December 19, 2016

Who is to Blame For Failing To Force Countries To Repatriate Their Criminals?



During the presidential race, President-elect Donald Trump said that he would make sure other countries take back their citizens, subjects, nationals, and residents when they are deported, regardless of the reason for deportation. More recently, Trump’s nominee for Attorney General, Senator Jeff Sessions (R-AL),  also reiterated his commitment to resolving this issue.

For most Americans, this seems like a no-brainer; of course countries should have to take back their own citizens when they are deported. Unfortunately — and likely surprisingly for most Americans — this is actually not the case. What’s more, the tools the Department of State has at its disposal to effect deportations are seldom used and largely ineffectual.

At a high level, rather than get stuck with criminals we catch, convict, and then attempt to remove, we need more persuasive and less subjective rules in place to encourage a quick response from recalcitrant countries. What is failing here is the law, both in principle and in practice.

While America needs legal avenues to pressure uncooperative countries into taking back their criminals, the U.S. must prioritize ensuring that we are not simultaneously punishing otherwise legal immigrants from those countries who are trying to come to America.

Our authority to take action when a country refuses to repatriate a citizen is derived from 243(d) of the Immigration and Nationality Act, and is reflected in a 2011 Memorandum of Understanding between U.S. Immigration and Customs Enforcement (ICE) and the Department of State (DoS)which, among other requirements, allows countries 30 days to issue travel documentation necessary to transport the deported individual back to their home country.

If a country refuses to issue documents allowing for the readmission of the criminal, the Attorney General (AG) or the Secretary of the Department of Homeland Security (DHS) notifies DoS, which must order consular offices in that foreign country to discontinue granting immigrant and/or nonimmigrant visas to people of that country until the Attorney General notifies DoS that an individual has been accepted. Although the law offers no room for subjective interpretation of the law, by virtue of the ‘shall’ language, DoS rarely issues the order.

Why is this the case? The breakdown occurs when one of three situations plays out following the deportation proceedings of the alien and subsequent notification to the individual’s home country: 1) either the AG or DHS Secretary fails to notify DoS that a country is recalcitrant, 2) DoS refuses to act on the notification, perhaps due to sensitive political or diplomatic relations, or 3) the clock runs out.

Time is of critical importance, as the U.S. Supreme Court has held that the United States cannot detain an alien indefinitely, and in fact, cannot hold a detainee beyond reasonably foreseeable removal (usually a flexible 6-month period).  Even with a flexible 6 month timeline, the U.S. has been forced to release over 8,000 immigrants with deportation orders since 2013 both undocumented and those with legal status back into the country because their respective countries refused to accept them.

According to documents provided in response to a July 2016 hearing before the House Committee on Oversight and Government Reform, the first invocation of the law occurred in September 2001 against Guyana. Guyana responded in just two months by issuing travel documents for 112 of 113 requested individuals. In December 2011, the United States lifted sanctions against Guyana. Ethiopia and Jamaica were slapped with similar sanctions, resulting in the quick production of travel documents.

Yet since then, DHS contends that DoS is preferring ‘diplomatic’ routes to encourage compliance to preserve friendly relations, despite clear requests by government officials to issue visa sanctions and withhold aid. Those diplomatic efforts seem to consist solely of letters asking Algeria, China, Eritrea, Gambia, Ghana, Guinea, Jordan, Liberia, Mali, Morocco, Senegal, and Uganda to issue travel documentsin some cases, repeatedly. Even though the law requires DoS to order consular officers in that foreign country to discontinue granting visas, in practice, DoS is choosing inaction, and is instead issuing wishy-washy political ‘asks’ (aka, “demarches”) to countries that clearly aren’t persuaded whatsoever to accept their delinquent citizens. Clearly, our polite demarches are falling on deaf ears.

That very few countries are made to feel the wrath of the United States is, in part, a blessing in disguise for the people with visas trying to travel from their home country. But it is also an unacceptable opportunity for countries to ignore our requests.

Just a few months ago, the House and Senate each introduced bipartisan legislation providing for clearer penalties against countries that refuse or delay repatriation. Both fail to penalize recalcitrant governments while keeping separate the innocent natives attempting to travel, thus requiring additional refinement, but they are excellent starting points to ensuring a change to the law.

In the Criminal Alien Deportation Act of 2016, House Republican authors proposed freezing all funds available to a country that does not accept an alien within 90 days of receiving a request to repatriate from the United States. Interestingly, it also provides standing for a victim or immediate family member of a victim to sue in any Federal district court to enforce the provisions of the law, although it bars any monetary awards.

Similarly, Senate Democrats also propose penalties for refusal to repatriate in the Remedies for Refusal of Repatriation Act, but the requirements are significantly more process-oriented. The Act requires DHS to establish procedures for a country to determine if they ‘systematically and unreasonably refuse or delay the repatriation of nationals.” The Act applies only to aliens ordered deported by the U.S. plus a conviction for a felony or a crime of violence, or because they are a threat to national security or public safety. Laborious notification requirements to and from a number of government agencies and an enforcement exception makes this proposal less tenuous, particularly in light of the issues we’ve seen so far with a similarly subjective policy.

The law also provides language to deport individuals who are a threat to national security, thereby offering the United States a stick discontinuing visas to use post-interrogation of terrorist suspects we cannot try, but that we also have a strong interest against keeping in the United States. This could potentially operate as a tool for discriminatory deportations, and needs significant research prior to inclusion.

The difficulty addressing repatriation arises when balancing the pressure to repatriate and the need to preserve immigration avenues — particularly from countries where innocent people have legitimate reasons spurring them to leave, like war, famine, and political unrest. An ideal legislative solution combines financial penalties, diplomatic penalties, an additional safeguard allowing suit in federal district court should the government fail to act appropriately, and most importantly, refrains from punishing legal immigration. Lawmakers should prioritize this small, but significant change in reform legislation in the coming year.