Media
Event Summary
The Center for Immigration Studies hosted a panel to discuss a new report, Foggy Bottom and the Border: Harnessing the State Department to lead U.S. a foreign policy that fights illegal immigration and promotes border security, which includes key policy recommendations for the next administration.
The report highlights the need for the Department of State, the lead U.S. foreign agency, to play a key role in tackling the current migration crisis. The panel discussion explored how a coordinated approach within the next administration could empower State and other foreign affairs agencies to combat illegal immigration and help alleviate the enforcement burden. From visa issuance to integrating State Department activities with DHS, DOJ and other federal and state authorities to international diplomacy, the report underscores the potential of a “whole-of-government” effort to address border security effectively.
Participants
Christopher Landau: Former U.S. Ambassador to Mexico (2019-2021).
Phillip Linderman: Retired senior Foreign Service officer, State Department, Board Member, Center for Immigration Studies.
Jessica Vaughan: Former consular officer with the State Department, Director of Policy Studies, Center for Immigration Studies.
Moderator: Mark Krikorian, Executive Director, Center for Immigration Studies.
Date and Location
October 29, 2024
Online
MARK KRIKORIAN: Hello. My name is Mark Krikorian. I’m executive director of the Center for Immigration Studies.
And today we’re discussing an aspect of the immigration issue that doesn’t get a lot of attention from politicians or the media or even the public, and that is the State Department’s role in immigration control and border control. It’s actually enormous. You know, obviously, the Department of Homeland Security is the lead agency on most immigration issues, but the State Department is central to any effective policy to control immigration, to control the border, enforce immigration laws.
And we have published a new paper outlining a lot of the things that the State Department could do to actually lend its support to a broader effort to control the border and enforce immigration laws. And today we have the author of that paper and two respondents to discuss this issue. The paper is on our website at CIS.org, and it’s authored by Phillip Linderman, who is a 30-year veteran of the – retired now – of the State Department, served in a variety of posts in Latin America and Europe, and dealt with many issues, including immigration and border security, terrorist travel, those kind of issues.
And to respond to it, we have two people who are very knowledgeable on this issue. First, Christopher Landau is former ambassador to Mexico. And obviously, our most populous neighbor, the issues that we have with them include many things – trade, drugs, et cetera – but immigration and border control are central. And he has a lot of experience – on-the-ground experience in dealing with those issues. And last but not least, Jessica Vaughan, the Center’s own director of policy studies and a former Foreign Service officer herself, who has written on visa-related issues quite extensively.
So if you have – if you’re watching this live and have questions, you can email them to M-R-T – that’s our communications director’s email address – [email protected]. And after our three speakers are finished with their presentations, we’ll be happy to take questions.
So, Phil, if you could start it off by describing, you know, what it is – what’s the point of the paper and what are some of the most important recommendations you made in it.
PHILLIP LINDERMAN: Thank you, Mark. It is a pleasure to be here, as always, with CIS and with Ambassador Landau and Jessica.
I appreciate the fact that the Center wanted to tackle this topic, which as you rightly said is largely ignored or downplayed when we talk about the chaos that we’re experiencing right now in the country from uncontrolled mass migration brought about by the Biden-Harris administration. Mostly, people focus on the very central role of the Department of Homeland Security, ICE, and other actors. But State Department plays, as you indicated, an enormous role, and we thought this paper would give a context for a new administration looking at how to do things differently – if, in fact, we have a new administration in January with a totally different perspective about protecting the country’s borders, about combating illegal immigration not only into the United States but around the world.
And when we – so when we take all that into context, it is impossible to not assess what the Biden-Harris – the radical Biden-Harris policies have brought about in our country, but also around the world, as their policies have incentivized the movement of people not only to the United States – largely to the U.S. – but around the world. Secretary Blinken has taken the language used in the multilateral context of the fact that, quote/unquote, “A hundred million people are on the march around the world, 20 million in our hemisphere.” And the policies of the Biden-Harris administration internationally has been to incentivize that movement, and bringing about in the process – it’s not a humanitarian policy at all; it has contributed to human trafficking on enormous scales; the growth of organized crime – the example of Mexico says how bad that has become; official corruption not only in our region, but in numerous countries which are often challenged to maintain rule of law in their countries. But when you have an administration in Washington announcing that we should facilitate – all countries should facilitate this international movement, it brings about enormous chaos. It is as if we should facilitate another contraband activity, like the movement of illegal drugs.
You take just one example before we get into some of the details about what State Department can do, because State Department has been instrumentalized in promoting this radical foreign policy. And the best example of that is the decision of the Biden-Harris administration to announce the Los Angeles Declaration on Migration, particularly focused on our hemisphere, in which the administration, under faux pretenses of supporting human rights, basically told the region that it should facilitate the unlawful movement of migrants across their countries. And this has been the central example in our hemisphere of how then the State Department has followed up with that diplomacy trying to help these people move unlawfully around the countries, pressuring foreign governments in our hemisphere to facilitate the movement of these migrants, and totally unmindful, again, of the human cost in all of this and how it contradicts all of the work that the United States has done, particularly in the Western Hemisphere, to foster the rule of law, to protect national borders, and to move against all of the elements that bring – that bring this together with the growth of organized crime.
