Once an illegal alien has moved through the long, arduous deportation process, there still remains one final hurdle after final removal orders are issued. Does their home country take them back? Often, foreign countries refuse to take back their citizens for a whole host of reasons, including criminal history, gang affiliations, ties to terrorist organizations, or links to espionage activities, which leaves them stuck in limbo in the United States. According to a House Judiciary Committee report, as of December 2023, there were 1,323,264 illegal aliens with final orders of removal who remained in the United States. When a country refuses to accept an alien with final removal orders, that nation is deemed recalcitrant by Immigration and Customs Enforcement (ICE). The Immigration and Nationalities Act (INA) provides broad authority for Executive Branch agencies to remove certain foreign nationals from the United States. Pursuant to Section 243(d) of the INA, upon being notified by the Secretary of Homeland Security that a government of a foreign country denies or unreasonably delays accepting an individual 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, 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 individual.
Supreme Court action also hamstrings what ICE is allowed to do once final removal orders are issued. Based on the Supreme Court’s decision in Zadvydas v. Davis, aliens with final orders of removal, including aliens determined to pose a threat to the community or considered a flight risk, may not be detained beyond a presumptively reasonable period of six months if there is no “significant likelihood of removal in the reasonably foreseeable future.” When recalcitrant countries delay or refuse to issue travel documents to their nationals or refuse to accept their nationals within this time period, ICE may be required to release dangerous criminals into communities across the United States.
Prior to 2017, 243(d) was not often used. The United States would engage in endless diplomatic dialogues in hopes of removing these criminal foreign nationals, often with little success. In January 2017, just one week into his first term, President Trump issued an Executive Order directing the Departments of State and Homeland Security to crack down on recalcitrant countries using 243(d) as an enforcement mechanism. At the time of the order, there were 20 countries designated by DHS. With the threat and implementation of visa sanctions, that number was reduced by over half to 9 countries by the end of Trump’s first term: Cuba, Eritrea, Iran, China, Hong Kong, Burma, Cambodia, Vietnam, and Laos.
The recent surge in border crossings has this issue back in the news, with a group of 14 Members of Congress pressuring the Biden Administration to take this issue more seriously. Under the Biden Administration, the list of recalcitrant countries has ticked up to 13. Most concerning about the Administration’s lack of removal efforts is the recent rise of Chinese nationals encountered at the southern border. As of May, a record of over 30,000 Chinese-national encounters occurred at the border just this year.
China is notoriously one of the most difficult countries to repatriate their citizens. ICE only removed 288 Chinese nationals last year, of the over 100,000 Chinese nationals with final orders of removal that remain in the United States.
The Biden Administration has also removed visa sanctions on Laos, although they have not moved an inch in terms of repatriating any of their citizens, instead claiming that further dialogue is the best approach.
Recently, according to a House Judiciary Committee report the Biden-Harris Administration has released at least 99 illegal aliens on the terrorist watch list into the country.
An effective removal process is needed for a functional and credible immigration system. The ruling of Zadvydas mandates the government release aliens even if they are dangerous criminal foreign nationals, as were both petitioners in the Zadvydas case. We must support strong and fast repatriation efforts using 243(d) and all available measures to remove criminal aliens from our nation, enforce our laws, and protect our people.
