On Invocation of Visa Sanctions For Countries Unwilling to Accept Their Deported Nationals

Posted: 3:27 am ET

 

On January 3, the State Department published 9 FAM 602.2 on the Discontinuation of Visa Issuance Under INA 243 (D) which provides that “upon being notified by the Secretary of Homeland Security that a government of a foreign country denies or unreasonably delays accepting an alien who is a citizen, subject, national, or resident of that country, 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 of State that the country has accepted the alien.”

–> A discontinuation of visa issuance under INA 243(d) is based on an order issued by the Secretary of State to consular officers in a particular country to stop issuing visas pursuant to INA 243(d).  The Secretary may decide to order consular officers to discontinue issuing all visas in the country or a subset of visas.

–> Affected posts generally will be informed by cable which visa classifications or categories of visa applicants are subject to a discontinuation under INA 243(d) and when visa issuance must be discontinued.  When the Secretary orders discontinuation of visa issuance, the Visa Office will work with the relevant regional bureau and the affected post to provide specific guidance via cable.

Only one country, The Gambia, is currently subject to discontinuation of visa issuance under INA 243(d) though this might just be the start. There are potentially 85 countries that could be subject to a visa sanction based on their refusal in accepting their own nationals deported from the United States.  The FAM, at this time, does not include any guidance pertaining to immigrant visas.

In October last year, the State Department spokesperson said this about the visa sanction for The Gambia in the DPB:

As of October 1st, 2016, the United States and Banjul, The Gambia, has discontinued visa issuance to employees of the Gambian government, employees of certain entities associated with the government, and their spouses and children, with limited exceptions. Under Section 243(d) of the Immigration and Nationality Act, when so requested by the Secretary of Homeland Security due to a particular country’s refusal to accept or unreasonably delay the return of its nationals, the Secretary of State must order consular officers to suspend issuing visas until informed by the Secretary of Homeland Security that the offending country has accepted those individuals.
[…] The Gambia is unique in that we have applied numerous tools on how to engage, but without any result. Some other countries have responded in some way or made partial efforts to address the deficiency; The Gambia has not. We have been seeking cooperation with the Government of The Gambia on the return of Gambian nationals for some time, from the working level up to the highest level, and we have exhausted diplomatic means to resolve this matter.

Last year, ICE Deputy Director Daniel Ragsdale also went before the House Committee on Oversight and Government Reform for a hearing on “Recalcitrant Countries: Denying Visas to Countries that Refuse to Take Back Their Deported Nationals”. Below is an excerpt from his prepared testimony which provides additional background for this issue:

The removal process is impacted by the level of cooperation offered by our foreign partners. As the Committee is aware, in order for ICE to effectuate a removal, two things are generally required: (1) an administratively final order of removal and (2) a travel document issued by a foreign government. Although the majority of countries adhere to their international obligation to accept the return of their citizens who are not eligible to remain in the United States, ICE faces unique challenges with those countries that systematically refuse or delay the repatriation of their nationals. Such countries are considered to be uncooperative or recalcitrant, and they significantly exacerbate the challenges ICE faces in light of the U.S. Supreme Court’s decision in Zadvydas v. Davis, 533 U.S. 678 (2001).

In Zadvydas, the Court effectively held that aliens subject to final orders of removal may generally not be detained beyond a presumptively reasonable period of 180 days, unless there is a significant likelihood of removal in the reasonably foreseeable future. Regulations were issued in the wake of Zadvydas to allow for detention beyond that period in a narrow category of cases involving special circumstances, including certain terrorist and dangerous individuals with violent criminal histories. Those regulations have faced significant legal challenges in federal court. Consequently, ICE has been compelled to release thousands of individuals, including many with criminal convictions, some of whom have gone on to commit additional crimes.