So the next president, obviously, must reverse this foolish and dangerous diplomacy, and he must ensure that the State Department redeploy its institutional tools and resources and personnel. And they are significant and can play a vital role in, basically, changing the international tone and climate. Now, we get into this in some detail in our paper, but I would like to highlight some of the major points that are perhaps obvious enough if you work in the details of this – as I did, and Jessica, and Ambassador Landau when were stationed abroad, and also here in Washington – but are perhaps underappreciated by other folks in Washington, policymakers, and the American public in general to know how these tools can be used to bring some sort of stability internationally that will affect our national borders and our immigration situation in the country.
State Department – the new president needs to start by naming a secretary who sees these issues as core pillars in U.S. foreign policy, and these issues being the fight against illegal immigration internationally and the reinforcing of countries who want to protect their national borders. The existing law empowers the president and the new secretary, actually, to do many things. For example, the Immigration and Nationality Act, longstanding legal document that controls visa policy in the United States, commands the secretary and others, both State Department and DHS, to protect national borders and to maintain a legal, coherent immigration policy – exactly the opposite of what this administration has done with State Department over the past three-and-a-half years.
So these tools – legal authorities, foreign assistance money, and a clear-headed diplomacy can be used wisely to help build a coalition of likeminded countries around the world whose leaders actually desperately want to work with an enlightened American leadership to protect their national borders and to put a stop to this mass migration, which affects other countries radically as it does the United States. A good example of this is the country of Panama, which recently elected a new president who wants to work with the United States to shut down the Darien Gap, which is one of the key chokepoints for migrants not only from South America to move north, but from literally around the world; South Asia, Africans go to South America to make their way north. But this administration refuses to have the State Department do that. So that is a good example of how working with Latin American leadership, with foreign partners, you can build a policy – you can return to policies that include how do you deport illegals from your country, a policy that makes that effective instead of facilitating their movement. The use of a – the smart and aggressive use of Washington’s bully pulpit in international diplomacy can help set a new – entirely new tone.
So the new secretary, we would hope, will be seized with these issues, and he will work from the very beginning with a new administration on setting down a National Security Strategy, or NSS – a document that basically lays out how immigration policy/border protection is fundamental to U.S. international engagement. The NSS instructions become the operational elements of the strategic and planning documents inside State Department’s bureaus, which in turn drive decisions about funding another resources, and even become part of individual employees’ work requirements. It's widely known that there are several bureaus inside State that already work on these issues, but they desperately need to be refocused and commanded by new leadership.
Let’s start with the one that’s most obvious, which is the Bureau of Consular Affairs, known in Foggy Bottom as CA. It manages worldwide visa policies. And the core problem here is that CA typically puts visa processing on automatic pilot, unrelated to the U.S. national interest, unrelated to whatever we might be trying to achieve in that particular country. Instead, the CA needs to specifically instruct CA to link visa processing to such issues as how the host government cooperates with the U.S. Is the host government perhaps even ignoring or complicit in illegal migration that may be coming directly to our border or facilitating a third-country movement towards our border? How many of the country’s nationals overstay their visitor visas inside the United States? That factor should be related to how we process visas in those countries. It facilitates illegal migration inside the United States. And there are a range of things like this which we can talk about if there’s more interest in the question-and-answer part about how these tools can significantly curb illegal migration heading to the U.S.
Another key State bureau is known as the Bureau for Population, Refugees, and Migration, known as PRM inside State Department. It’s a key actor in all of this, because PRM administers almost $4 billion in U.S. assistance mainly going to international organizations. And these international organizations, contrary to promoting stability and the U.S. national interest or other national interests, help to facilitate the unlawful movement of economic migrants who have been deemed by these international organizations to be legitimate refugees. This is a basic disconnect. We need to signal in a new administration that the days of PRM awarding hundreds of millions of dollars to groups such as UNHCR, which then passes this money to illegal economic migrants to reach literally our southern border or European countries and to make applications for asylum, those days must end.
Additionally, PRM is running, as the Center has documented and examined closely, a series of so-called Safe Mobility Offices. These are offices that they decided to create out of thin air, reprogramming funds, so that they could fast-track economic migrants as if they were refugees to come directly into the United States. These Safe Mobility Offices, located largely in Latin America, Central American countries, need to be shut down on day one.
Another key bureau is the State Bureau of International Organizations. Why is that? Because the IO, as it’s called – diplomacy internationally – can work to challenge the deeply flawed international legal system today that fosters this mass migration globally, again under the guise of protecting refugees. It’s time for State Department to lead a diplomatic challenge in the U.N. that goes right at these misguided policies such as the World Compact on Migration and Refugees, but also the 1951 Convention Relating to the Status of Refugees and other related documents. These multilateral instruments are fundamentally out of step with the current world reality. They give bogus legal cover to unlawful movement of migrants and they promote mass illegal economic migration, and they need to be fundamentally remade. This is not something that State Department can do overnight, but taking the bully pulpit of U.S. international diplomacy we can begin to challenge this, basically, totally out of date legal – international legal system.
