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Updated May 14, 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 by
States.
DHS to be “recalcitrant,” also called “uncooperative.”
Any foreign national found to be inadmissible or deportable
Countries that demonstrate some but not full cooperation
under the grounds specified in the INA may be ordered
are considered “at risk of non-compliance” (ARON). ICE
removed. Those ordered removed may include unauthorized
currently classifies 10 countries as recalcitrant/
aliens (i.e., foreign nationals who enter without inspection,
uncooperative and 23 as 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. At Risk of Non-compliance (ARON), Recalcitrant, and Sanctioned Countries
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 May 6, 2019. Sanctions data come from
DHS press releases and email correspondence, current as of May 6, 2019.
https://crsreports.congress.gov
Immigration: “Recalcitrant” Countries and the Use of Visa Sanctions to Encourage Cooperation with Alien Removals
Past Use of Visa Sanctions
issuing travel documents to their nationals ordered
INA §243(d) provides that if the Secretary of Homeland
removed. As a result, DHS reported that it had been forced
Security notifies the Secretary of State that a country
to release into the United States 2,137 Guineans and 831
“denies or unreasonably delays accepting an alien who is a
Sierra Leoneans with final orders of removal, many with
citizen, subject, national, or resident of that country,” the
serious criminal convictions. DHS also reported that some
Secretary of State “shall order consular officers in that
700 Eritrean nationals and 1,900 Cambodian nationals with
foreign country to discontinue granting immigrant visas or
final orders of removal—some with serious criminal
nonimmigrant visas, or both.” The Secretary of State
convictions—were residing in the United States. Sanctions
determines which categories of visas and visa applicants
on Guinea were lifted on August 27, 2018, after the country
(typically tourist visas for a subset of government officials)
cooperated with repatriation requests from DHS.
will be covered by the suspension. Visa issuance resumes
DHS announced sanctions for two additional countries—
once the Secretary of Homeland Security notifies the
Burma and Laos—on July 9, 2018, citing their failure to
Secretary of State that the country has accepted its nationals
establish reliable processes for issuing travel documents
upon removal from the United States.
and the resulting requirement for ICE to release into the
This provision of law was enacted in 1952, and the United
United States some of their nationals, including some
States used it during the Cold War to restrict visa issuances
convicted of serious crimes. On January 31, 2019, DHS
to certain ex-Soviet bloc nationals. Between the end of the
announced 243(d) visa sanctions against Ghana; sanctions
Cold War and 2016, the designation was used once, against
against Pakistan were imposed on April 5, 2019. With the
Guyana in 2001. Citing the Supreme Court’s decision in
exception of Eritrea, all 243(d) sanctions have applied only
Zadvydas v. Davis, DOJ—which was then in charge of
to tourist/business visitor (B) visas for certain government
removal decisions—imposed visa sanctions to ensure
officials and, in some cases, their families and attendants.
removal of 113 criminally convicted Guyanese nationals
The U.S. Embassy in Eritrea has discontinued issuing B
then in U.S. custody whom DOJ had deemed dangerous.
visas to all residents of the country.
These sanctions followed numerous unsuccessful U.S.
Alternatives to Visa Sanctions
diplomatic attempts to effect their removal. Within two
Visa sanctions are not the only tool available to the U.S.
months, Guyana responded by issuing travel documents to
government to encourage cooperation with alien removals.
112 of these nationals and sanctions were lifted.
DHS and DOS work together to identify the most effective
This authority was not used again until October 2016, after
approach in each case, beginning with diplomatic efforts.
The Gambia resisted sustained pressure to cooperate with
They escalate to the use of sanctions when they determine
the repatriation of its nationals. (The discontinuation of visa
that doing so will be effective and that the benefit will
issuances to Gambian government officials and their
outweigh the potential negative impact on foreign policy
families lasted until December 2017.) The imposition of
interests. Some countries sharply restrict the foreign travel
sanctions came on the heels of a July 2016 House
of their citizens and may be unmoved by visa sanctions;
Committee on Oversight and Government Reform hearing
others may retaliate in ways detrimental to bilateral trade,
in which ICE and the Department of State (DOS) discussed
tourism, law enforcement, or other forms of cooperation. In
various measures used to persuade recalcitrant countries to
cases in which identity documents are not readily available
cooperate (see text box). Some Members from both parties
and the foreign country questions the nationality of
urged DHS and DOS to move beyond diplomacy and
individuals with removal orders, a “recalcitrant”
impose visa sanctions under INA §243(d) both to elicit
classification or visa sanctions may impede friendly
cooperation from a country, or countries, on which
bilateral relations.
sanctions are imposed and to serve as a deterrent to non-
cooperation by other countries. Some Members cited the
Measures to Address Recalcitrant Countries
case of Jean Jacques, a Haitian who committed a murder in
Issue a demarche (i.e., a formal diplomatic request)
Connecticut in 2015 following his release from prison after
Hold a joint meeting with the ambassador to the United
a second degree murder conviction. Despite repeated
States, DOS, and ICE
attempts, DHS had been unable to repatriate Jacques due to
Haiti’s refusal to issue travel documents.
Provide notice of the U.S. government’s intent to
Use of Visa Sanctions by the
exercise visa sanctions to gain compliance
Trump Administration
Impose visa sanctions
Shortly after taking office, President Donald Trump issued
Call for inter-agency meetings to pursue withholding of
Executive Order 13768, “Enhancing Public Safety in the
aid or other funding
Interior of the United States.” Section 12 of the order, titled
“Recalcitrant Countries,” directs DHS and DOS to
“effectively implement” the sanctions provided by INA
DHS and DOS report success in achieving cooperation
without resorting to visa sanctions, resulting in countries
§243(d). It also requires the Secretary of State to “ensure
being removed from the recalcitrant or ARON lists. In July
that diplomatic efforts and negotiations with foreign states
2016, there were 23 recalcitrant and 62 ARON countries; as
include as a condition precedent the acceptance by those
of May 2019, those numbers had dropped to 10 recalcitrant
foreign states of their nationals who are subject to removal
from the United States.”
and 23 ARON countries, a reduction that DHS and DOS
attribute to pressure and diplomacy.
In September 2017, DHS imposed visa sanctions under
INA §243(d) on four countries: Cambodia, Eritrea, Guinea,
Jill H. Wilson, Analyst in Immigration Policy
and Sierra Leone. In a press release, DHS maintained that
these countries had failed to establish reliable processes for
IF11025
https://crsreports.congress.gov
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 4 · UPDATED