State Department may not "take . . . any personnel action against any employee . . . for refusing to obey an order that would require the individual to violate a law." Although the Board never explicitly addressed the legality of the Consulate's policies, this issue is essential to how Plaintiff's judgment and job performance are to be interpreted. If the policies are clearly valid, then the Board's decision is quite reasonable, for Plaintiff appears rather insubordinate. If, on the other hand, the policies are unlawful, then Plaintiff's conduct must be interpreted in an entirely different light. Rather than being uncooperative, Plaintiff appears to be exercising his right to refuse to obey illegal orders while at the same time attempting to meet the demands of his superiors.
1. The Consulate's Policies
An initial look at the Consulate's policies suggests that they are suspect. The policies instruct visa officials to rely heavily upon factors such as physical appearance and national origin when adjudicating the applications of visa applicants. The Consulate's policies establish fraud profiles that are centered around particular nationalities that are deemed inherently suspicious and extremely likely to engage in fraud. Plaintiff was disturbed about these policies, and the administrative record suggests that he attempted to avoid using them as he dispatched the duties of his position. In fact, the Court concludes that the Consulate's policies are unlawful and that Plaintiff was justified in refusing to follow them.
Although the Constitution clearly prohibits discrimination on the basis of race, ethnicity, or national origin, the Supreme Court declared that "the power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Shaughnessy v. Mezei, 345 U.S. 206, 210, 97 L. Ed. 956, 73 S. Ct. 625 (1953). During most of its history, the United States openly discriminated against individuals on the basis of race and national origin in its immigration laws. The oldest naturalization laws only permitted "free white persons" to be eligible for United States Citizenship. See Charles Gordon et al. Immigration Law and Procedure § 95.01 (1997). The Chinese Exclusion Act of 1882 expressly excluded Asians from immigrating. See Act of May 6, 1882, ch. 126, 22 Stat. 58, repealed by Act of Dec. 17, 1943, ch. 344, 57 Stat. 600. The Immigration Act of 1924 established quotas based on nationalities, resulting in a disproportionate exclusion of Africans and Asians. See Immigration Act of 1924, ch. 190, 43 Stat. 153 (amended 1952).
Throughout the latter half of the Twentieth Century, Congress moved away from such discriminatory policies. The most profound change was the Immigration and Nationality Act Amendments of 1965. See Pub. L. 89-236, 79 Stat. 911. That Act eliminated discrimination on the basis of race and national origin. Pursuant to 8 U.S.C. § 1152(a)(1)(A), "No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence." The legislative history surrounding the 1965 Act is replete with the bold anti-discriminatory principles of the Civil Rights Era. Indeed, the 1965 Act was passed alongside the Civil Rights Act of 1964 and the Voting Rights Act of 1965.
The Government does not contend that the Consulate is permitted to engage in discrimination on the basis of race, ethnicity, or nationality; rather, the Government maintains that the Consulate's policies are not discriminatory. The Government argues that the notations about an applicant's physical appearance, such as "Looks Poor," "Looks Rough," etc., are used only to inform the interviewing officer as to why another consular officer believes that an interview should be conducted. Visas are denied not solely based upon these notations; rather, the appearance of the applicant is merely one factor in the decision. To support its position, the Government points out that many of the cases that Plaintiff complained about ultimately concluded with an approval after the interview. Further, the Government claims that the statements that Koreans, Chinese, and Arabs are likely to be committing fraud are not designed to serve as grounds to exclude these groups from obtaining visas. These generalizations based on nationality are used only to alert the visa officers of the potential for fraud and instruct them to be more careful in their examination of individuals with such national origins.
The Court finds that the Consulate's policies were not as benign as the Government contends. The administrative record contains substantial evidence that physical appearance played a large role in visa determinations. Although codes such as "Looks Poor" and "Looks Rough" appear only to concern an applicant's economic status, the reality is that in many countries, such as Brazil and the United States, certain ethnicities are disproportionately represented among the poor. As Plaintiff observed in a letter to the Board paraphrasing and complaining about the policies: "The applicant's race or skin color, dress and personal appearance, and demeanor are usually surer indications of his or her economic class than the information contained in any documents. Especially in adjudicating without interviews, officers should deny visas to persons who 'look poor,' 'look rough,' or 'look slimy.' . . . Dark-skinned Brazilians 'look poor' because a disproportionately large percentage of Brazilian 'pardos' (racially mixed) and 'pretos' (blacks) are in fact poor." A.R. 452-53.
The Consulate's policies are discriminatory because they are strongly based on impermissible generalizations and stereotypes, not because these factors are the sole and exclusive reason for denying a visa application. The singling out of applicants for additional scrutiny based upon a discriminatory profile -- which is likely to increase the possibility of visa denial -- is sufficiently burdensome to cause a substantial injury to these groups. If the profiles really did not have much effect on the visa adjudicatory process, then there would be no need to use them. It is precisely because the Consulate deemed the profiles especially useful in identifying cases of fraud that they were used.