I’ll mention also the Bureau of Diplomatic Security, known in State Department as DS. DS is the law enforcement element in State Department that has the responsibility to investigate visa and passport fraud. It should be given new and vigorous mandates to find illegal immigration and to work closely with DHS, both at home and internationally. It is underutilized in this mission by State Department leadership. It can and should do much more.
All of the State Department diplomacy needs to be embedded with this mission of fighting illegal migration, and working to protect the U.S. border and other national borders. This would cut across how the regional bureaus in State Department prioritize their issues, such that the embassies and consulates keep these issues very central in the diplomatic messaging that they are engaging with in countries on the ground and the bilateral relationship. Governments who do not cooperate with these efforts – such as, for example, U.S. deportations which are coming under a new administration – must face severe consequences.
Finally, at home, I just want to mention domestically the State Department, obviously, is an international – is a foreign ministry, but it does have – does have the ability to pressure some of the sanctuary jurisdiction policies inside the United States that are unlawfully sheltering people, foreigners who should be deported. State Department can use, for example, its spending authorities inside the United States, take those away from those jurisdictions. California should not be having any U.S. money that the State Department spends on domestic activities, for example, such as training, or activities to recruit new officers, or other events and so forth. They should stop happening in those jurisdictions which are sheltering these migrants who should be deported.
So, with that as a roundup of some of the major points that we touch on in the paper – as I mentioned, I think I had input from careerists who are in – who are in service right now, and they remain anonymous. But they contributed their ideas to this paper. It is a long and somewhat detailed paper, but if people take the time to analyze it – and particularly those who are interested in reshaping how State Department performs on this important – these important agenda items – I think you’ll find a lot of good details that maybe we can get into in this discussion, as well, going forward. So thanks, Mark. That’s a short overview of what we wrote about.
MR. KRIKORIAN: Thank you, Phil. And before I go to Ambassador Landau, I want to remind everybody, again, who’s watching this live to send questions to M-R-T – that’s Mike-Romeo-Tango – [email protected].
So, Ambassador Landau? You need to unmute yourself.
CHRISTOPHER LANDAU: There you go. Can you hear me now?
MR. KRIKORIAN: Yeah.
MR. LANDAU: Thank you. And it was just really great to hear Phil’s comments. This is such an important topic. And I think it really goes to a very fundamental change that is necessary in U.S. policy – foreign policy writ large, that migration is now a global issue and has to be regarded – I think Phil used this term – as one of the pillars of U.S. foreign policy in the 21st century has to be curbing these mass-migration flows, which are destabilizing the world and, frankly, not doing any favors to the migrants, who are, you know, basically becoming indentured servants of a lot of the criminal organizations that help them in their journey, not to mention, you know, victims of terrible abuse, sexual and otherwise, as they try to make these very dangerous journeys. Again, we’re talking here about stopping illegal migratory flows.
These issues were, obviously, of particular relevance to me as ambassador to Mexico because traditionally this migration issue has been a U.S.-Mexico bilateral issue. By far, the largest migratory flows over our southern border with Mexico, which is 2,000 miles long, were single adult male Mexicans, and so it really was more than anything a U.S.-Mexico issue. I can’t underscore enough how that has changed in the last decade and become a truly global issue. Mexicans are now a distinct minority of those who have been encountered by CBP at our southern border, somewhere between 25 to 33 percent. So the majority of people – and again, most Americans don’t necessarily grasp the implications of this – who are crossing into the U.S. over our southern border are not Mexicans. This is a new phenomenon. That was not true even 15 years ago.
And so we have to recognize that this is the new reality of the 21st century. People are on the move. And, again, it’s affecting the United States; it’s affecting countries all over the world – obviously, Europe. And I think as we’re seeing populations explode in certain parts of the world while they’re going down in others – Africa comes to mind. I mean, their populations are exploding. I mean, I think the population of several African countries – Nigeria, Ethiopia – are going to be larger than the population of the United States by the end of this century. And so we just have to understand that these global mass migrations require a reassessment of U.S. foreign policy on a global scale, right? Because Mexico is no longer the problem – the heart of the problem, Mexico can no longer be the solution, right?
You can’t say that, basically, if somebody leaves Bangladesh, flies to Brazil, you know, goes by land over – Phil mentioned the Darien Gap, which used to be a virtually impenetrable barrier between South America and Central America, but now there is, basically, a Mayorkas highway going through the Darien Gap. So anybody who can get to South America, any country in South America that doesn’t require visas for people from another country can become a springboard for those people to come to the United States by land, OK? And so we’re talking about mass migrations here, folks. We’re not talking about tens of thousands, hundreds of thousands; we’re talking millions of people. I mean, obviously, we don’t know the unknown, but you know, during the Biden-Harris administration, you know, it appears to be somewhere between 10 (million) and 20 million people who have come into our country in just these last four short years.
