Posted: 3:25 am ET
We previously blogged about visa sanctions in early 2017 for countries who refused to accept their deported nationals (see On Invocation of Visa Sanctions For Countries Unwilling to Accept Their Deported Nationals. Also read @StateDept Notifies Foreign Countries of New Information Sharing Standards Required For U.S. Travel.
Note that the Trump Executive Order: Enhancing Public Safety in the Interior of the United States include section 12 on countries who refused to accepted their nationals who are subject to removal by the United States:
Sec. 12. Recalcitrant Countries. The Secretary of Homeland Security and the Secretary of State shall cooperate to effectively implement the sanctions provided by section 243(d) of the INA (8 U.S.C. 1253(d)), as appropriate. The Secretary of State shall, to the maximum extent permitted by law, ensure that diplomatic efforts and negotiations with foreign states include as a condition precedent the acceptance by those foreign states of their nationals who are subject to removal from the United States.
The Washington Times reported yesterday that the Trump administration has now triggered visa sanctions against four countries that have refused to take back citizens the U.S. is trying to deport. The State Department confirmed the move according to the reporter but declined to name the specific countries. The Washington Times citing “sources who tracked the deliberations in recent weeks” said that the four countries are Cambodia, Eritrea, Guinea and Sierra Leone.
Per 9 FAM. only one country, The Gambia, is currently subject to discontinuation of visa issuance under INA 243(d). With these additional four countries, this could be the start of utilizing visa sanctions to force countries to accept their deported nationals. There are potentially 85 countries that could be subject to a visa sanction based on their refusal or lack or cooperation in accepting their own nationals deported from the United States.
According to DHS, as of May 2, 2016, ICE has found that there were 23 countries considered recalcitrant, including: Afghanistan, Algeria, the People’s Republic of China, Cuba, Iran, Iraq, Libya, Somalia, and Zimbabwe. DHS does not appear to have an updated public list or a full list online. In a July 2016 testimony, DHS also told Congress that within the last two fiscal years ICE has worked with the State Department to issue 17 Demarches to the following recalcitrant countries: Iraq, Algeria, Bangladesh, Cape Verde, Ivory Coast, Eritrea, The Gambia, Ghana, Guinea, Liberia, Mali, Mauritania, Niger, Sierra Leone, Senegal, Cuba and St. Lucia.
DHS noted in 2016 that ICE was closely monitoring an additional 62 countries with strained cooperation, but which were not deemed recalcitrant.
We expect that the State Department will make a formal statement as it updates its guidance to its consular officials. The FAM guidance also says that a Public Notice of Discontinuation of Visa Issuance may be provided by flyers posted in the consular section and/or on the post’s website:
“During the period of discontinuation, posts should continue receiving and adjudicating cases; however, posts should explain the discontinuation of visas to all applicants covered by the order. The explanation should note that visas cannot generally be issued for certain visa classifications or categories of applicants as determined by the Secretary’s order, and explain that visa fees will not be refunded, but that the cases will be reviewed again once visa issuance resumes. The notification may be provided by flyers posted in the consular section and/or on the post’s website.”
Note that INA 243(d) discontinuation of visa issuance pertains to the actual issuance, not to adjudication. That means consular sections will continue to charge visa fees, will continue to adjudicate visa applications, but they will suspend issuance of visas to qualified applicants. And there will be no refunds. That sounds like a recipe for a PR disaster.