The most disturbing elements of the Consulate's policies are the statements in the manual and the April 1993 memorandum concerning applicants of specific nationalities. Although these passages do not explicitly instruct the visa officer to deny their applications, they suggest that the applications of individuals from these groups should be denied. For example, the manual provides that for Korean and Chinese applicants, "Visas are rarely issued to these groups unless they have had previous visas and are older." The manual declares that they engage in "major fraud" that is "hard to check." Implicit in this passage is the strong suggestion that visas for Korean and Chinese applicants should be given only rarely.
Although the Government argues that these stereotypes are only used to determine which applicants should receive interviews, see Declaration of Marc Gorelick (July 23, 1997) at 10-11, the passages in the manual suggest that the stereotypes play a much greater role. Despite the fact that the generalizations and stereotypes based on race and national origin are not used to deny applications outright, their effects are still extremely pernicious. The statements in the manual inculcate visa officers to pre-judge certain groups solely on the basis of their nationality or physical appearance. The Consulate's policies instruct visa officers to view members of these groups as far more suspicious and dishonest than applicants of other races and nationalities. In effect, the manual places a heavy additional burden on applicants of particular nationalities and races that other individuals do not have to face. Based on generalized stereotypes about their behavior, Koreans, Chinese, and Arabs are singled out and stamped with the ignominious badge of "major fraud" before any facts about them are known.
The Government contends that the fraud profiles are necessary to prevent nonimmigrant visa fraud among groups likely to commit such fraud. The State Department claims that Chinese and Korean immigration fraud rings operating in Brazil are a major problem. In his Declaration in support of the Consulate's policies, Mr. Gorelick pointed out numerous instances and types of visa fraud in Brazil among Chinese, Koreans, and Arabs. See Declaration of Marc Gorelick (July 23, 1997). Although the Court understands the difficulty of the Consulate's task, greater efficiency is not a sufficient reason to justify the discrimination of people based upon their skin color or national origin. See, e.g., Chan v. I.N.S., 203 U.S. App. D.C. 396, 631 F.2d 978, 983-84 (D.C. Cir 1980) (denial of permanent residency to alien who overstayed nonimmigrant visa may not "rest on an impermissible basis such as an invidious discrimination against a particular race or group."). Patel v. I.N.S., 811 F.2d 377, 382 (7th Cir. 1987); United States v. Slocum, 464 F.2d 1180, 1184 (3d Cir. 1972) (profile used to identify possible airplane hijackers may "not discriminate against any group on the basis of religion, origin, political views, or race"). Whitfield v. Board of County Comm'rs of Eagle County, 837 F. Supp. 338, 344 (D.Colo. 1993) ("it is wholly inappropriate to define a class as suspects" on the basis of race).
The principle that government must not discriminate against particular individuals because of the color of their skin or the place of their birth means that the use of generalizations based on these factors is unfair and unjustified. In Abdullah v. I.N.S., 921 F. Supp. 1080, 1093-94 (S.D.N.Y. 1996), illegal Indian and Pakistani aliens sought temporary residence under the Special Agricultural Worker amnesty program. They alleged that the INS had impermissibly denied their applications for adjustment of status "on the basis of membership in ethnic groups predetermined to be suspected of fraud." 921 F. Supp. at 1083-84. In recommending denial of applications, INS officers provided explanations along the following lines:
The applicant fits the 'profile' of highly suspect applicants of Indian/Pakistani nationality all coming from the region of Punjab. Due to past experiences involving the above applicants . . ., we have reason to suspect that the documents presented by such applicants may have been obtained fraudulently. Id. at 1094, 1096.
In light of these explanations, the court found "that many of plaintiffs' applications were adjudicated by the [INS], in whole or in part, with reference to a profile based on their identity with a particular group." Id. at 1096. The court concluded: "Such adjudication violates our most basic principles and has no place in a process designed to afford an applicant a certain amount of individual consideration." Id. at 1096. "The use of a fraud profile on ethnicity unquestionably . . . deprive[s] applicants of the individualized determination . . . to which they are entitled." Id. at 1093-94.
The Court is aware of the State Department's difficult responsibilities in adjudicating visa applications under strict time constraints. However, the Court is confident that the State Department can dispatch its duties effectively without using generalizations based on national origin. This nation's officials once deemed it necessary to make the broad generalization that American citizens of Japanese origin were inherently suspect and likely to commit espionage. Recently, the United States recognized that this was a terrible error: "A grave injustice was done to American citizens and resident aliens of Japanese ancestry who, without individual review of any probative evidence against them, were excluded, removed and detained by the United States during World War II." Personal Justice Denied, Report of the Commission on Wartime Relocation and Internment of Civilians 18 (1982). Although this country has come quite far in stamping out discrimination in all its laws and policies, some vestiges still remain. In this case, the Consulate's visa policies stand in direct opposition to the progress this country has made in eliminating discrimination in the context of immigration law. Accordingly, the Court concludes that the Consulate's visa policies are in violation of law and that Plaintiff was more than reasonable in his protests of them.