23 countries considered “recalcitrant”, 62 countries with “strained cooperation”

Countries are assessed based on a series of tailored criteria to determine their level of cooperativeness with ICE’s repatriation efforts. Some of the criteria used to determine cooperativeness include: hindering ICE’s removal efforts by refusing to allow charter flights into the country; country conditions and/or the political environment, such as civil unrest; and denials or delays in issuing travel documents. This process remains fluid as countries become more or less cooperative. ICE’s assessment of a country’s cooperativeness can be revisited at any time as conditions in that country or relations with that country evolve; however, ICE’s current standard protocol is to reassess bi-annually. 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. As a result of their lack of cooperation, ICE has experienced a significant hindrance in our ability to remove aliens from these countries. In addition, ICE is also closely monitoring an additional 62 countries with strained cooperation, but which are not deemed recalcitrant at this time.

DHS/ICE and State/CA: measures for dealing with uncooperative countries

Responses to a country’s recalcitrance are, in part, guided by a Memorandum of Understanding (MOU) between ICE and DOS Consular Affairs, signed in April 2011. Pursuant to this MOU, ICE continues to work through U.S. diplomatic channels to ensure that other countries accept the timely return of their nationals in accordance with international law by pursuing a graduated series of steps to gain compliance with the Departments’ shared expectations. The measures that may be taken when dealing with countries that refuse to accept the return of their nationals, as outlined in the 2011 MOU, include:

♦ issue a demarche or series of demarches;

♦ hold a joint meeting with the Ambassador to the United States, Assistant Secretary for Consular Affairs, and Director of ICE;

♦ consider whether to provide notice of the U.S. Government’s intent to formally determine that the subject country is not accepting the return of its nationals and that the U.S. Government intends to exercise authority under section 243(d) of the Immigration and Nationality Act (INA) to encourage compliance;

♦ consider visa sanctions under section 243(d) of the INA; and

♦ call for an interagency meeting to pursue withholding of aid or other funding.

A State Department official on background told us today that “facilitating the removal of aliens who are subject to a final order of removal, particularly those who pose a danger to national security or public safety, is a top priority for the Department of State.”  Also that the Department’s discontinuation of visa issuance this past October was “in response to the Gambia’s failure to issue travel documents for any individuals under final order for removal.” More:

When approaching a specific country, we consider all options at our disposal, taking into account the totality of national security and foreign policy equities that could be impacted.  In many cases, significant progress has been possible through intensive diplomatic engagement.  Taking into consideration each country’s specific situation and other important U.S. interests, we work with ICE to determine the course of action best suited to securing compliance from each government.

Since visa issuance is on reciprocal basis we wanted to know how this might affect America citizens in countries subjected to visa sanctions. Here is the official response:

Our goal is to achieve success without inciting retaliation that could hurt the U.S. in other ways.   Imposition of visa sanctions on a given country is one potentially powerful tool.  However, it is important to note that what works in one country may not be effective in another.  Some governments would prefer to have their citizens stay home rather than spend their money on U.S. hotels, airlines, and tourist attractions.  Others could retaliate in ways that could be detrimental to wider U.S. security concerns, such as law enforcement, military, or counter-terrorism cooperation.

 

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Advice to the Next Secretary of State: Stay Home #Tillerson

Posted: 1:13 am ET

 

Back in 2013, when Secretary Kerry was on his first trip overseas, D.B. Des Roches, an associate professor at the Near East South Asia Institute for Strategic Studies published a commentary about Secretary Kerry’s trip and the current ‘success’ metric.

Most recent secretaries have considered travel to be the measure of their terms. When Hillary Clinton returned to work from hospitalization, her staff gave her a football jersey with “112” on it – reflecting the number of countries she had visited. Republicans retorted that Condoleezza Rice still held the record for most miles logged.
[….]
This focus on secretary of state travel as a measure of dedication, efficiency and competence is dysfunctional. We should decide, as Mr. Kerry’s first trip (to Europe and the Middle East) gets underway, to abandon this harmful metric and evaluate diplomacy in a way that acknowledges its complexity.