And so I think this is becoming a – really, something that should be the subject of sustained American diplomatic efforts in the State Department. It has never been that way, right? People in the State Department have not traditionally believed that their remit included stopping illegal migratory flows. And you know, Phil made some good points. I mean, the consular officers are kind of, you know, stamping visas in other countries. I saw this in Mexico. It's one of the largest consular operations in the world. But there’s no accountability. So if, you know, John Doe or Mary Smith is on the visa line, there’s no way of evaluating whether John Doe or Mary Smith has done a good job. Like, you know, are 50 percent of the people to whom they’re giving visas going to the United States and staying there?
I don’t think these are impossible metrics to establish, but you know, I think consular – you know, standing at the consular window for, you know, like, you know, tourism visas, travel visas, is considered kind of, you know, the drudge work of the State Department, and that’s not kind of considered to be a sexy, important part of U.S. foreign policy. We’ve got to make sure that the incentive structure in the Foreign Service underscores the importance of that consular role, which is going to require having somebody at the head of Consular Affairs who really takes this seriously and creates these kind of accountability mechanisms.
You know, Phil also touched on PRM – the Bureau of Population, Refugees, and Migration – which, again, you’d think this would be the core bureau addressing this problem. I have the – their mission statement up on my screen. You can call this by just putting “State Department, you know, Bureau of Population, Refugees, and Migration.” And let me just read it, because I think it’s telling of the way they view their role right now.
It says: “The Bureau of Population, Refugees, and Migration (PRM) is the humanitarian bureau of the State Department. PRM promotes U.S. interests by providing protection, easing suffering, and resolving the plight of persecuted and forcibly displaced people around the world. We do this by coordinating humanitarian policy and diplomacy, providing life-sustaining assistance, working with multilateral organizations to build global partnerships, and promoting best practices in humanitarian response.” OK. Is there one word about curbing mass migration? And again, this is the Bureau of Population, Refugees, and Migration, right? I mean, this is just nowhere near to being their mission at the moment. We have to totally revamp this bureau and say, no, a focus – a pillar of U.S. foreign policy is stopping these illegal migratory flows.
We can have a discussion in our country about what the right levels of legal migration can or should be, right? But we should have no discussion, as a country committed to the rule of law, as between legal and illegal migration, right? I mean, it should be obvious that illegal migration should be off the table. And in terms of our State Department, our PRM, instead of funneling organizations, particularly NGOs and international organizations, that are promoting and encouraging this kind of migration, they should be trying to stop it. But it’s almost like an “Alice in Wonderland” world we’re in now where our own State Department is facilitating these flows.
So, again, I agree with Phil, and you know, I won’t – I won’t go into a lot more detail. I mean, I will say that, again, as ambassador to Mexico, I was shocked that when I tried to call other embassies around the world nobody really thought that was their problem, you know? I actually called the – I reached out to the embassy in Brazil and said: What’s going on with you guys – like, with all these people from other countries coming to Brazil without visas and then making their way to Mexico? And their response was basically, you know, stay in your lane. And you know, it’s kind of true, like, that as ambassador to Mexico I didn’t have the authority to tell the embassy in Brazil what to do, but I think it just showed that there is not a realization in our diplomatic service writ large that this is a challenge for American diplomacy at a global level, right?
Mexico is, for most migrants now, the last link in the chain, right? It is – we have to focus our diplomacy on every link in the chain, right, from the originating country to the countries they traverse on their journey to the United States and try to stop them at every link in that chain. If we wait until they’re in Mexico, then we’ve already lost the battle because we just can’t expect the Mexicans to be stopping these entire worldwide flows of migrants to us. I mean, we have to work with all the Central American countries, obviously, and the originating countries.
But again, I think most of this is just kind of, as Phil said, having a secretary and a – a president and a secretary who is saying this is a global objective of U.S. foreign policy. That has never been articulated before. And I think we have to create incentives for American diplomats that they will – that they will have incentives to care about this, and benchmarks. And again, to me, unless we recognize that this is a global problem and not just a U.S.-Mexico bilateral problem, we’re never going to solve it.
So thank you. Why don’t I leave it at that for now and let Jessica express her views.
MR. KRIKORIAN: Thank you, Ambassador Landau. And I’ll just repeat: If you have questions, send them to – email them to [email protected]. We have several questions lined up here.
But, Jessica, if you could give some of your thoughts.
JESSICA VAUGHAN: Sure. First, I want to say thank you, Phil, for doing this report. It’s outstanding, insightful. I hope everyone will read it. And what’s really important is that it – I like the way you are seeking to challenge some of these sacred cows and interpretations of the State Department’s mission.
And you know, there are a lot of immigration hawks and people in Congress, especially, who think that the State Department is no longer a suitable place to be running such important immigration functions, and that the consular function actually should be stripped away from the State Department. I don’t agree with them. I do believe that if some of these leadership changes can be made at State, and if leaders can be brought in who will try to instill a different view of what the mission is and how to synchronize it with larger national security goals, immigration policy goals, and so on, that the State Department is up to this challenge and the people within it are up to it – because leadership, part of that is sending a message of what’s going to be valued, how things are going to be done. So I think that’s really important.
