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Visa Sanctions Against Two Countries Pursuant to Section 243(d) of the Immigration and Nationality Act

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Repatriation of Aliens Subject to Final Orders of Removal

U.S. Immigration and Customs Enforcement (ICE) works to timely remove illegal aliens from the United States once they are subject to a final order of removal. The removal of aliens subject to final orders of removal is a national security priority for the United States, highlighted by Presidential Executive Order No. 13,768, Enhancing Public Safety in the Interior of the United States, issued on January 25, 2017.

The U.S. Government requests that foreign governments take appropriate steps to confirm the citizenship of aliens suspected to be their nationals, including by conducting interviews where necessary; the timely issuance of travel documents, where appropriate; and accepting the physical return of their nationals by scheduled commercial flights or, where necessary, special charter flights. Any lack of cooperation from the nation of origin delays, and in many cases, inhibits the removal process. Such uncooperative countries are also known as recalcitrant.

Recalcitrant Countries

Factors that could lead to a country being classified as recalcitrant include: hindering ICE’s removal efforts by refusing to allow charter removal flights into the country, and denials or delays in issuing travel documents, such as passports.

Zadvydas v. Davis

The failure of foreign governments to accept the return of their nationals has resulted in unnecessary detention costs and has required the release of dangerous criminal aliens into the general population. Uncooperative countries significantly exacerbate the challenges presented to ICE by the U.S. Supreme Court’s decision in Zadvydas v. Davis, 533 U.S. 678 (2001):

  • After Zadvydas, with narrow exceptions, aliens with final orders of removal, including aliens determined to pose a threat to the community or considered a flight risk, may not be detained beyond a presumptively reasonable period of 6 months if there is no “significant likelihood of removal in the reasonably foreseeable future.”
  • Due to delays in travel document issuance or refusals by foreign governments to issue travel documents for the repatriation of their nationals, ICE has been legally required to release thousands of aliens, including those with serious criminal convictions.

Visa Sanctions

Pursuant to her authority under Section 243(d) of the Immigration and Nationality Act (INA), Secretary of Homeland Security Kirstjen Nielsen notified Secretary of State Michael Pompeo that the governments of Burma and Laos have denied or unreasonably delayed accepting their nationals ordered removed from the United States. As a result, Secretary of State Pompeo has ordered consular officers in these countries to discontinue granting visas. These sanctions will remain in place on each of these respective countries until the Secretary of Homeland Security notifies Secretary Pompeo that cooperation on removals has improved to an acceptable level.

Visa sanctions have been used three times before: Guyana in 2001, The Gambia in 2016, and Cambodia, Eritrea, Guinea, and Sierra Leone in 2017.

Last Reviewed/Updated: 07/10/2018