Read more: Secretary of State Scorecard: Work Done Not Miles Flown, Please.

The writer made some excellent points, of course, and everybody paid attention.

Secretary Kerry has now traveled to 91 countries, logging in 1,395,606 miles, 588 travel days and 2,995.94 hours of total flight time as of this writing. It’s only a matter of time before somebody will have a compare/contrast infographic of the secretaries of state’s travel records from Kissinger to Kerry.

Recently, Gerald M. Fierstein — who was President Obama’s Ambassador to Yemen from 2010 to 2013 and who worked under Secretary Kerry until his retirement in 2016 — penned a similar piece urging the next secretary of state to well, “stay home.” Ambassador Fierstein also points to a most consequential cost when the secretary of state is often on the road.  Excerpt via Reuters:

As President Barack Obama’s tenure draws to a close, Washington is turning its attention to one of its silliest traditions: toting up the travel statistics of the outgoing secretary of state, as if miles traveled correlated to diplomatic achievement.

In his four years as secretary of state, John Kerry has thus far (he still has six weeks left) traveled over 1.3 million miles and spent 564 days – nearly one-third of his time as Secretary – on the road.  Although this easily surpasses Hillary Clinton’s 956,733 miles and 401 days, Kerry will not be able to match Mrs. Clinton’s record of 112 countries visited.  Alas, Mr. Kerry will only make it to 90 countries during his tenure.
[…]
If this were simply a matter of the secretary undertaking quixotic missions with little to show for them, it would probably not be an issue worthy of much attention.  But there are costs to U.S. foreign policy interests that are imposed by the secretary’s frequent absences from Washington.

When the secretary is on the road, he is not at the table when the president makes decisions that directly affect foreign policy.  Equally, since other senior diplomats are frequently on the road, the State Department often does not have an equal voice with the other Cabinet departments in the National Security Council meetings. The net result is an imbalance between diplomatic options and military or intelligence community preferences.

Read in full below:

Related posts:

 

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Trump to Nominate Robert Lighthizer as the Next U.S. Trade Representative

Posted: 1:38 am ET

 

On January 3, President-elect Trump announced his intent to nominate former deputy USTR Robert Lighthizer as the next U.S. Trade Representative (@USTradeRep).  If confirmed, Ambassador Lighthizer would replaced Ambassador Michael Froman who was sworn in as the 17th United States Trade Representative (USTR) on June 21, 2013 as President Obama’s principal advisor, negotiator and spokesperson on international trade and investment issues. The Transition Team released the following statement:

(New York, NY) — President-elect Donald J. Trump today announced that he intends to nominate Robert Lighthizer as U.S. Trade Representative.

Ambassador Lighthizer served under President Ronald Reagan as Deputy United States Trade Representative, playing a major role in developing trade policy for the Reagan Administration and negotiating roughly two dozen bilateral international agreements on a variety of topics from steel to grain. These agreements were uniformly tough and frequently resulted in significant reductions in the shipment of unfairly traded imports into the United States.

In his new role, Ambassador Lighthizer will work in close coordination with Secretary of Commerce-designate Wilbur Ross and Peter Navarro, head of the newly created White House National Trade Council, to develop and implement policies that shrink our trade deficit, expand economic growth, strengthen our manufacturing base and help stop the exodus of jobs from our shores.

“Ambassador Lighthizer is going to do an outstanding job representing the United States as we fight for good trade deals that put the American worker first,” said President-elect Donald J. Trump. “He has extensive experience striking agreements that protect some of the most important sectors of our economy, and has repeatedly fought in the private sector to prevent bad deals from hurting Americans. He will do an amazing job helping turn around the failed trade policies which have robbed so many Americans of prosperity.”

“It is a very high honor to represent our nation and to serve in President-elect Trump’s administration as the U.S. Trade Representative,” said Ambassador Robert Lighthizer. “I am fully committed to President-elect Trump’s mission to level the playing field for American workers and forge better trade policies which will benefit all Americans.”