What I want to do in my remarks is really just build on some of what Phil has written about and talk about – more about the visa function itself and some changes that need to be made there. Specifically, I want to talk about overstays and dealing with some of the third parties who facilitate mass migration and actually gain from it themselves – and if we have time, maybe a little bit about border crossing cards.
Specifically with respect to overstays, it’s been estimated that about 40 percent of the population of people residing here illegally are people who have overstayed their visas – who the State Department has issued temporary visas to them, they’ve come here, and they have not gone home. That’s about 5 (million) to 6 million people if those estimates are correct. And according to the most recent Department of Homeland Security report on overstays for 2023, about 565,000 people are estimated to have overstayed their visa in that year, in 2023, which is a huge number of people not complying with the terms of their visa. And about – between two-thirds to three-quarters of those people actually were issued visas, they’re not coming in under Visa Waiver Program, although there are some overstays that do that. But the vast majority of the overstays are people who were issued a visa.
And it’s just astounding that the State Department administers these visa programs really without much accountability whatsoever for – or quality control, or analysis to see whether they’re doing a good job. And to reference Ambassador Landau’s point, we do have the tools to know even if individual officers are making poor decisions, not applying the law, or if individual embassies or consulates need to think differently about the criteria that they’re applying to determine whether people qualify for a visa. There’s a – we can do a much better job of that, it’s clear. 2023, that 565,000 was actually an improvement over the prior year, but it’s not a good record overall if we have such a high rate of people overstaying.
And we need actual – an actual strategy to address this because visa overstays, as we know from 9/11 and other cases of people associated with terrorism, they represent potentially a national security problem. It’s a visa integrity problem. It can become a labor market problem. It can become a crime problem because traffickers exploit these visas, as do transnational criminal organizations. So this is really a critical function of the State Department that we need to do a better job.
And Phil has outlined a lot of good ideas in his paper of specific recommendations for action. I just want to mention a couple of other things.
I really like the idea of establishing triggers whereby countries or categories of visas where there are too many overstays where there are enhancements to the vetting that occurs; that will attempt to hone in on which are the riskier cases; which are – you know, which types of applicants should not be issued a visa; which places in the world are a problem; how can we work with those countries to address these problems. I think that’s really important.
And what a lot of people don’t realize is that many of these applicants are no longer even interviewed anymore, just a small share of visa applicants, and that consular officers do not have much time to adjudicate these applications. And that’s because the visa function is treated as a management problem, really, rather than a national security or immigration issue. It’s, you know, how can we process as many people as possible with as – you know, as efficiently as possible, not looking at whether the correct decisions are being made.
And so the State Department really needs to start using that overstay data that is generated and analyzed and presented by the Department of Homeland Security to start narrowing in on these cases. We could look at an individual’s issuance record and what is happening. We can look at, you know, whether student visa holders from the Cameroon are overstaying in rates that are too high and decide to adjust. So that has to be done.
And there needs to also be accountability not just for the officers themselves or for individual posts, but also for the organizations, the businesses, the institutions that are sponsoring individuals from other countries to come here on a visa – the universities that are issuing those – they’re called an I-20 form that tells a consular officer that someone has been accepted to a particular school and can apply for a visa. We should be looking at imposing some kind of accountability on these third parties for having high overstay rates of people who are associated with whether it’s a school, an NGO, or a business that is sponsoring people to come in on non-immigrant visas who are not returning to their home country. There definitely are ways to do that. And I think if we were to start that, there would emerge more of a sense of self-compliance with the law, particularly among some of these educational institutions that need to really have a good record of compliance. Right now nobody seems to look and they face no consequences, for example, you know, a particular school or diploma mill or even employers whose people they’re sponsoring are overstaying.
And we really can’t overstate the role of third parties in, really, facilitating the movement of people into this country on visas. As I said, there are more than a million foreign students here. Not all of them are in, you know, good academic institutions. Some of them are here in community colleges, in English language learning programs, in high schools. And many of these are offering their graduates the chance to participate in the Optional Practical Training Program, which is the biggest work visa program that Congress never voted for. Hundreds of thousands of people each year who graduate from a U.S. institution are permitted to stay on here as employees. And the State Department could have a role in overseeing some of these programs to make sure that they’re legitimate and appropriate.
Also, labor contractors are recruiters and middlemen, and often are essentially labor traffickers who are gaming our visa systems to bring in workers who are employed at American companies, who are insulated from some liability for how these workers are treated and the conditions in which they work and the terms under which they came here, and are looking the other way and not held liable for what is, essentially, often labor trafficking that occurs, not only in the low-skill visa programs but also in some of the white-collar programs as well. And those third parties can and should be held accountable for that, and State could have a role in that and should have a role.
But the biggest, and I think most appropriate and important, area that we need to look at the third-party relationships and the third-party programs is in a – is with the exchange visa programs. These are foreign exchange programs either for work or for learning or for a cultural experience. We issue about 350,000 of them every year. The most probably well-known program that people think of when you talk about the exchange visa programs is the Fulbright program or high school exchange programs, but people don’t realize that actually those are a very small part of the exchange visa programs. Most of them are – you know, the largest numbers are coming to do work like lifeguarding, camp counselors, bartending, things like that.