2. Plaintiff's Job Performance
The Grievance Board's decision fails to address adequately the issue of the legality of the Consulate's policies in interpreting Plaintiff's job performance. Not only does the Board's decision fail to address this issue directly, it fails even to consider the reasonableness of Plaintiff's belief that the policies were illegal and the impact of Plaintiff's belief on his performance. The administrative record suggests that many of the complaints about Plaintiff's performance were indirectly, and sometimes directly, caused by Plaintiff's refusal to follow the Consulate's offensive policies. As evidence of this fact, the administrative record reveals numerous instances where Plaintiff's superiors, in instructing Plaintiff how he should improve his performance, told him to rely more heavily on the profiles. See A.R. 45, 681, 57. The administrative record indicates that Plaintiff's attitude toward the Consulate's policies was a major aspect of the problems identified in his job performance.
The law recognizes that government employees are not to follow orders blindly. Congress expressly gave government employees the right to refuse to follow orders requiring them to engage in illegal acts without fear of retaliation. Pursuant to 5 U.S.C. § 2302(b)(9)(D), an employee shall not be subject to personnel action "for refusing to obey an order that would require the individual to violate the law." With the complexity of our laws, the legality or illegality of certain orders is often an ambiguous issue. Ultimately, employees must exercise good judgment in determining whether an order requires them to violate the law. The law does not permit employees to second-guess every order or to sit as judges of the legality of government policies. Nevertheless, Congress contemplated that there would be certain instances when a government employee would be asked to violate the law, and Congress determined that government would function best if each employee exercised good judgment and respect for the law rather than follow orders blindly and thoughtlessly. These instances cannot be identified by a categorical formula; rather, they must be determined in a case-by-case manner.
In this case, Plaintiff faced the difficult tension of carrying out the responsibilities of his job while trying to avoid applying policies he rightly concluded were improper. The Court, understanding the complicated position in which Plaintiff found himself, instructs the Grievance Board to recognize his plight. It is interesting that when Plaintiff was performing his temporary assignment at the Porto Alegre Consulate, he acquitted himself in exemplary fashion. Plaintiff's job performance during his assignment in Porto Allegre received the following review:
Robert, in that classic Foreign Service cliche, "hit the ground running." He needed very little time to adjust to our procedures, and quickly became integrated. He went through the day's workload with dispatch, and to my eye appeared to apply consistency and good judgment to each visa case. A.R. 54.
The Court will grant Plaintiff's motion for summary judgment on Count I of his First Amended Complaint. The Court concludes that the Grievance Board's decision was arbitrary, capricious, and contrary to law within the meaning of 5 U.S.C. § 706(2)(A). The Board's decision rested upon its assumption of the legality of the Consulate's policies. This was in error. The Court also believes that because the Board did not properly consider the legality of the Consulate's policies, Plaintiff's other contentions have merit. These contentions include Plaintiff's claims: (1) that his 60-day trial period was improperly shortened; (2) that the Grievance Board erred in refusing to grant him a hearing; and (3) that the Board erred in concluding that the State Department's Director General was not required to provide Plaintiff with a statement of reasons for Plaintiff's termination. For these reasons, the Board's decision will be vacated and the matter remanded to it for further consideration in light of this Court's decision.
Because the Court's referral of this matter back to the Grievance Board has the potential of granting Plaintiff all appropriate relief, the Court will dismiss without prejudice the other counts in Plaintiff's complaint. Pending the action of the Grievance Board, the Court will retain jurisdiction of this matter to order such other and further relief as may be necessary.
An appropriate order accompanies this Memorandum Opinion.
United States District Judge
This matter is before the Court on Plaintiff's motion for summary judgment on Count I of his First Amended Complaint. For the reasons stated in the preceding Memorandum Opinion, the Court will grant Plaintiff's motion. Accordingly, it is hereby
ORDERED that Plaintiff's motion for summary judgment on Count I of his First Amended Complaint be GRANTED. It is further
ORDERED that the decision of the Grievance Board be VACATED. It is further
ORDERED that this matter be REMANDED to the Grievance Board for reconsideration in light of the Court's opinion. It is further
ORDERED that the Grievance Board shall make its decision within 60 days of this Memorandum Opinion. It is further
ORDERED that pending the Grievance Board's determination, the Court will hold in abeyance Plaintiff's request for reinstatement and back pay. It is further
ORDERED that the additional counts in Plaintiff's First Amended Complaint be DISMISSED without prejudice. The Court will retain jurisdiction of this matter to order such other and further relief as may be necessary.
United States District Judge