Transfer Visa Functions to DHS? Who's Listening to Whom?

When you talk to the hand, does the hand listen?

Shall the Trump Administration transfer all passport and visa functions from State's Bureau of Consular Affairs to the Department of Homeland Security? According to Reuters, the Listening Survey Report that will form the basis for a reorganization of the State Department recommends doing so. "There may be an opportunity to elevate efficiency and reduce cost by this change … Indications are that doing so would elevate security at our borders" it said.

Oh? Who indicated that? The report doesn’t say. Possibly no one did, at least no one among the 35,000 State employees who responded to the survey. But then, the only voice worth listening to may have belonged to Carl C. Risch, the current Acting Chief of Staff in the U.S. Citizen and Immigration Services (DHS), who will be nominated to be the next Assistant Secretary for Consular Affairs.

See Diplopundit's posts on this matter here, here, and here.

No matter who listened to whom, there is a long history of legislation and policy on the question of whether passport and visa functions would be better served if retained with State or transferred to DHS, and so far the decision has been to keep them with State.

The post-9/11 Congressional debate on visa policy and the roles of State and DHS resulted in a 2003 memorandum of understanding between the two agencies. See this Congressional Research Service report from 2004, which was updated in 2011, for the details.

Quoting from both reports, the pros and cons of moving visa functions to DHS were, briefly, these.

Proponents of DOS playing the lead role in visa issuances assert that only consular officers in the field have the country-specific knowledge to make decisions about whether an alien is admissible and that staffing approximately 250 diplomatic and consular posts around the world would stretch DHS beyond its capacity.

Those who supported retained immigrant adjudications and services in DOJ and visa issuances in DOS point to the specializations that each department brings to the functions. They asserted that the "dual check" system in which both INS and Consular Affairs make their own determinations on whether an alien ultimately enters the United States provides greater security.

Others opposing the transfer of INS adjudications and Consular Affairs visa issuances to DHS maintained that DHS would be less likely to balance the more generous elements of immigration law (e.g., the reunification of families, the admission of immigrants with needed skills, the protection of refugees, opportunities for cultural exchange, the facilitation of trade, commerce, and diplomacy) with the more restrictive elements of the law (e.g., protection of public health and welfare, national security, public safety, and labor markets).

They also pointed out that under current law, consular decisions are not appealable and warned that transferring this adjudication to homeland security might make it subject to judicial appeals or other due process considerations.

Voices in support of moving Consular Affairs's visa issuance responsibilities to the proposed DHS asserted that consular officers emphasize the promotion of tourism, commerce, and cultural exchange and are lax in screening foreign nationals who want to come the United States.

Some argue that visa issuance is the real “front line” of homeland security against terrorists and that the principal responsibility should be in DHS, which does not have competing priorities of diplomatic relations and reciprocity with foreign governments.

I count more cons than pros. So it's settled then, the functions remain with State, right?

Not so fast. There is still the important matter of political perception. How does the Trump Administration perceive State versus DHS as the implementer of its visa policy?

Writing in National Review a month ago, Jonathon Tobin, the online editor for Commentary, pointed out why the Administration might not trust State as much as DHS:

In January, 1,000 State Department staffers signed a cable protesting Trump’s original travel-ban order. But, unfortunately, the problems in the Foreign Service go beyond such flamboyant, and clearly inappropriate, gestures. As the New York Times reported this week, tension between the White House and senior levels of the diplomatic corps is rising. If true, this is troubling because if senior personnel — people who have served under both Republican and Democratic administrations and who should be setting an example of apolitical behavior — are ready to step outside their lane and demonstrate their opposition to the government of the day, that raises the possibility that the president can no longer count on the loyalty of the Foreign Service.

Snip

[W]hen diplomats start acting like free agents rather than like the voice of those who were elected to set foreign policy, the notion of a conflict between career civil servants and those chosen to run the government stops being a paranoid fantasy ... setting policy is still the purview of the president, not the civil service.

That highly publicized dissent channel cable on the travel ban, and the more innocuous resistance stuff, may be nothing more than the actions of people shell shocked by election night, but they nevertheless create an impression. DHS, meanwhile, is showing itself to be very highly motivated to carry out the White House's policies on immigration and aliens. If you were in the White House, which agency would you trust with a critical part of your agenda?

This is far from a done deal, no matter what the Listening Survey reports or what State's reorganization contractor reads in its word clouds. To transfer those functions to DHS the Administration would have to overcome significant bureaucratic and financial barriers, plus, it would just be a bad idea for all the same reasons that Congress already found in the years after 9/11. But that doesn't mean it won't happen all the same. Should State ends up losing those functions, it will be a self-inflicted wound.