Immigration: “Recalcitrant” Countries and the Use of Visa Sanctions to Encourage Cooperation with Alien Removals

Immigration: “Recalcitrant” Countries and the Use of Visa Sanctions to Encourage Cooperation with Alien Removals

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Updated July 10, 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 13 countries as recalcitrant/
aliens (i.e., foreign nationals who enter without inspection,
uncooperative and 17 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 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, generaly
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 June 3, 2020. Sanctions data come from
publical y available sources including DHS press releases, U.S. embassy websites, and the Federal Register, current as of July 10, 2020.
https://crsreports.congress.gov

Immigration: “Recalcitrant” Countries and the Use of Visa Sanctions to Encourage Cooperation w ith Alien Removals
Past Use of Visa Sanctions
into the United States 2,137 Guineans and 831 Sierra
INA §243(d) provides that if the Secretary of Homeland
Leoneans with final orders of removal, many with serious
Security notifies the Secretary of State that a country
criminal convictions. DHS also reported that some 700
“denies or unreasonably delays accepting an alien who is a
Eritrean nationals and 1,900 Cambodian nationals with final
citizen, subject, national, or resident of that country,” the
orders of removal—some with serious criminal
Secretary of State “shall order consular officers in that
convictions—were residing in the United States. Sanctions
foreign country to discontinue granting immigrant visas or
on Guinea were lifted on August 27, 2018 after the country
nonimmigrant visas, or both.” The Secretary of State
cooperated with repatriation requests from DHS.
determines which categories of visas and visa applicants
DHS announced sanctions for two additional countries—
will be covered by the suspension. Visa issuance resumes
Burma and Laos —on July 9, 2018, citing their failure to
once the Secretary of Homeland Security notifies the
establish reliable processes for issuing travel documents
Secretary of State that the country has accepted its nationals
and the resulting requirement for ICE to release into the
upon removal from the United States.
United States some of their nationals, including some
This provision of law was enacted in 1952, and the United
convicted of serious crimes. On January 31, 2019, DHS
States used it during the Cold War to restrict visa issuances
announced 243(d) visa sanctions against Ghana, which
to certain ex-Soviet bloc nationals. Between the end of the
were lifted on January 17, 2020; sanctions against Pakistan
Cold War and 2016, the designation was used once, against
were imposed on April 5, 2019. On June 12, 2020,
Guyana in 2001. Citing the Supreme Court’s decision in
sanctions were imposed on Burundi. With the exception of
Zadvydas v. Davis, DOJ—which was then in charge of
Eritrea, Laos, and Burundi, all 243(d) sanctions apply only
removal decisions—imposed visa sanctions to ensure
to tourist/business visitor (B) visas for certain government
removal of 113 criminally convicted Guyanese nationals
officials and, in some cases, their families and attendants. A
then in U.S. custody whom DOJ had deemed dangerous.
broader set of visa categories and applicants are covered by
These sanctions followed numerous unsuccessful U.S.
the sanctions imposed on Eritrea, Laos, and Burundi.
diplomatic attempts to effect their removal. Within two
Alternatives to Visa Sanctions
months, Guyana responded by issuing travel documents to
112 of these nationals and sanctions were lifted.
Visa sanctions are not the only tool available to the U.S.
government to encourage cooperation with alien removals .
This authority was not used again until 2016, after The
DHS and DOS work together to identify the most effective
Gambia resisted sustained pressure to cooperate with the
approach in each case, beginning with diplomatic efforts.
repatriation of its nationals. This imposition of sanctions
They escalate to the use of sanctions when they determine
came on the heels of a July 2016 House Committee on
that doing so will be effective and that the benefit will
Oversight and Government Reform hearing in which ICE
outweigh the potential negative impact on foreign policy
and the Department of State (DOS) discussed various
interests. Some countries sharply restrict the foreign travel
measures used to persuade recalcitrant countries to
of their citizens and may be unmoved by visa sanctions;
cooperate (see text box). Some Members from both parties
others may retaliate in ways detrimental to bilateral trade,
urged DHS and DOS to move beyond diplomacy and
tourism, law enforcement, or other forms of cooperation. In
impose visa sanctions under INA §243(d) both to elicit
cases in which identity documents are not readily available
cooperation from a country, or countries, on which
and the foreign country questions the nationality of
sanctions are imposed and to serve as a deterrent to non-
individuals with removal orders, a “recalcitrant”
cooperation by other countries. Some Members cited the
classification or visa sanctions may impede friendly
case of Jean Jacques, a Haitian who committed a murder in
bilateral relations.
Connecticut in 2015 following his release from prison after
a second degree murder conviction. Despite repeated
Measures to Address Recalcitrant Countries
attempts, DHS had been unable to repatriate Jacques due to
Haiti’s refusal

to issue travel documents.

Issue a demarche (i.e., a formal diplomatic request)

Use of Visa Sanctions by the

Hold a joint meeting with the ambassador to the United
States, DOS, and ICE
Trump Administration

Provide notice of the U.S. government’s intent to
Shortly after taking office, President Donald Trump issued
exercise visa sanctions to gain compliance
Executive Order 13768, “Enhancing Public Safety in the

Impose visa sanctions
Interior of the United States.” Section 12 of the order, titled
“Recalcitrant Countries

,” directs DHS and DOS to

Cal for inter-agency meetings to pursue withholding of
“effectively implement” the sanctions provided by INA
aid or other funding
§243(d). It also requires the Secretary of State to “ensure
that diplomatic efforts and negotiations with foreign states
DHS and DOS have reported success in achieving
include as a condition precedent the acceptance by those
cooperation without resorting to visa sanctions, resulting in
foreign states of their nationals who are subject to removal
countries being removed from the recalcitrant or ARON
from the United States.”
lists. In July 2016, there were 23 recalcitrant and 62 ARON
countries; as of June 2020, those numbers had dropped to
In September 2017, DOS imposed visa sanctions under
13 recalcitrant and 17 ARON countries, a reduction that
INA §243(d) on four countries: Cambodia, Eritrea, Guinea,
DHS and DOS attribute to pressure and diplomacy.
and Sierra Leone. In a press release, DHS maintained that
these countries had failed to establish reliable processes for
Jill H. Wilson, Analyst in Immigration Policy
issuing travel documents to their nationals ordered
removed. DHS reported that it had been forced to release
IF11025
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Immigration: “Recalcitrant” Countries and the Use of Visa Sanctions to Encourage Cooperation w ith Alien Removals

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https://crsreports.congress.gov | IF11025 · VERSION 7 · UPDATED