Ambassador Lighthizer has long been a leader in U.S. trade policy, and has extensive experience in the legislative branch, the executive branch, and the private sector. Aside from his service in the Reagan Administration, he was Chief of Staff of the United States Senate Committee of Finance when Congress passed the Reagan program of tax cuts and spending reductions, and also aided in the passage of legislation which implemented the Tokyo Round of trade negotiations. He has also represented the United States at meetings of the Organization for Economic Cooperation and Development and meetings related to the General Agreement on Tariffs and Trade (the precursor to the World Trade Organization).

Ambassador Lighthizer headed up the international trade law practice at Skadden, Arps Slate, Meagher and Flom for over three decades. He has represented American manufacturers in many of the largest and most significant trade cases of the last 25 years, such as the steel safeguard case of the early 2000s — the last time any president granted global safeguard relief. He has worked on scores of successful cases that resulted in reducing unfair imports and helping thousands of American workers and numerous businesses.

Ambassador Lighthizer has also been an outspoken commentator on trade issues, giving speeches and writing articles for the New York Times and other publications, as well as providing testimony to key Congressional committees, the U.S. China Economic and Security Review Commission, and other government agencies with responsibility for trade policy. He graduated from Georgetown University and the Georgetown University Law Center.

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Related items:

 

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OSCE Minsk Group: James Warlick Steps Down, Richard Hoagland Assumes Co-Chair Position

Posted: 9:53 pm PT

 

The US embassies in Armenia and Azerbaijan announced that Ambassador James Warlick, Co-Chair for the Minsk Group is stepping down effective December 31.  Ambassador Richard Hoagland will assume the position on an interim basis starting in January 2017.

Ambassador Richard E. Hoagland will assume the position of U.S. Co-Chair of the Organization for Security and Cooperation in Europe (OSCE) Minsk Group on an interim basis starting in January 2017. He replaces Ambassador James B. Warlick, who will step down on December 31.

Ambassador Hoagland brings over 30 years of diplomatic experience to the position. He served as U.S. Ambassador to Tajikistan from 2003 to 2006, U.S. Ambassador to Kazakhstan from 2008 to 2011, and as Deputy Ambassador to Pakistan from 2011 to 2013. Ambassador Hoagland most recently led U.S.-Russian military coordination for the Cessation of Hostilities in Syria and served as Principal Deputy Assistant Secretary in the Bureau of South and Central Asian Affairs at the State Department in Washington. Prior to these assignments, Ambassador Hoagland led the Office of Caucasus and Central Asian Affairs in the Bureau of Europe and Eurasian Affairs and was Press Spokesman for the U.S. Embassy in Moscow.

Ambassador Hoagland’s extensive diplomatic experience will be critical as the United States works with the sides toward a lasting and peaceful settlement to the Nagorno-Karabakh conflict. The United States continues to call on the parties to maintain their commitment to the ceasefire and to implement agreements reached at the Vienna and St. Petersburg summits, and urges a return to negotiations on a settlement, which would benefit all sides.

The permanent replacement for Ambassador Warlick will be announced at a future date.

Meanwhile — things are heating up again over there:

Greek Ambassador Kyriakos Amiridis Murdered, Wife and Brazilian Policeman in Custody

Posted: 8:30 pm PT

 

The Greek Foreign Ministry released a statement on the death of its ambassador in Brazil:

The Brazilian authorities just officially announced the identification of the remains of the deceased Greek Ambassador to Brazil, Kyriakos Amiridis, which were found charred in the region of Nova Iguaçu in Rio de Janeiro.

We express our deepest sorrow at the tragic death of Ambassador Kyriakos Amiridis, a friend of Brazil, who throughout his diplomatic career served Greece conscientiously and responsibly. The late diplomat served at the Permanent Mission of Greece to the EU, at the General Consulates in Rio de Janeiro and Rotterdam, and at the Greek Embassy in Belgrade during the first phase of the war in Yugoslavia.

