Obliging Foreign Nations to Meet Their Repatriation Obligations

This is a good-news/bad-news kind of blog. The good news is that after years of relative inattention, members of Congress are focusing on the continuing problem associated with countries refusing to accept their nationals who have been ordered deported from the United States.

The bad news is that at least some of the congressional attention — for however long it lasts — is due to the unfortunate and avoidable murder of a young woman in Connecticut by a Haitian national, Jean Jacques. Haiti refused to accept him after he was ordered removed, having been released from prison after conviction for attempted murder. Because repeated attempts to obtain repatriation documents from Haitian authorities failed, Immigration and Customs Enforcement (ICE) officials ultimately released him from detention, and he went on to murder the woman, Casey Chadwick.

The worse news it that Ms. Chadwick was not the only such victim. Sadly, there have been a number of them, sometimes because the release was from ICE custody; often enough because of the ill-conceived sanctuary policies of states or local governments that choose to let aliens walk free rather than putting them into the custody of ICE after they are released from state or local confinement.

This attention on the part of lawmakers has manifested itself in bills introduced in both chambers of Congress to try to do something about the festering and unacceptable situation of noncooperation by other countries.

Current law obliges the secretary of State to discontinue granting both immigrant and nonimmigrant visas upon notice from the secretary of the Department of Homeland Security (DHS) to a that nation denies or unreasonably delays accepting return of a citizen, subject, national, or resident of that country. (Section 243(d) of the Immigration and Nationality Act (INA), codified at 8 USC Section 1253(d)).) Unfortunately, as Center for Immigration Studies Legal Policy Analyst Jon Feere has noted repeatedly, the existing legal authorities have almost never been exercised (see here and here).

Jessica Vaughan, director of policy studies at the Center, has also published a number of compelling studies (see, for instance, here, here, and here) documenting the shocking number of releases of criminal aliens back into communities across America, many of whom have been released because they cannot be repatriated and the Supreme Court rules enunciated in Zadvydas v. United States therefore require that they be let go.

There are at least three pending bills that seek to change the shocking situation that now exists:

S. 3277. The most recent bill, dubbed Casey's Law, after the woman murdered in Connecticut, was introduced by senators from both parties. The bill lays out criteria to be met, after which the DHS secretary would be obliged to notify the State Department of noncooperation, and State would be obliged to discontinue issuing visas. There are some potentially problematic areas with this bill.

First, it limits the criteria that result in DHS notifications about aliens convicted of felonies or crimes of violence, or who constitute threats to national security or public safety. That delimiter is actually a reduction in the usefulness of the statute as it exists now. Furthermore, "crimes of violence" are not defined, nor is what constitutes a threat to national security or public safety, thus virtually guaranteeing years of delay as arguments wax and wane on that score.

Second, and of equal concern, is the question of how this bill — which is a standalone and does not amend the INA — interplays with the existing language contained in Section 243(d), which is not limited only to felons and the like. Would the features of this bill, if enacted, be considered to supersede and thus actually inhibit the authorities now contained in the INA except as regards felons, violent criminals, and national security threats? If that were to be the case, this bill might actually cause harm by encouraging countries to abide by their obligations in those three important areas, while permitting them to engage in willful obstruction in all other removal cases.

Third, the bill provides for "waivers" to be exercised by both the secretaries of State and DHS. Experience under the Obama administration has shown us that when given such waivers, cabinet secretaries will inevitably use them, and often in a political fashion that is dismissive of that national interest or security — as happened immediately after amendments to the Visa Waiver Program were signed into law (see here and here). One may recognize the objective need for this kind of waiver authority, but we have seen its abuse, and the bill would be better were there some kind of congressional check or pre-approval required prior to its exercise to ensure that waivers don't undermine the intent of the law. The only check on abuse of the waiver authority in this bill is annual reports to Congress, which not only seem ineffectual, but are often not even submitted, as has been the case with required reports under the Visa Waiver Program.

H.R. 583. The "Timely Repatriation Act" was introduced at the beginning of the year by Rep. Ted Poe of Texas on behalf of himself and others. It provides that the DHS secretary must produce a list and certify it to Congress and that the secretary of State must cease issuing visas on an incremental and formulaic basis to lesser-status (A-3) diplomats and their families, and proceeding onward (and upward) through the diplomatic ranks should the country continue its recalcitrance toward acceptance of its citizens and nationals for repatriation. There is wisdom in this approach in that it recognizes that those most likely able to change the repatriation foot-dragging are the political and diplomatic leaders of the country, and that they and their families will be those most immediately and adversely affected, through deprivation of visas, if they do not in fact make the changes.

The bill contains three additional key provisions:

First, it provides for waivers to be issued by the secretary of State although the secretary of State is limited to two kinds of waivers: a determination of national security interest in a waiver (which does require notification to Congress — see my comment above re S. 3277) and a "temporary exigent circumstance" waiver. Similarly the DHS secretary is authorized to issue an "exemption", but the circumstances under which an exemption may be invoked are carefully limited.

Second, the bill states categorically that unauthorized visas issued in contravention of the statute are "void". This is of great significance in providing a tool to immigration officers, post-entry, in ensuring that such aliens can be taken into custody and expelled, although given that the visa used for entry would on its face be a diplomatic visa, a significant amount of high-level consultation would likely be required before any action was taken to effect an arrest.

Third, the bill requires state and local prosecuting authorities to be notified whenever an alien under order of removal is to be released in their area, and additionally requires that victims and their families be notified of the release as well.

H.R. 5224. This bill was introduced by Rep. Babin of Texas in May. It is called the "Criminal Alien Deportation Enforcement Act" and amends the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq.) by prohibiting federal financial assistance to "countries that deny or unreasonably delay the repatriation of nationals who have been ordered removed from the United States". As with the prior bills, this bill also requires the secretary of DHS to prepare and promulgate a list, to both chambers of Congress, of those countries that fail in their obligations to accept repatriation of citizens and nationals being removed from the United States. There are three additional key features in this bill:

First, although it takes a different tack, like H.R. 583 this bill is designed to capture the attention of political leaders and diplomats in countries that fail in their repatriation obligations by tying up international aid to their nation(s) unless and until they mend their ways and begin issuing the travel and identity documents needed to remove and repatriate aliens to their home countries. As the saying goes, "Money talks."

Second, the bill provides a private right of action to a "victim or an immediate family member of a victim of a crime committed by any alien" whose removal has been impeded by a foreign country's unwillingness to issue documents, to force compliance by the federal government with the requirement to cease providing aid to the offending country.

Third, this bill amends Section 243(d). It reiterates that no visas will be issued to nationals of countries identified as noncompliant in providing travel documents needed for repatriation of aliens being removed. More importantly, like H.R. 583, it specifies that "[a]ny visa issued or status provided in violation of this paragraph shall be null and void. And, like the above-mentioned provision, it provides a private right of standing to victims and family members to sue the federal government should the State Department fail in its obligations to cease issuing visas, as is now routinely done under the existing language of Section 243(d).