even high level U.S. government security clearances only go back ten years, making this requirement burdensome to the point of absurdity.
Similarly, no explanation has been given by the Department for its reasons for suddenly seeking the names and dates of birth for all siblings. This request also displays a profound lack of awareness for family structures and realities outside of the U.S. First, “sibling” is not specified. While that would clearly encompass a child born of the applicant’s biological mother and father, it is unclear whether “step-siblings” or informally-adopted children qualify. In addition, in many parts of the world, dates of birth hold much less significance than they do in the U.S., and are consequently not recorded with specificity. Thus, requiring applicants to list the dates of birth of their “siblings,” especially if they come from families that are large by U.S. standards, may present a significant challenge. Yet again, the Department has not offered any justification or measurable benefit to security that would result from such information collection.
E.Even a “Temporary” Vetting Period Will Create Lasting Harm
The Notice issued by the Department states that, if granted, this approval would “only” be valid for 180 days. This ignores the devastating impact that this sort of massive and ill thought-out plan can wreak on individuals and families during that period. Moreover, no information is given for how long such data will be retained by the Department, meaning that this massive trove of personal, highly contextual, and potentially inaccurate data will likely be retained for a great length of time. Even if this policy is later struck down, the damaging and potentially inaccurate information collected during this 180 day period will remain in place, likely thwarting any future ability for affected applicants to come to the U.S. for family, work, study, or relocation.
This poses yet another threat – that applicants’ inadvertent mistakes will later be used against them if they attempt to adjust their status. Given the massive amount of information applicants will be asked to provide, it is very likely that applicants will make immaterial errors or omissions, such as neglecting to provide an old Myspace user name that they only had for a few months or a short domestic trip that happened over a decade ago. The Department of Justice under Donald Trump has recently taken the alarming position in Maslenjak v. U.S. that the Government may revoke the citizenship of naturalized U.S. citizens who make such trivial misstatements in their naturalization proceedings. Indeed, during oral arguments, many Justices expressed shock that the government believes U.S. immigration law should be “interpreted in a way that would throw into doubt the citizenship of vast percentages of all naturalized citizens.” This stance means that there is a very real risk that omissions or immaterial misstatements in this information collection process could later be used against applicants decades later. In short, even a “temporary” collection will result in permanent harm.
V.The Proposal Harms—Not Benefits—U.S. Security Interests
To add insult to all of the aforementioned injury, the Department has failed to demonstrate any measurable benefit to national security from all of this unnecessary scrutiny. There is absolutely no reason to believe that using scarce Department resources in this manner—resources which have recently been cut by 28% no less—will further our security at all. Indeed, quite the opposite is true. There is every reason to believe that this proposal will prove detrimental to our national security.
First, the fundamental premise of this plan—that one can ascertain national security risks from publicly-available social media posts—is a flawed one. There is no reason to think that those who wish to do harm to our country will post about their plans to do so ahead of time on social media in a manner that is easily traceable to them. Thus, the proposal will burden innocent travelers while doing nothing to advance our national security. Second, the Department seems to be operating under the false paradigm that ‘more information means more security.’ This is of course entirely and demonstrably false. Vast amounts of irrelevant data does not lead to more security; smart information collection does. The Department has finite resources with which to accomplish its mission. As detailed above, sifting through this behemoth amount of data will take untold hours of agents’ time, and there is no evidence that the information will lead to more security. In fact, by wasting agents’ time with useless forays into Twitter and other social media, agents have less time and resources to follow up on concrete leads that may indicate an applicant’s inadmissibility. Finally, this information will likely end up in a database accessible to huge numbers of other federal, state, local, and tribal governments. This makes collecting irrelevant, false, or misleading information damaging to much more than just the Department of State; if other government entities likewise rely on such information, it can only be detrimental to our country’s security. Given that Muslims are likely to be targeted by these new requirements and their social media information is likely to be shared with intelligence agencies, the likely result will be that Muslims will be disproportionately monitored and surveilled without any indication that they have violated the law.
In conclusion, for the foregoing reasons, our organization strongly recommends that the OMB deny the Department of State’s request for emergency review, as well as its request for approval of this troubling policy. Please do not hesitate to contact the following individuals with questions about this Comment:
Staff Attorney and Program Manager,
National Security & Civil Rights Program
Advancing Justice – Asian Law Caucus
Staff Attorney and Program Manager,
National Security & Civil Rights Program
Advancing Justice – Asian Law Caucus
On behalf of our organization and the communities we serve, thank you in advance for your time and careful consideration of this submission.
Asian Americans Advancing Justice