A milestone in his career was his term as Ambassador of Greece in Tripoli, Libya, and his decisive role in the evacuation, under conditions of extreme violence, of the Embassy staff, of Greeks in Libya as well as of thousands of third-country nationals from Libya in the summer of 2014.

Finally, his contribution to the organization of the International Conference on “Religious and Cultural Pluralism and Peaceful Coexistence in the Middle East” in Athens in October 2015 was of key importance.

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DHS/FBI Issues Joint Analysis Report: GRIZZLY STEPPE – Russian Malicious Cyber Activity (Read Report)

Posted: 1:32 pm PT

 

Related to the declaration of 35 Russian officials persona non grata for malicious cyber activity and harassment (see USG Declares 35 Russian Officials Persona Non Grata, Imposes New Sanctions), DHS and FBI also released a Joint Analysis Report (JAR) which provide details of the tools and infrastructure used by Russian intelligence services to compromise and exploit networks and infrastructure associated with the recent U.S. election, as well as a range of U.S. government, political and private sector entities. Below via us-cert.gov: from the JAR: GRIZZLY STEPPE – Russian Malicious Cyber Activity. Click on image below to read the full Joint Analysis Report from DHS/FBI: JAR_16-20296. Original document is posted here.

In spring 2016, APT28 compromised the same political party, again via targeted spearphishing. This time, the spearphishing email tricked recipients into changing their passwords through a fake webmail domain hosted on APT28 operational infrastructure. Using the harvested credentials, APT28 was able to gain access and steal content, likely leading to the exfiltration of information from multiple senior party members. The U.S. Government assesses that information was leaked to the press and publicly disclosed.  

jar

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POTUS and Japanese PM Shinzo Abe Visit Pearl Harbor

Posted: 2:54 pm PT

 

“As the prime minister of Japan, I offer my sincere and everlasting condolences to the souls of those who lost their lives here, as well as to the spirits of all the brave men and women whose lives were taken by a war that commenced in this very place, and also to the souls of the countless innocent people who became victims of the war.  We must never repeat the horrors of war again.  This is the solemn vow we, the people of Japan, have taken. And since the war, we have created a free and democratic country that values the rule of law and has resolutely upheld our vow never again to wage war.”

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Russian Ambassador to Turkey Andrei Karlov Shot Dead in Ankara

Posted: 10:30 am PT

 

Russia’s ambassador to Turkey, Andrei Karlov, was killed on Monday, while attending an art exhibition in the Turkish capital of Ankara. Daily Sabah reports that Turkish security officials identified the attacker as Mert Altıntaş, who had graduated from İzmir Rüştü Ünsal Police Academy in 2014.  Hurriyet Daily News says that Ambassador Karlov started his career as a diplomat in 1976 and worked extensively in North Korea over three decades before moving to Ankara in 2007. He became ambassador in July 2013.

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Steve Coll on the Tillerson Pick Plus Excerpt From ‘Private Empire: ExxonMobil and American Power’

Posted: 1:11 am ET

 

Steve Coll writes in The New Yorker that Trump’s reported pick of Tillerson as Secretary of State is “astonishing on many levels.”

As an exercise of public diplomacy, it will certainly confirm the assumption of many people around the world that American power is best understood as a raw, neocolonial exercise in securing resources.
[…]
Compared to the records of some of the other people around Trump, Tillerson’s is at least one of professional integrity; Exxon is a ruthless and unusually aggressive corporation, but it is also rule-bound, has built up a relatively strong safety record, and has avoided problems such as prosecutions under the Foreign Corrupt Practices Act, even though it operates in many countries that are rife with corruption.
[…]
In his career at ExxonMobil, Tillerson has no doubt honed many of the day-to-day skills that a Secretary of State must exercise: absorbing complex political analysis, evaluating foreign leaders, attending ceremonial events, and negotiating with friends and adversaries. Tillerson is a devotee of Abraham Lincoln, so perhaps he has privately harbored the ambition to transform himself into a true statesman, on behalf of all Americans. Yet it is hard to imagine, after four decades at ExxonMobil and a decade leading the corporation, how Tillerson will suddenly develop respect and affection for the American diplomatic service he will now lead, or embrace a vision of America’s place in the world that promotes ideals for their own sake, emphatically privileging national interests over private ones.

