US Implements Visa Waiver Restrictions For Dual Nationals From Iran, Iraq, Sudan, and Syria

Posted: 6:09 pm EDT
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The ‘‘Consolidated Appropriations Act, 2016’’ which became Public Law No: 114-113 on December 18, 2015 includes a provision for “terrorist travel prevention and visa waiver program” officially called the ‘‘Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015’’.  The new law which affects dual nationals from WVP countries and Iran, Iraq, Sudan and Syria includes a waiver to be be exercised by the DHS secretary.  The new law also requires the Secretary of Homeland Security to submit to the Committee on Homeland Security, the Committee on Foreign Affairs, the Permanent Select Committee on Intelligence, and the Committee on the Judiciary of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs, the Committee on Foreign Relations, the Select Committee on Intelligence, and the Committee on the Judiciary of the Senate a report on each instance in which the Secretary exercised the waiver authority during the previous year.

On January 21, the State Department announced the implementation of the changes to the Visa Waiver Program. Below is the announcement:

The United States today began implementing changes under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act). U.S. Customs and Border Protection (CBP) welcomes more than a million passengers arriving to the United States every day and is committed to facilitating legitimate travel while maintaining the highest standards of security and border protection. Under the Act, travelers in the following categories are no longer eligible to travel or be admitted to the United States under the Visa Waiver Program (VWP):

  • Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country).
  • Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.

These individuals will still be able to apply for a visa using the regular immigration process at our embassies or consulates. For those who need a U.S. visa for urgent business, medical, or humanitarian travel to the United States, U.S. embassies and consulates stand ready to process applications on an expedited basis.

Beginning January 21, 2016, travelers who currently have valid Electronic System for Travel Authorizations (ESTAs) and who have previously indicated holding dual nationality with one of the four countries listed above on their ESTA applications will have their current ESTAs revoked.

Under the new law, the Secretary of Homeland Security may waive these restrictions if he determines that such a waiver is in the law enforcement or national security interests of the United States. Such waivers will be granted only on a case-by-case basis. As a general matter, categories of travelers who may be eligible for a waiver include:

  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of international organizations, regional organizations, and sub-national governments on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of a humanitarian NGO on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria as a journalist for reporting purposes;
  • Individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and
  • Individuals who have traveled to Iraq for legitimate business-related purposes.

Again, whether ESTA applicants will receive a waiver will be determined on a case-by-case basis, consistent with the terms of the law. In addition, we will continue to explore whether and how the waivers can be used for dual nationals of Iraq, Syria, Iran and Sudan.

Any traveler who receives notification that they are no longer eligible to travel under the VWP are still eligible to travel to the United States with a valid nonimmigrant visa issued by a U.S. embassy or consulate. Such travelers will be required to appear for an interview and obtain a visa in their passports at a U.S. embassy or consulate before traveling to the United States.

The new law does not ban travel to the United States, or admission into the United States, and the great majority of VWP travelers will not be affected by the legislation.

An updated ESTA application with additional questions is scheduled to be released in late February 2016 to address exceptions for diplomatic- and military-related travel provided for in the Act.

Information on visa applications can be found at travel.state.gov.

Current ESTA holders are encouraged to check their ESTA status prior to travel on CBP’s website at esta.cbp.dhs.gov.

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A couple days ago ….

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US Embassy Vietnam: Congressman Calls for Firing of Ambassador Shear ‘Cuz Embassy Not An Island of Freedom

On July 9th, Rep. Frank Wolf (R-VA) who represents the 10th District  since 1981 (and is up for reelection) in northern Virginia, the home to many Vietnamese-Americans has called for the firing of the US Ambassador to Vietnam David Shear.  This is not the first time, he has done this, of course.  In May this year, Congressman Wolf had also called for Ambassador Shear’s sacking.

If we fire our diplomats every time a congressman is upset with a career diplomat, we won’t have anyone left to run our embassies.

