Judge Orders Investigation Of Visa System Foreign Service Worker Says He Was Fired For His Refusal To Discriminate
In at least one State Department post abroad, officials marked applications for temporary U.S. visas with such codes as LP for “Looks Poor,” LR for “Looks Rough” and TP for “Talks Poor.”
A former Foreign Service officer who said he was fired after refusing to go along with the system is suing, arguing that the codes mask racial and ethnic discrimination. As part of the case, a federal judge has ordered the State Department to investigate whether officials in other consulates discriminate in choosing who may visit the United States for limited periods.
The judge acted in response to Robert E. Olsen’s claim that he was dismissed for failing to follow the official screening practice in a Brazil visa office.
The State Department concedes that the codes were in effect but says they were “sensible tools” to weed out visa applicants who are likely to stay on in the United States illegally. The department is resisting the judge’s order.
The State Department, for its part, branded the accusation a “baseless” attempt by Olsen to dismiss “the overwhelming evidence of (his) incompetence.”
The suit seemed a routine personnel dispute until U.S. District Judge Stanley Sporkin last month declaring that he took Olsen’s charges of discrimination seriously.
Sporkin said he found it “clear from the record” that Olsen, who now practices law in the Washington area, was fired because he failed to comply with the visa policy, not because he was incompetent. Sporkin said the codes, while appearing to pinpoint people who are indigent, raised a deeper question.
“It is a disturbing reality that in many countries, such as Brazil and even the United States, certain ethnicities are disproportionately represented among the poor,” Sporkin wrote.
“The issue is what, if any, consideration can a Cabinet agency of the federal government give to skin color, race or national origin when determining the socioeconomic status of a visa applicant.”
To help find the answer, the judge ordered Secretary of State Madeleine Albright to find out which U.S. embassies and consulates use profiling codes, why and how they are used, and what is done to guard against decisions based on race.
The State Department refused to gather the information.
Instead, Assistant U.S. Attorney Sherri Evans Harris, representing Albright, said in legal papers filed last week that Sporkin’s order was improper, that there was no need for further evidence and that he should dismiss the suit.
The designations RK (“Rich Kid”), LP, TP, LR and TC (“Take Care”) “may at first blush appear insensitive,” Harris said, but “there was nothing sinister about these instructions, much less discriminatory or inconsistent with (federal immigration law).”
They were merely “sensible tools” used to flag applicants most likely to use a temporary visa to abandon their home country and illegally stay on in the United States, Harris said. Young, single people with low-paying jobs and no previous travel outside Latin America fall into that category, she said.
Olsen, who is his own lawyer, said Wednesday he would file a response in support of Sporkin’s order. “I think we’re looking more at political spin than legal argument,” he remarked. “That’s all I care to say at this point.”
His suit cites his supervisors’ written warning that Brazilians with Arab or Chinese last names were two groups “to worry about” and should “set off bells and whistles.”
People in those groups who applied for temporary visas were regarded as possible fraud suspects “unless they have had previous visas and are older,” the guidelines said.
But Harris said it is appropriate for guidelines to note “the types of applications that might present a high risk of fraud, such as applicants claiming passports were stolen, or cities and agencies known for fraud.”
According to the State Department, virtually every U.S. consulate has developed its own guidelines to help determine who should be admitted - or denied admittance - to the United States for a temporary business or pleasure visit. Such guidelines are based on local conditions and experience.
Olsen was discharged for “unsatisfactory performance” in 1994 and now seeks reinstatement, back pay and $750,000 in damages from the State Department for allegedly violating his federal and constitutional rights.
Judge Sporkin found Olsen to be intelligent and articulate, but the State Department said his judgments on visas were “wildly and inappropriately inconsistent.” He issued visas to unqualified applicants and refused visas that should have been granted, Harris told the judge.
The Foreign Service Grievance Board upheld Olsen’s dismissal. But the board discounted a State Department survey showing that 22 percent of the visas issued by Olsen went to people who were illegally living in the United States, compared with 8, 5 and 0 percent for three other visa officers in Brazil.
It was “unacceptable,” the board said, to allow one of the other three officers to select the cases to be checked and help code the results.