So this is run out of the ECA Bureau – Educational and Cultural Affairs Bureau – at the State Department. Their stated mission is to promote mutual understanding throughout the world. These are operated under the rubric of cultural diplomacy. And so we really need to have a leadership team at State that will evaluate whether these work programs, whether they’re au pairs or camp counselors, are truly leading to or providing the kind of cultural diplomacy that they purport to do.
So many areas that can be approached and should be done by State. And you know, that’s also why, as Phil suggests, we need an individual at the top level of leadership at State who is a political appointee who can coordinate all the many parts of the State Department that have a role to play in managing this.
And so, with that, I’ll turn the microphone back over to Mark and see what kind of questions we have. Thank you.
MR. KRIKORIAN: Thank you, Jessica. We actually have some questions. Again, [email protected] if you’re watching this live.
Since I paid for the microphone, I had a question myself first which is kind of a broader question that all of you can deal with, and each of you has sort of referred to it to some degree. Now, Phil, you’ve talked about how, you know, we need – if there’s new leadership at State, they can set a different tone. But there is sort of the danger of sort of ping-ponging between administrations – you know, one administration is tougher and then the next one loosens up – and that’s always an issue. But it seems to me a big part of the problem is institutional; in other words, there are institutional incentives within the State Department to ignore immigration issues because, you know, if – in a sense, to put it very crudely, you want to make nice with the country you’re in, and if you’re turning down people for visas they don’t like that, and so, you know, there is this – as the head of the consular office in Riyadh said before 9/11, people gotta have their visas. Well, they don’t gotta have their visas, but that is the kind of institutional incentive.
And so one thing I wanted to throw out – and Jessica referred to this – is that visa issuance, you know, is in the hands of the State Department Bureau of Consular Affairs. Should visa issuance simply be removed to, for instance, ICE to create different institutional incentives so that, instead of being a kind of hazing process for new Foreign Service officers where they have to issue visas and they do it because they don’t have any choice if they want to go on to do something else, it becomes, for instance, ICE’s Foreign Service to issue visas, and they have a very different institutional incentive? So, anyway, just that idea of is there a way to change institutional incentives so that even if the political personnel change there will at least be some underlying incentive to focus State Department on immigration control and border control issues. So whoever wants to take it, Phil or whoever wants to take that.
MR. LINDERMAN: I’ll start. Mark, that’s a – that’s a great point. And in my career, I look back wherever I was posted – sometimes in countries where a visa was a matter of desperation, but also in countries in Western Europe where people wanted their student visa, whatever; the pressure for visas on American officials is always enormous. It could be that in breaking that down, what I think I have learned is the most important factor is a domestic enforcement mechanism because the system is very imperfect. You’re dealing with human beings making decisions on imperfect information, and the counterpart in that formula – the person who receives a visa – has also life-changing events that can happen. If that whole process goes on kind of a self-policing status, which is what we’re living with right now, it’s probably doomed to have overstay problems whether it’s State Department officers issuing the visas or DHS officials issuing the visas. They will be subject to the same sort of pressures if they are posted abroad that State Department officers are. That dynamic is very intense. It’s very much part of almost any bilateral relationship.
The best way is not to frontload the process with having better – in my judgment, more perfect or more law enforcement-oriented people in the process, although that could be a factor. I think the greater factor, again, is to recognize without significant serious domestic enforcement, exactly as Jessica was indicating, that companies, universities, employers who facilitate people to overstay their visas, and other institutions in the United States, and there’s no consequence for it. Unless we address that, trying to fine-tune this on the issuing side is always going to be very frustrating. That’s my take on it.
MR. KRIKORIAN: Any thoughts?
MR. LANDAU: My perspective or my understanding – and again, I don’t claim to be the world’s foremost expert on this – is that the post-9/11 commission actually recommended what you are saying, Mark – you may know this better than I, or one of our listeners may be able to correct me on this – and said that this should be – that the visa function should be transferred to DHS. And my understanding is that it’s only because of an MOU between DHS and the State Department now that that has not occurred.
Look, I think we need to explore all options. I mean, I am not – I’d like to know more about the facts and figures, and understand – you know, put in place a system of accountability that at least makes it clearer how good of a job the State Department is doing on its consular function in terms of stopping it. I think Phil made a good point that this, as a practical matter, may be hard to identify, you know, overstay risks on the front end. But I do think that there is a case to be made for saying that, you know, the incentives for a – somebody who’s employed by the Department of Homeland Security to get it right is probably more significant than at least the current incentive structure for the State Department.
So, again, I think we might want to start a pilot project somewhere to see how that would work. You know, I have an open mind about this. I mean, I think we’ve got to think about, you know, creative ways to address the problem. I do think it is a problem that, for most State Department people in my experience, you know, they kind of roll their eyes. And you know, the visa line is like, you know, a hazing ritual that young Foreign Service officers go through, and I don’t think it’s something that – you know, people didn’t sign up to, you know – or, for most people, they didn’t sign up, you know, to the Foreign Service to do that.
