Designed to be racist: The Supreme Court will consider the dark side of our immigrant visa system

The Supreme Court will soon make a momentous decision that you have probably heard nothing about, but which could have enormous implications for America’s immigration system. The case, State Department v. Muñoz, involves Luis Asencio, the husband of U.S. citizen Sandra Muñoz. He is unable to re-enter the country and be with his wife because the U.S. Embassy in El Salvador denied his visa.

The decision, which came down at first without explanation, was later shown in litigation to be based at least partly on his tattoos. Both Asencio and a court-approved gang expert in the case stated that none of his tattoos — which include the Virgin of Guadalupe, playing cards and theater masks — are gang-related, and he has no criminal history or record of gang affiliation. 

Although we tend to think of immigration in the context of the border, millions of foreigners interview at U.S. embassies and consulates every year for entry into the U.S. If a visa officer denies you, as in this case, that denial is non-appealable and non-reviewable. Current law allows individuals such as Asencio to be denied visas without ever knowing why, despite his marriage to a U.S. citizen. At the very least, due process for U.S. citizens is foundational. The denial of rights, such as the right to be with your spouse, runs counter to the U.S. Constitution.

Such discretionary and subjective power in the hands of so few at the State Department does not occur by chance. The immigration system, rooted in 1920s discriminatory animus, was designed this way.

Increasing public and political anxiety over rapid social and demographic changes led Congress to pass the 1924 Immigration and Nationality Act. The Act set quotas on the numbers of immigrants, dramatically reducing flows by some 80 percent within a year of passage.

According to the State Department, the act aimed to “preserve the ideal of U.S. homogeneity.” It also established a “consular control system” that allowed entry to those who first obtained a visa from a U.S. consulate abroad. But why the consular and not the Immigrant Bureau? Because of a man named Wilbur Carr.

In 1920, Carr, the head of Consular Affairs, was only in charge of American citizen affairs abroad, but he had U.S. diplomats write a report on their observations of foreigners. The resulting State Department document argued that immigrants from Sicily were “inimical to the best interests of the United States” because “they are small in stature and of a low order of intelligence.”

From Rotterdam, the consular officer found that Polish and Russian Jews were “filthy, un-American, and often dangerous in their habits.” The U.S. consul in Poland found the people there to be “filthy and ignorant and the majority are verminous” while “all” the prospective immigrants encountered there are “decidedly inferior . . . physically mentally, and morally.” Of the Turkish people, the consul typified them as “intellectually incapable of being dangerous.” Richard C. Beer, a career officer serving in Budapest, complained that Hungarians, Gypsies, and Jews were all barbarians and gave his office an odor that “no zoo in the world can equal.”

On and on, the report challenged individuals’ intellectual and physical characteristics worldwide.

Newspapers all over the country covered the explosive report. Senators and congressmen cited it as grounds for sharply curtailing migration. A prominent Jewish rights advocate, Louis Marshall, blamed consular reports “reeking with hatred, prejudice, and contempt against Jews” for fostering the environment that led to the passage of the Immigration and Nationality Act of 1924.

As a reward for the damning State Department report that galvanized public opinion against immigrants, Carr’s close friend, Rep. Albert Johnson (R-Wash.), drafted the bill to neutralize the Immigration Bureau by giving the U.S. State Department the power to administer the granting of visas.

After all, who better to judge individuals abroad than the predominantly white, Protestant U.S. diplomats overseas, who, most notoriously, directed consular officers to bar Jewish refugees despite the rise of Hitler?

Thus, even though today’s officers use discretionary power with more caution, they still represent a predominantly white institution casting unquestioned and unquestionable judgment on mainly Black and brown visa applicants — just as Carr intended a hundred years ago. The U.S. Diplomatic Corps is still nearly 80 percent non-Hispanic white, while the general U.S. population is only 61.6 percent. Consular officers have denial rates upwards of 50 percent for students from African countries.  

While the issue with Muñoz is now with the Supreme Court, the honest answer is with the agency and Congress. Our visa-granting process is rooted in the politics — racial and otherwise — of the distant past; the future of legal immigration must better reflect our present.

In an economic climate from which we are still missing 2.2 million people from the workforce compared to February 2020, every industry in nearly every state is being affected, according to a report from the U.S. Chamber of Commerce earlier this year. To help America better compete globally, we must look at the overdue reform of our visa interview process. 

Chris Richardson is an immigration attorney and former diplomat.