According to Congressman Wolf’s office, Ambassador David Shear should be removed because he has “repeatedly failed to advocate for human rights and speak out for the voiceless in Vietnam.” Wolf recommended that Shear be replaced by a Vietnamese-American.

In his letter to President Obama, Congressman Wolf was particularly upset by 1) Ambassador Shear’s “failure to invite more dissidents and human rights activists” to the U.S. Embassy for a July 4 celebration after promising that he would; and 2) was disappointed in Ambassador Shear’s handling of the case of Dr. Nguyen Quoc Quan, a Vietanmese-American democracy activist and U.S. citizen presently being held by the Vietnamese government.

Below is an excerpt from Congressman Wolf’s letter to the WH with some photos we’ve dug up online from the US Embassy Vietnam:

I have long believed that U.S. embassies should be islands of freedom – especially in repressive countries like Vietnam. Under Ambassador Shear’s leadership it didn’t appear that the U.S. embassy in Hanoi was embracing this important task. But even more troubling is the fact that Dr. Quan is an American citizen, and yet there appeared to be little urgency to securing his release.

In speaking by phone with Ambassador Shear following the hearing I expressed my concerns and urged him to host a July 4th celebration at the embassy, where the guest list was comprised of religious freedom and democracy activists in Vietnam. I stressed that he should fling open the doors of the embassy and invite Buddhist monks and nuns, Catholic priests and Protestant pastors, Internet bloggers and democracy activists. Such was the custom during the Reagan Administration, especially in the Soviet Union. This practice sent a strong message that America stood with those who stand for basic human rights. In many cases it afforded these individuals protection from future harassment and even imprisonment.

From left to right: Clara Davis-Long, DRL DAS Kathleen Fitzpatrick, AAL Suzan Johnson Cooks, Archbishop Nguyen Van Nhon, U.S. Ambassador David Shear, and Father Hung.
(Photo from US Embassy Hanoi/Flickr)

Ambassador Shear said that he intended to honor this request. Following my conversation with him I received the enclosed letter from the department indicating that, “Ambassador Shear continues to engage with civil society advocates, promoters of rule-of-law, and democracy activists and will welcome them to the Embassy’s July 4th celebration.” I took Ambassador Shear at his word and in fact shared this correspondence with members of the Vietnamese Diaspora community in the U.S., several of whom were greatly encouraged by this development.

Late last week it was brought to my attention that many of the most prominent democracy and human rights activists in Vietnam were not invited to the event. These reports seemed starkly at odds with the assurances I had personally received from Ambassador Shear. I called him directly this morning to find out if the embassy had invited the dissidents as had been agreed upon. His response was appalling. He said that he had invited a few civil society activists but then said that he needed to maintain a “balance.”

From left to righ: Clara Davis-Long, IRF Desk Officer, DRL DAS Kathleen Fitzpatrick, U.S. Ambassador David Shear, Ambassador-at-Large for Religious Freedom Suzan Johnson Cook and Dr. Nguyen Thanh Xuan, Vice Chair of the Committee for Religious Affairs
(Photo from US Embassy Hanoi/Flickr)

I wonder how many prominent democracy and human rights activists flooded the 4th of July celebrations at our embassies in Saudi Arabia, Bahrain, or China? And is Congressman Wolf upset with those as well?

Who would have thought that the 4th of July could be such a perilous event? And how many is “more” really, that seems like an important number.

I can understand Ambassador Shear’s point about “balance” but also appreciate the mission discretion over these invitees. Vietnam is run by a repressive, communist regime. The embassy has to deal with the government in place, not the government it wished were in place. That said, it is not beyond the realm of possibility that the democracy or human right activists who shows up at this function could be put in peril just by the perception that they are working with the Americans. Does Congressman Wolf really want this kind of showy camera moment outreach during our national day or should we not prefer that the embassy have a more substantial engagement beyond the bright lights?