We also have, you know, some specialized – or, “specialized” is the wrong word, but we have – I saw this in Mexico. Because there’s so much demand for consular function, we didn’t have enough FSOs to – Foreign Service officers – to fill those slots, and so we have kind of a – certain employees at the State Department who are not FSOs who come in as contract officers for a limited period of time and are manning – are staffing the visa lines in some of our most congested consular posts. And again, I don’t know what their incentive structure is. And you know, I think there should be just a look at all of this.
I mean, let me say right now in Mexico at least, as of the last time I checked a few months ago, somebody just wanting to apply for a tourist visa to the United States, there was a two-year wait for an appointment. And this could be somebody who, you know, had no questions. I mean, this is somebody who might be very wealthy and want to come here because they have a – you know, a house in Houston, or whatever. Like, it seems to me it would be sad if we reach this state of affair because I do think the consular function has traditionally been one of the core functions of American diplomacy. But again, I think we just – we’re in a different world now, and we need to see how we can do this more efficiently and how we can create an incentive structure.
I think you hit on a good point, Mark. We need to create institutional incentives that do a better job here. Whether those are in the State Department or another department, I think, you know, that’s an important conversation to have.
MR. KRIKORIAN: Jessica? Because you had said that it’s probably worth keeping in the – the visa process within State. It seems to me that something you kind of referred to – and I’d like to hear more about it – is, is there some way to make either consular posts or even individual officers accountable statistically – in other words: You issued this visa; this person overstayed – and that that sort of ends up in your permanent record, as it were, that kind of thing?
MS. VAUGHAN: Well, it’s certainly possible to do that, and we can – we can do a better job of quality control. There’s no question. Although I do agree with Phil that without better self-compliance among the sponsors and without better interior enforcement on the part of ICE, it’s very difficult to do. There’s no question we can adjust our criteria for issuing visas in places where we know there is – there are very low compliance rates. But there has to be an effort at domestic enforcement, interior enforcement, as well, to really impose consequences for overstaying and consequences on the facilitators of these visas.
But I want to just make one quick point about our relationship with other countries. I don’t – yes, many of the sending countries, their governments really like to get the remittances and the visas for their own family and friends to travel to the United States. But there also are countries that resent the brain drain and the exodus of talented individuals to the United States in some of these programs, and so I don’t think we should discount their potential willingness to work with us on better compliance.
MR. KRIKORIAN: Interesting.
So we have a question here that, Phil, you kind of referred to and you discuss a little more in the paper. What role can State Department play – it seems improbable, but is there a role for State Department in trying to dissuade sanctuary jurisdictions from protecting illegal immigrants? Because by definition, the State Department is dealing with diplomatic issues. They’re not – there’s no ambassador to New York City. But is there – what can the State Department do to help any broader effort to stop sanctuaries?
MR. LINDERMAN: I touched on in my remarks the fact that State Department does spend money domestically – inevitably, passport processing centers, training activities, recruitment. It’s not large money, but that money could surely be directed to states – away from states and cities that are sanctuary jurisdictions. That’s one thing.
A more coordinated policy at the White House level or national security level could link visa functions, for example, that go to service – go to comply with people who are in a sanctuary jurisdiction, could put restrictions on those and simply say that if in the state of California – a notorious sanctuary state – you’re expecting literally tens and hundreds of thousands – I think there are a quarter-million foreign students in California who are routinely processed. If you expect that to happen, you need to stop being a sanctuary jurisdiction. And unless you do that, we will find ways to restrict the visas that are coming routinely to you and your universities. Things like that, I believe, could and should be on the table, and State Department surely would play a big role in that.
MR. KRIKORIAN: Yeah. That would be interesting.
Yeah. Yes, Ambassador Landau?
MR. LANDAU: Let me just add in, you know, I am not only a former diplomat, but also a lawyer. You can see I clerked at the Supreme Court for Justice Scalia and Justice Thomas back in the day. And I do think that a lot of times these issues wind up in the courts. And I think the State Department, as the kind of mouthpiece or voice of American foreign policy, can be persuasive in telling judges, like, these decisions you’re making also have important foreign policy implications. And I think that will give some pause to judges to be overriding some of the decisions of the – you know, the domestic branches of our government, because I think courts are particularly loath to get involved in U.S. foreign policy. So I think just having, again, a State Department that is kind of active throughout the building so that the Legal Adviser’s Office recognizes these kind of issues. And if DHS is getting sued, maybe there should be a declaration as part of a lawsuit, you know, from somebody in the State Department about the impact of this on U.S. foreign policy.
Certainly, the Biden administration has been doing that in lawsuits against the states, like Texas. You know, you had State Department people submitting declarations saying, no, this is going to – if you – if you allow Texas to do this, it’s going to really hurt relations with Mexico, right? They had, you know, people from the State Department submitting declarations on U.S. relations with Mexico. They came to me and said, could you please submit a counter-declaration? I said, look, I’m a private citizen. You know, I can say what I can say, but obviously, I don’t speak for the U.S. government as a private citizen. But you know, again, I think there is a role to be played there too.
