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Updated February 1, 2019
Immigration: “Recalcitrant” Countries and the Use of Visa
Sanctions to Encourage Cooperation with Alien Removals
The ability to repatriate foreign nationals (aliens) who
Recalcitrant Countries
violate U.S. immigration law is central to the immigration
According to DHS’s Immigration and Customs
enforcement system. The Immigration and Nationality Act
Enforcement (ICE), most countries adhere to their
(INA) provides broad authority to the Department of
international obligations to accept the timely return of their
Homeland Security (DHS) and the Department of Justice
citizens. Countries that systematically refuse or delay the
(DOJ) to remove certain foreign nationals from the United
repatriation of their citizens, however, are considered to be
States.
“recalcitrant,” also called “uncooperative.” Countries that
Any foreign national found to be inadmissible or deportable
demonstrate some but not full cooperation are considered
under the grounds specified in the INA may be ordered
“at risk of non-compliance” (ARON). As of September 8,
removed. Those ordered removed may include unauthorized
2018, ICE designated 9 countries as recalcitrant and 24 as
aliens (i.e., foreign nationals who enter without inspection,
ARON (Figure 1).
enter with fraudulent documents, or enter legally but
Countries are ranked on a scale ranging from uncooperative
overstay their temporary visas). Lawfully present foreign
to cooperative, based on statistical data and expert analytic
nationals who commit crimes or certain other acts may also
feedback on a range of assessment factors. These factors
be subject to removal. To effectuate a removal, the alien’s
include a refusal to accept charter flight-based removals,
country of citizenship must confirm the alien’s nationality,
the ratio of releases to removals, and average length of time
issue travel documents, and accept his or her physical return
between issuance of a removal order and removal. ICE also
by commercial flight or, where necessary, charter flight.
takes into account mitigating factors, such as a natural or
A 2001 Supreme Court ruling, Zadvydas v. Davis, generally
man-made disaster or limited capacity (e.g., regarding law
limits the government’s authority to indefinitely detain
enforcement, inadequate records, and/or inefficient
aliens who have been ordered removed. As a result,
bureaucracy), to assess whether a country is intentionally
detained aliens subject to removal orders but for whom
uncooperative or incapable due to country conditions. Some
there is “no significant likelihood of removal in the
countries disagree with ICE’s assessments, maintaining that
reasonably foreseeable future,” must be released into the
the United States has not adequately demonstrated that the
United States after six months, with limited exceptions.
persons ordered removed are indeed their nationals.
Figure 1. Cooperation Level by Country
Source: Map created by CRS using data from Esri Data and Maps, 2017. Boundary representation is not necessarily authoritative.
ARON/recalcitrant data provided by DHS’s Immigration and Customs Enforcement (ICE), current as of September 8, 2018. Sanctions data
come from DHS press releases, current as of January 31, 2019.
Note: Sierra Leone was previously rated as ARON and is currently rated as cooperative. Sanctions remain until the country demonstrates a
sustained, repeatable process for the repatriation of its nationals.
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Immigration: “Recalcitrant” Countries and the Use of Visa Sanctions to Encourage Cooperation with Alien Removals
Past Use of Visa Sanctions
Sierra Leone; in the case of Eritrea, they applied to all
INA §243(d) provides that if the Secretary of Homeland
citizens. In a press release, DHS maintained that these
Security notifies the Secretary of State that a country
countries had failed to establish reliable processes for
“denies or unreasonably delays accepting an alien who is a
issuing travel documents to their nationals ordered
citizen, subject, national, or resident of that country,” the
removed. As a result, DHS reported that it had been forced
Secretary of State “shall order consular officers in that
to release into the United States 2,137 Guineans and 831
foreign country to discontinue granting immigrant visas or
Sierra Leoneans with final orders of removal, many with
nonimmigrant visas, or both.” The Secretary of State is to
serious criminal convictions. DHS also reported that some
determine which categories of visas and visa applicants
700 Eritrean nationals and 1,900 Cambodian nationals with
(typically a subset of government officials) will be covered
final orders of removal—some with serious criminal
by the suspension. Visa issuance is to resume once the
convictions—were residing in the United States. Sanctions
Secretary of Homeland Security notifies the Secretary of
on Guinea were lifted on August 27, 2018, after the country
State that the country has accepted its nationals upon
cooperated with repatriation requests from DHS.
removal from the United States.
