The State Department issued a cable to consular posts on Wednesday, instructing consular officers to suspend processing of immigrant visas for nationals of seventy-five countries until further notice. The cable went out under the signature of the relevant Assistant Secretary. Notification of affected applicants was, per the cable, to be handled by the receiving post.
The list of seventy-five countries was, in the public version of the cable, redacted. The redaction is procedurally unusual. Country lists are not, in the ordinary course, a national-security matter. The publicly known travel proclamation that took effect on January 1 named forty countries. The cable exceeds the proclamation by thirty-five.
This is a meaningful difference. A presidential proclamation is published in the Federal Register, subject to challenge in court, and reviewable by Congress. A consular cable is not. The legal status of an immigrant-visa applicant in Lagos or Manila or Karachi who has paid filing fees, completed a medical exam, and scheduled an interview is, on Wednesday afternoon, a function of which list applies, on which letterhead, with what redactions.
The mechanism in use is, in the literature of administrative law, called sub-rosa policy. A directive issued through internal channels, with limited public notice, that produces the operational effect of a published rule without the procedural protections of one. It is not, by itself, illegal. It is, by itself, a known indicator that the agency in question is operating at the edge of the legal regime intended to bind it.
The immigration bar moved to obtain the unredacted cable through Freedom of Information Act litigation. The State Department, in past responses to such litigation, has used five- and seven-year processing windows. The applicants whose interviews were canceled on Wednesday will, in operative effect, have their applications resolved before the litigation produces the document that explains why they were canceled.
A serious consular regime publishes its country lists. A serious consular regime tells the applicant, in writing, the reason for the denial. A serious consular regime is not a regime that issues redactions where the country names go.
Calmly documenting the decline.
The breakdown.
- Factual basis The cable exists. The redacted list does not match the public proclamation list.14/25
- Self-awareness Issued through consular channels rather than by proclamation.6/20
- Staff containment The Foreign Service implemented; legal challenges followed.11/20
- Recovery attempt None. The cable stood.5/15
- Public spectacle Trade press; immigration bar; Commonwealth governments.9/20
Was this dumb enough?
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