MR. KRIKORIAN: Interesting. We had a –
MS. VAUGHAN: One quick thing, Mark, very quickly on this.
MR. KRIKORIAN: Oh, sure. Go ahead.
MS. VAUGHAN: We should remember that it’s the Department of Homeland Security, specifically ICE, that actually signs off on any universities to – you know, to have authorization to admit foreign students. And these sanctuary policies are based on the idea that there shall be no cooperation or information sharing between our state institutions and ICE. Well, ICE can turn – you know, it’s the law that if they want to have foreign students they have to share information on those students with ICE. So if they’re – if, you know, they’re not going to share information, well, then I guess no state colleges or universities, you know, potentially would be able to host foreign students, if you’re really going to have this bar on communication. So that’s a tool as well.
MR. KRIKORIAN: Right. Interesting.
We had a question about the issue of recalcitrant countries. In other words, and you – several people touched on it, the issue – the authorization in the law that if a country’s not taking back its own citizens when we try to remove them or slow walks it that we can stop visa issuance. And this has been, basically, determined by which – what administration is in power. I mean, the Bush and Clinton – I mean, the Bush and Obama administrations very seldom – I think one time each – used that power. Under Trump, they used it against a number of countries more energetically. But getting back to my issue – my question of ping-ponging policies when each administration changes, is there a way to make the process of stopping visa issuance in countries that won’t take their own people back – is there a way to make that more automatic, so if we have an AOC administration someday in the future it will be harder for them to not issue – I mean, to start issuing visas to countries that aren’t cooperating with us? Any thoughts on that from anybody?
MS. VAUGHAN: Well –
MR. LANDAU: I think if you want to do that, you probably need a change in the law, right? I mean, the –
MR. KRIKORIAN: Probably, yes.
MR. LANDAU: Again, I’m putting on my lawyer’s hat, but you know, Congress makes the laws; the executive branch executes the law. The executive branch can come up with different priorities and policies in terms of enforcement decisions. You know, where you can force them to do something, if Congress put in the law kind of what you were saying – if a country refuses to take back its nationals, which it’s obligated to do under international law, the following sanctions shall kick in, and leave no discretion for the executive branch not to do that.
MR. KRIKORIAN: Right.
MR. LANDAU: Again, you know, like, our system is really only as good as the people who are, you know, in it at any given moment in time. Ultimately, we’re human institutions. But I think to try to limit executive discretion – it’s shameful right now that the U.S. is acting so weak. We hold so many cards in terms of, you know, carrots and sticks to get other countries to take their nationals back, which they’re supposed to do, right? And we act like, oh, no, we really don’t want to ask that, like that’s tacky. Or I don’t know why we don’t – we don’t take advantage of, you know, our ability to try to do that.
Now, again, your question is really to an administration that doesn’t want to do that.
MR. KRIKORIAN: Right.
MR. LANDAU: And how do you – how do you address that? Again, the most obvious thing, it seems to me, is Congress, which has plenary control over immigration, you know – except insofar as it delegates that to the executive branch, Congress can just limit the discretion of the executive branch.
MR. KRIKORIAN: Right.
Any thoughts? Yeah.
MS. VAUGHAN: Well, Congress also has – Congress also has another authority, which is the appropriations authority. And I believe that there is potentially a way to address it through the – through the spending bills.
MR. KRIKORIAN: Right.
MS. VAUGHAN: You can really control agencies pretty effectively that way.
MR. LANDAU: Supposedly, although the last few years has not shown much ability, with this administration basically declaring they’re not going to enforce the border laws. Obviously that’s – you know, we control – you know, the Republicans controlled one branch of Congress for two years of this administration. But you know, that – again, I don’t disagree with that, but that has not in practice been as effective as it should be.
MR. KRIKORIAN: Any last thoughts, Phil? Because we’re running up on an hour.
MR. LINDERMAN: I think you touch on a very difficult part. This involves virtually, as both Chris and Jessica indicated, a constitutional question. The Congress has to exercise its checks and balances.
If anything, this administration – current administration, Biden-Harris, has shown that if they want to be radical enough they can take an agency like CBP, which is dedicated to protecting our border, its statutory duty, and force it, basically, to become an agency that is processing people into the country. So the task is mammoth. And without – as Chris says, without the right kind of leadership, and the human element really being reasonable and constitutional and bound by the rule of law, we are going into unchartered territory. So to answer your question, Mark, I think it’s pretty hard to do what you say.
MR. KRIKORIAN: Interesting. Well, thank you.
Thank you, Phil Linderman, for this paper – it’s on our website at CIS.org; the main title is “Foggy Bottom and the Border: Harnessing the State Department to Lead a U.S. Foreign Policy That Fights Illegal Immigration and Promotes Border Security” – and our commenters, Ambassador Christopher Landau and Jessica Vaughan. This will be – obviously, the recording will be on our website at CIS.org. Thanks, everybody, for participating, and thanks to all of you for tuning in.
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