SON LA, Socialist Republic of Vietnam (Nov. 15, 2011) – Dr. Joshua Peck, center, a forensic anthropologist from the Joint POW/MIA Accounting Command, briefs Ambassador David Shear, right, at a remote recovery site. Five recovery teams are searching in the Thai Nguyen, Bac Giang, Lang Son, Son La, and Thanh Hoa provinces at aircraft crash and burial sites for six Americans unaccounted-for from the Vietnam War. The ultimate goal of JPAC, and of the agencies involved in returning America’s heroes home, is to achieve the fullest possible accounting of Americans lost during the nation’s past conflicts. (DoD photo by Mr. Jason Kaye, U.S. Navy/Released)

Just a side note here — the 2012 IG report tells us that the Government of Vietnam requires advance permission to conduct programs outside U.S. Government premises, controls the print and electronic media, and sometimes limits access to Internet sites. The US Embassy in Vietnam has been creative in using Vietnamese alumni of U.S. exchange programs as they are able to operate outside the restrictions placed on American speakers.  These alumni can more easily engage with wider audiences as credible, informed communicators about their American experience, something the USG speakers are unable to do. That’s how restrictive is the operating environment. Heck, even acquiring land for a much-needed, new embassy compound there have stalled because the GOV is unwilling to grant a lease term that is acceptable to the State Department.

As to his gripe about the practice and custom during the Reagan Administration of sending a strong message that “America stood with those who stand for basic human rights,” it seems like the congressman has a rather selective memory. We may have been doing that in the Soviet Union, but didn’t we embraced an infamous human rights offender in Asia?  While visiting Ferdinand Marcos, the Filipino dictator, didn’t Reagan’s vice president, George H.W. Bush, toasted Marcos’ “adherence to democratic principles?” How quickly we forget our best moments in diplomacy.

As to Congressman Wolf’s complaint about the handling of the case of Dr. Nguyen Quoc Quan, a Vietanmese-American democracy activist and U.S. citizen who is presently being held by the Vietnamese government — for an elected official it shows a limited understanding of what our embassy can and cannot do for Americans in jail.

Dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries. Either country has the right to enforce its laws, particularly if the person later travels there. The United States may view Dr. Quan as a dual national U.S. citizen, not prohibited under our laws, but the country of Vietnam may make no distinction about his dual nationality.

Dr Quan was reportedly arrested in Ho Chi Minh City in Vietnam on a trip on November 17, 2007 for preparing pro-democracy flyers. According to his Wikipedia entry, he brought in a Vietnamese translation of the book From Dictatorship to Democracy about nonviolent resistance. He stood trial in Vietnam on May 13, 2008 on charges of “terrorism” (those commies are creative) and was sentenced to 6 months in prison. He was eventually released on May 17, 2008 and returned to his home in California.

And in April 2012, Dr. Quan was again arrested at the airport in Ho Chi Minh City. Government officials did not confirm his arrest until five days later. He is reportedly once more, detained on charges of terrorism and for planning to “instigate a demonstration” during the anniversary of the Fall of Saigon.

News report in April indicate that the U.S. consulate in Vietnam has confirmed his arrest but that no formal charges have been filed and he has not been granted a lawyer.  Since his arrest, the US consulate was apparently able to visit him only once.

According to a 1994 agreement, U.S. citizens, even dual citizens, have the right to consular access if they were admitted into Vietnam as a U.S. citizen with their U.S. passport. If detained or arrested, travel.state.gov advised that “U.S. citizens should insist upon contact with the U.S. Embassy or the U.S. Consulate General.”

The problem is the Government of Vietnam is generally slow to notify the embassy about arrests or to grant access to U.S. citizen prisoners, and it requires diplomatic notes to schedule prison visits. It also does not permit visits without a Vietnamese official being present and insists that all verbal exchanges take place in Vietnamese.

Since the immediate release of Dr. Quan after each arrest is really what the congressman is looking for, nothing that the US mission in Vietnam do will ever be good enough.  Perhaps it would be helpful if the State Department offers basic, no perks, no salary fellowship for our congressional representatives to work the visa line and the American Citizens Services units in the hell holes of the world.  Surely that would be an instructive experience.

Domani Spero