DHS announced sanctions for two additional countries—
This provision of law was enacted in 1952, and the United
Burma and Laos—on July 9, 2018, citing their failure to
States used it during the Cold War to restrict visa issuances
establish reliable processes for issuing travel documents
to certain ex-Soviet bloc nationals. Between the end of the
and the resulting requirement for ICE to release into the
Cold War and 2016, the designation was used once, against
United States some of their nationals, including some
Guyana in 2001. Citing the Supreme Court’s decision in
convicted of serious crimes. On January 31, 2019, DHS
Zadvydas v. Davis, DOJ—which was then in charge of
announced 243(d) visa sanctions against Ghana for failing
removal decisions—imposed visa sanctions to ensure
to cooperate with removals.
removal of 113 criminally convicted Guyanese nationals
Alternatives to Visa Sanctions
then in U.S. custody whom DOJ had deemed dangerous.
Visa sanctions are not the only tool available to the U.S.
These sanctions followed numerous unsuccessful U.S.
government to encourage cooperation with alien removals.
diplomatic attempts to effect their removal. Within two
DHS and DOS work together to identify the most effective
months, Guyana responded by issuing travel documents to
approach in each case, beginning with diplomatic efforts.
112 of these nationals and sanctions were lifted.
They escalate to the use of sanctions when they determine
This authority was not used again until October 2016, after
that doing so will be effective and that the benefit will
The Gambia resisted sustained pressure to cooperate with
outweigh the potential negative impact on foreign policy
the repatriation of its nationals. (The discontinuation of visa
interests. Some countries sharply restrict the foreign travel
issuances to Gambian government officials and their
of their citizens and may be unmoved by visa sanctions;
families lasted until December 2017.) The imposition of
others may retaliate in ways detrimental to bilateral trade,
sanctions came on the heels of a July 2016 House
tourism, law enforcement, or other forms of cooperation. In
Committee on Oversight and Government Reform hearing
cases in which identity documents are not readily available
in which ICE and the Department of State (DOS) discussed
and the foreign country questions the nationality of
various measures used to persuade recalcitrant countries to
individuals with removal orders, a “recalcitrant”
cooperate (see text box). Members from both parties urged
classification or visa sanctions may impede friendly
DHS and DOS to move beyond diplomacy and impose visa
bilateral relations.
sanctions under INA §243(d) both to elicit cooperation
from a country, or countries, on which sanctions are
Measures to Address Recalcitrant Countries
imposed and to serve as a deterrent to non-cooperation by
Issue a demarche (i.e., a formal diplomatic request)
other countries. Members cited the case of Jean Jacques, a
Hold a joint meeting with the ambassador to the United
Haitian who committed a murder in Connecticut in 2015
States, DOS, and ICE
following his release from prison after a second degree
murder conviction. Despite repeated attempts, DHS had
Provide notice of the U.S. government’s intent to
been unable to repatriate Jacques due to Haiti’s refusal to
exercise visa sanctions to gain compliance
issue travel documents.
Impose visa sanctions
Use of Visa Sanctions by the
Trump Administration
Call for inter-agency meetings to pursue withholding of
aid or other funding
Shortly after taking office, President Donald Trump issued
Executive Order 13768, “Enhancing Public Safety in the
DHS and DOS report success in achieving cooperation
Interior of the United States.” Section 12 of the order, titled
“Recalcitrant Countries
without resorting to visa sanctions, resulting in countries
,” directs DHS and DOS to
“effectively implement” the sanctions provided by INA
being removed from the recalcitrant or ARON lists. In July
2016, there were 23 recalcitrant and 62 ARON countries; as
§243(d). It also requires the Secretary of State to “ensure
of September 2018, those numbers had dropped to 9
that diplomatic efforts and negotiations with foreign states
recalcitrant and 24 ARON countries, a reduction that DHS
include as a condition precedent the acceptance by those
and DOS attribute to pressure and diplomacy.
foreign states of their nationals who are subject to removal
from the United States.”
Jill H. Wilson, Analyst in Immigration Policy
In September 2017, DHS imposed visa sanctions under
INA §243(d) on four countries: Cambodia, Eritrea, Guinea,
IF11025
and Sierra Leone. The visa restrictions were applied against
certain government officials from Cambodia, Guinea, and
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Immigration: “Recalcitrant” Countries and the Use of Visa Sanctions to Encourage Cooperation with Alien Removals
Disclaimer
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https://crsreports.congress.gov | IF11025 · VERSION 3 · UPDATED