Does Our 'Get to Yes' Visa System Let in Kleptocrats?

By Dan Cadman, December 19, 2016

On December 9, the organization Pro Publica, which describes its mission as "journalism in the public interest", published an article entitled "Suspected of Corruption at Home, Powerful Foreigners Find Refuge in the U.S." in collaboration with the Stabile Center for Investigative Journalism at Columbia University.

It is a lengthy article, and lays out a prima facie case of misfeasance by the U.S. government – presumably the Department of State (DOS) for issuing visas, and the Department of Homeland Security (DHS) for not initiating removal actions – in permitting corrupt kleptocrats who have stolen from the public coffers of their various countries, to use the United States as a safe haven.

It is an article worth reading and there is undoubtedly at least some truth to the story, just as there is truth to asserting that the United States has more often than anyone cares to recount become home to terrorists and to war criminals or human rights abusers (see, for example, here and here).

There is some irony, though, in Pro Publica publishing the story. The organization was founded by well-known liberals and Democratic party loyalists Herb and Marion Sandler (although on the flip side, it has received a Pulitzer Prize for past reporting). The irony is this: as was evident in the presidential election just finished, the Democratic party has doubled down on its fundamental open borders policies for both legal and illegal immigration. One of the reasons so many unworthy – in fact, downright reprehensible – aliens manage to slip through is because consular and immigration officials are overwhelmed by sheer volume.

Another reason (and another irony) is because the Democratic Obama administration has focused so relentlessly on pressuring consular officers and immigration examiners to "get to yes" when it comes to visa issuance and granting of immigration benefits. Understanding the nexus between huge numbers, unrelenting pressure and bad decisions is a simple connect-the-dots matter to anyone but the willfully blind.

But back to this matter of admitting to the U.S. corrupt, often fabulously wealthy, aliens who are alleged to have gotten that way by theft, mismanagement, and fraud against the various foreign governments and corporations they lead. There are always several sides to a story, and one of the balancing acts government officials involved in granting visas or admitting entry must perpetually engage in is measuring due process and rule of law issues.

First, it's important to recognize that many of the individuals in question had multiple-entry visas, and came and went from the U.S. long before allegations of corruption arose.

Second, we need to acknowledge that many are nationals of countries where the rule of law is not firmly established, and charges of corruption can sometimes be used to stifle opposition figures or those whose power begins to make government officials uncomfortable. U.S. immigration laws, by contrast, require a careful calculation to ensure that crimes alleged are not, in fact, "political" crimes. This is often difficult to do absent all the facts, which leads us to the next point.

Third, when individuals have entered the U.S. and allegations of corruption ensue, there are well-known legal mechanisms in place, such as extradition, to deal with requests to repatriate the individual to face charges – if, in fact, formal charges have been levied (another issue unto itself).

Even when there are no extradition treaties between the United States and the affected country, one way that the aggrieved nation can vouchsafe its legitimacy is to prefer criminal charges within its legal system, and offer assurances to the U.S. that the trial will be fair, that the suspect will be afforded defense counsel, and, importantly given our nation's obligations under the Convention Against Torture (CAT), that the individual will not be abused or persecuted if returned to face the charges.

Absent the just-mentioned extradition treaty between the U.S. and another country, are there processes available by which the individual can be repatriated to face corruption charges? There are, and they are contained within the exclusion and deportation provisions of the Immigration and Nationality Act (INA). A powerful catch-all provision that would seem appropriate, particularly in cases such as several of those mentioned in the Pro Publica report where the individual is a figure of great public standing in the other country, is for the Secretary of State to declare that his (or her) presence in the United States is contrary to the foreign policy interests of the United States, and cancel and revoke his visa. INA Sec. 212(a)(3)(C), 8 U.S.C. § 1182(a)(3)(C); and INA Sec. 237(a)(4)(C), 8 U.S.C. § 1227. This leaves the individual (assuming he is a nonimmigrant, not a lawful resident) with no legal standing either to be admitted to, or to remain in the United States. If he has already entered, DHS officials may then take him into custody and initiate removal proceedings.

Another possibility has to do with the nature and quality of evidence provided to U.S. officials (if any is in fact provided) by the foreign government. If that evidence is probative and shows that the alleged misconduct began prior to the individual first having sought a visa, he might also be charged with excludability and deportability for having concealed evidence of criminal activities when seeking the visa before a U.S. consular officer.

A last observation: it can be expected that, within the context of any attempt to remove the alien, he will seek to avail himself of every possible avenue of fighting to remain. Almost certainly that will include attempts to claim asylum and, failing that, withholding of removal or protection under CAT.

Once again, irony raises its ugly head, because in recent years the Obama White House, in the name of liberal and progressive values, has put its thumb on the scales of these mechanisms to weight them in favor of alien respondents in removal proceedings. In an arena such as that raised by Pro Public and the Stabile Center, this kind of heavy-handedness comes back to bite and it can be expected that removal proceedings against any alleged kleptocrats will be both protracted and convoluted, and won't likely result in the kind of prompt "pitch 'em out" that one senses is the intent of the Pro Publica article, no matter how much moral outrage or righteous indignation is mustered.