link to page 1



Updated January 23, 2020
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 January 23, 2020.

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, which
Cold War and 2016, the designation was used once, against
were lifted on January 17, 2020; sanctions against Pakistan
Guyana in 2001. Citing the Supreme Court’s decision in
were imposed on April 5, 2019. With the exception of
Zadvydas v. Davis, DOJ—which was then in charge of
Eritrea, all 243(d) sanctions have applied only to
removal decisions—imposed visa sanctions to ensure
tourist/business visitor (B) visas for certain government
removal of 113 criminally convicted Guyanese nationals
officials and, in some cases, their families and attendants.
then in U.S. custody whom DOJ had deemed dangerous.
The U.S. Embassy in Eritrea has discontinued issuing B
These sanctions followed numerous unsuccessful U.S.
visas to all residents of the country.
diplomatic attempts to effect their removal. Within two
Alternatives to Visa Sanctions
months, Guyana responded by issuing travel documents to
Visa sanctions are not the only tool available to the U.S.
112 of these nationals and sanctions were lifted.
government to encourage cooperation with alien removals.
This authority was not used again until October 2016, after
DHS and DOS work together to identify the most effective
The Gambia resisted sustained pressure to cooperate with
approach in each case, beginning with diplomatic efforts.
the repatriation of its nationals. (The discontinuation of visa
They escalate to the use of sanctions when they determine
issuances to Gambian government officials and their
that doing so will be effective and that the benefit will
families lasted until December 2017.) The imposition of
outweigh the potential negative impact on foreign policy
sanctions came on the heels of a July 2016 House
interests. Some countries sharply restrict the foreign travel
Committee on Oversight and Government Reform hearing
of their citizens and may be unmoved by visa sanctions;
in which ICE and the Department of State (DOS) discussed
others may retaliate in ways detrimental to bilateral trade,
various measures used to persuade recalcitrant countries to
tourism, law enforcement, or other forms of cooperation. In
cooperate (see text box). Some Members from both parties
cases in which identity documents are not readily available
urged DHS and DOS to move beyond diplomacy and
and the foreign country questions the nationality of
impose visa sanctions under INA §243(d) both to elicit
individuals with removal orders, a “recalcitrant”
cooperation from a country, or countries, on which
classification or visa sanctions may impede friendly
sanctions are imposed and to serve as a deterrent to non-
bilateral relations.
cooperation by other countries. Some Members cited the
case of Jean Jacques, a Haitian who committed a murder in
Measures to Address Recalcitrant Countries
Connecticut in 2015 following his release from prison after

Issue a demarche (i.e., a formal diplomatic request)
a second degree murder conviction. Despite repeated

Hold a joint meeting with the ambassador to the United
attempts, DHS had been unable to repatriate Jacques due to
States, DOS, and ICE
Haiti’s refusal to issue travel documents.
Use of Visa Sanctions by the

Provide notice of the U.S. government’s intent to
Trump Administration
exercise visa sanctions to gain compliance

Impose visa sanctions
Shortly after taking office, President Donald Trump issued
Executive Order 13768, “Enhancing Public Safety in the

Call for inter-agency meetings to pursue withholding of
Interior of the United States.” Section 12 of the order, titled
aid or other funding
“Recalcitrant Countries,” directs DHS and DOS to
“effectively implement” the sanctions provided by INA
DHS and DOS report success in achieving cooperation
§243(d). It also requires the Secretary of State to “ensure
without resorting to visa sanctions, resulting in countries
that diplomatic efforts and negotiations with foreign states
being removed from the recalcitrant or ARON lists. In July
include as a condition precedent the acceptance by those
2016, there were 23 recalcitrant and 62 ARON countries; as
foreign states of their nationals who are subject to removal
of May 2019, those numbers had dropped to 10 recalcitrant
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
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to
congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress.
Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has
been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the
United States Government, are not subject to copyright protection in the United States. Any CRS Report may be
reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include
copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you
wish to copy or otherwise use copyrighted material.

https://crsreports.congress.gov | IF11025 · VERSION 5 · UPDATED