U.S. Invokes Visa Sanctions under Section 243(d) of the INA for the First Time in 15 Years

U.S. Invokes Visa Sanctions under Section 243(d) of the INA for the First Time in 15 Years

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U.S. Invokes Visa Sanctions under Section 243(d) of the
INA for the First Time in 15 Years
10/05/2016
The United States recently invoked “visa sanctions” under Section 243(d) of the Immigration and Nationality Act (INA)
against The Gambia for failing to accept the return of Gambian citizens and nationals removed from the United States.
Section 243(d) provides the authority for the United States to discontinue granting visas to citizens and nationals of
countries which deny or “unreasonably delay” the acceptance of their citizens or nationals who are ordered to be
removed from the United States. Pursuant to this authority, the United States has indicated that it would discontinue
granting visas to employees of the Gambian government and entities associated with the government, and their spouses
and children, with certain exceptions, effective October 1, 2016. This action, which comes in the wake of congressional
hearings regarding “recalcitrant countries,” marks the first time the Executive has exercised its authority under Section
243(d) since sanctions were imposed on Guyana in 2001, although the Executive has imposed certain “visa restrictions”
under other authority at more recent dates. Some have wondered whether the sanctions imposed on The Gambia are
consistent with the text of the INA.
Section 243(d) provides, in its entirety, that:
On being notified by the [Secretary of Homeland Security] 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
[Secretary of Homeland Security] 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 [Secretary of
Homeland Security] notifies the Secretary that the country has accepted the alien.
This text is not the subject of any regulatory interpretation by the Executive branch, nor do there appear to be any
judicial or administrative decisions construing the text.
Certain aspects of Section 243(d)’s meaning seem clear based on the “plain language” of the statute and the application
of generally applicable principles of statutory interpretation. Namely, the Department of Homeland Security (DHS)—
and not some other component of the Executive branch or the federal government—is tasked with determining whether
a foreign country has “denie[d] or unreasonably delay[ed]” accepting the return of one or more of its citizens or
nationals who were ordered to be removed from the United States. (Aliens can be removed from the United States on
various grounds set forth in Section 237 of the INA.) Once DHS makes such a determination, the Department of State
(DOS) would appear to be required to impose some form of visa sanctions upon the country because the statute provides
that the “Secretary of State shall order consular officers in that foreign country to discontinue granting . . . visas.” The
word “shall” is generally construed to indicate mandatory action. These visa sanctions apparently can consist of the
discontinuance of immigrant visas, nonimmigrant visas, or both, as the statute uses the disjunctive “or,” which is
ordinarily taken to mean that only one of the listed actions needs to be satisfied.
Other aspects of Section 243(d)’s meaning are less clear, however. In particular, questions have been raised about
whether the statutory references to “immigrant visas” and “nonimmigrant visas” mean that DOS must discontinue
granting all types of immigrant and/or nonimmigrant visas, or whether it may discontinue granting some types of

immigrant/nonimmigrant visas, but not others. For example, if DOS opts to discontinue granting nonimmigrant visas,
must it discontinue granting all A visas (diplomats or other foreign officials), B visas (visitors for business or pleasure),
C visas (aliens transiting the United States), D visas (crewmembers), E visas (treaty traders and investors), F visas
(foreign students), G visas (representatives of foreign governments working for international organizations), and H visas
(temporary workers), etc.? Or may it select only some of these types for discontinuance (e.g., As and Gs)?
Some have suggested that Section 243(d)’s reference to “immigrant visas or nonimmigrant visas” means that DOS may
determine whether to discontinue one or the other (or both) of these broad categories of visas, but once it has made that
choice, it must discontinue all types of immigrant and/or nonimmigrant visas, apparently on the theory that the statute
refers to immigrant/nonimmigrant visas collectively. The Executive, in contrast, has taken the view that it may
discontinue some—but not all—types of immigrant/nonimmigrant visas, as evidenced by its recent actions as to The
Gambia and its 2001 actions as to Guyana. In both cases, DOS discontinued only the issuance of specific types of
nonimmigrant visas, and not all nonimmigrant visas. DOS does not appear to have publicly articulated its rationale for
adopting this interpretation, beyond noting policy reasons for limiting the use of visa sanctions. However, an argument
could potentially be made that while Section 243(d) refers to immigrant/nonimmigrant visas in the plural, it does not
expressly require the discontinuance of all types of immigrant/nonimmigrant visas. Insofar as Section 243(d) may be
seen as ambiguous on this point, the DOS interpretation could potentially be seen as entitled to some degree of
deference. DOS could potentially also cite historical practice as supporting its interpretation, although courts have
generally been reluctant to find that Congress “acquiesced” to a particular interpretation of a statute by the Executive
based solely on the fact that Congress was aware of the Executive’s interpretation and did not act to amend the statute.
Posted at 10/05/2016 08:05 AM