Read in full here.  Steve Coll is the author of the book on ExxonMobil, excerpt below courtesy of Kindle Preview:

 

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Trump’s Team Checking on How to Move US Embassy to Jerusalem. And Havoc That Follows?

Posted: 12:45 pm PT

 

In November, we blogged about the potential move of the US Embassy in Tel Aviv to Jerusalem (see Will the US Embassy Move From Tel Aviv to Jerusalem?). There were two related ongoing construction work at USG properties in Israel — a $50M renovation at US Embassy Tel Aviv, and ongoing work of undetermined cost at a consular annex for US Consulate General Jerusalem. Last month, we learned that both projects were put on hold the day after the election.

On December 12, Dana Weiss from Israel’s Channel2News tweeted, “Trump’s team already checking where and how to move embassy to Jerusalem. Among options Diplomat hotel . This week Israeli Foreign | Started to check availability as the hotel houses elderly. Was told not possible until 2020. Security sources are anxious the move | Would backlash and question the Arab response.”

In June 2014, YNet reported that the U.S. Government holds the option of purchasing land in the Arnona neighborhood, where the consulate is located. This land reportedly includes the Diplomat hotel that currently serves the Ministry of Immigrant Absorption.

A US administration official said that “Under the terms of its commercial lease agreement, the USG has the option to purchase the property we currently occupy in Arnona and acquire our landlord’s remaining leasehold interests in the adjacent property, which is the site of the Diplomat Hotel.

“The USG has exercised that option and intends to continue using the site as the Consular Annex of the US Consulate General, where we have provided American citizen services and visa services since 2010. Under the terms of the USG’s lease, once the option is exercised, the landlord is required to provide the USG vacant possession of the adjacent property, likely, in 2016.”

The actual move should it happen, requires the involvement of the Bureau of Overseas Buildings Operations (OBO) which directs the worldwide overseas building program for the Department of State and the U.S. Government community serving abroad under the authority of the chiefs of mission, and the Bureau of Diplomatic Security tasks with securing personnel and overseas facilities.

On the potential backlash for this move, Uri Savir, former diplomat and Israeli Chief Negotiator of the Oslo Accords wrote in AlMonitor that Cairo greeted Donald Trump’s election positively and that the Egyptian ambassador to Washington was in contact with president-elect Donald Trump. Egypt is reportedly looking at improved relations with Washington under a President Trump but one topic that was discreetly raised by the Egyptians is the potential move of the embassy from Tel Aviv to Jerusalem: “Cairo cannot commit to an improved relationship if the US Embassy to Israel is moved from Tel Aviv to Jerusalem. Given the sentiments in Egyptian public opinion toward the Palestinians and the city, which is holy to Islam, Cairo considers this issue as a red line.”

A senior PLO official talking to Al-Monitor on condition of anonymity explained that “for the Palestinians, moving the US Embassy to Jerusalem is a “casus belli” (a provocation of war), thus they are planning a series of measures in case this will indeed take place. Ramallah is coordinating these measures with Egypt, Jordan, Saudi Arabia, Morocco and the Arab League. The official cited five measures: abolishing of the Oslo Accord (and all elements of security cooperation between Israel and the Palestinians); severing diplomatic relations between Egypt and Israel and also between Jordan and Israel; canceling the 2002 Arab Peace Initiative as a relevant document; calling upon the international community to sever diplomatic ties with Israel; and planning an armed Al-Quds intifada.”

Mr. Savir concludes“it is clear that such a move would create havoc in the Arab world.”

Read more:

 

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