Recalcitrant countries and possible diplomatic riffs

Much has been written about the executive orders that President Trump signed last week. Missing from those discussions has been acknowledgment of the potential diplomatic fray President Trump seems willing to bring on by threatening immigrant and nonimmigrant visas to countries that don’t take back United States deportees as quickly as we would like.

Section 12 of the executive order titled “Enhancing Public Safety in the Interior of the United States” provides, in full:

The Secretary of Homeland Security and the Secretary of State shall cooperate to effectively implement the sanctions provided by section 243(d) of the INA (8 U.S.C. 1253(d)), as appropriate.  The Secretary of State shall, to the maximum extent permitted by law, ensure that diplomatic efforts and negotiations with foreign states include as a condition precedent the acceptance by those foreign states of their nationals who are subject to removal from the United States.

In turn, INA § 243(d) provides:

On being notified by the Attorney General that the government of a foreign country denies or unreasonably delays accepting an alien who is a citizen, subject, national, or resident of that country after the Attorney General asks whether the government will accept the alien under this section, the Secretary of State shall order consular officers in that foreign country to discontinue granting immigrant visas or nonimmigrant visas, or both, to citizens, subjects, nationals, and residents of that country until the Attorney General notifies the Secretary that the country has accepted the alien.

Section 243(d) requires the Department of State to stop issuing visas to citizens of countries that “unreasonably delay” repatriating people the United States wants to remove. The executive order instructs DHS and State to implement 243(d). If read at the terms’ broadest, President Trump seems to be ordering the United States to shut down visas for citizens of countries deemed “recalcitrant” on taking back their citizens.

Though I haven’t been able to obtain a clear-cut list of which countries the federal government considers recalcitrant, official statements made in 2016 indicate that, at that time, 23 countries fit the bill. According to testimony by a high-ranking State Department official before the House Committee on Oversight and Government Reform in July 2016, “at the top of the current ICE list of recalcitrant countries” were Cuba, China, Somalia, and India. At the same hearing, an ICE official also referenced 23 recalcitrant countries, including Afghanistan, Algeria, China, Cuba, Iran, Iraq, Libya, Somalia, and Zimbabwe. Expanding on this list, ICE Director Sarah Saldaña told the Senate Judiciary Committee that, as of January 2016, the list of recalcitrant countries consisted of Afghanistan, Algeria, Burundi, Cape Verde, China, Cuba, Eritrea, Gambia, Ghana, Guinea, India, Iran, Iraq, Ivory Coast, Liberia, Libya, Mali, Mauritania, Morocco, Sierra Leone, Somalia, South Sudan, and Zimbabwe.

Only one of these countries, Gambia, has actually seen some visa cut-offs pursuant to INA § 243(d). In October 2016, the State Department stopped issuing visas to Gambian officials and their relatives. According to the Congressional Research Service, this was the first time that the United States invoked § 243(d) since 2001 when the federal government targeted the South American nation of Guyana.

Clearly there is a major difference between targeting Gambia and targeting China or India. As Assistant Secretary for Consular Affairs Michelle Thoren Bond told members of the House of Representatives, “Sanctioned countries…could retaliate in ways detrimental to wider U.S. economic or security concerns….” That is of minimal concern with Gambia, but substantial concern with China or India.

To be sure, the State Department has developed a detailed protocol to pressure countries to cooperate with United States repatriation efforts that fall short of imposing sanctions under § 243(d). In recent years, the United States appears to have utilized that protocol in several instances to avoid cutting off visa processing. For example, in April 2015 Secretary of Homeland Security Jeh Johnson raised United States repatriation concerns with Chinese counterparts resulting in an agreement to repatriate Chinese citizens with final orders of removal.

Moreover, when, in the past, the United States has decided to cut off visas, it has only targeted select types of visas. It has not stopped processing all immigrant visas or even all non-immigrant visas. As with Gambia, it has instead focused on a rather select group of visas. Whether this is the correct reading of § 243(d)’s strongly-worded command is unclear. As the Congressional Research Service explains, another interpretation of § 243(d) is that “once it [the State Department] has made that choice, it must discontinue all types of immigrant and/or nonimmigrant visas….”

President Trump’s executive order instruction regarding § 243(d) leaves some question as to how he envisions DHS and the State Department utilize the visa cut-off powers. Both the executive order and § 243(d) use the word “shall” suggesting that President Trump imagines robust application. Admittedly, the executive order mandate is qualified with the words “as appropriate” so perhaps President Trump envisions a more nuanced application of § 243(d) authority akin to existing protocol. If that’s the case, then including the reference to § 243(d) in the executive order suggests either that Trump Administration officials are signaling to their supporters that the new president is willing to engage in diplomatic strutting or that they don’t know that there already exists a nuanced protocol for implementing § 243(d). Given what I have seen in the administration’s first few days, either is entirely possible.

The Administration may, however, want State and DHS to take a more hardline approach consistent with statements by influential Republican legislators in recent years. In 2016, Utah’s Representative Jason Chaffetz told the State Department’s Michele Bond: “If it was up to me, yeah, you’d say no more visas, no more people coming to the United States….Your hand would be strengthened in your negotiations around the world if you would do it every once in awhile….This is the law and I don’t see you doing it in any country.” Similarly, Senator Charles Grassley (Iowa) wrote to Secretary Johnson in June 2016 complaining about the Obama Administration’s limited use of § 243(d), explaining, “Lives are being lost, the public safety is at risk, and American families are suffering. It cannot continue.” Strong words that certainly suggest the possibility that Trump Administration officials will depart from history and protocol. It wouldn’t be the first time.

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Update: Since the January 2017 executive order, the Trump administration has invoked § 243(d) to discontinue visa applications on multiple occasions.

In September 2017, the administration discontinued visa application processing for certain officials of the government’s of Cambodia, Guinea, and Sierra Leone. Simultaneously, it discontinued process of visas for all citizens of Eritrea. Only applications for short-term non-immigrant visas for temporary business or pleasure reasons (B visas) were affected.

In July 2018, the administration targeted Burma and Laos by discontinuing processing of a small number of non-immigrant visas for certain government officials.

As of September 2018, the U.S. government recognized nine countries as recalcitrant: Burma, Cambodia, China, Cuba, Eritrea, Hong Kong, Iran, Laos, and Vietnam. Another twenty-four are designated as “at-risk of non-compliance.”

On April 22, 2019, the State Department published two final regulations detailing a process by which consular officers stationed at U.S. embassies should discontinue visa processing pursuant to 243(d). One regulation applies to non-immigrant visas and the other to immigrant visas. Both require a separate directive from the Secretary of State or a designee.