Discontinuance of Visa Issuance Under INA 243(d)

September 13, 2017

 

Countries that refuse or unreasonably delay accepting the return of their nationals who have been ordered removed from the United States are labeled "recalcitrant." Section 243(d) of the Immigration and Nationality Act (INA 243(d)) provides for "discontinuance" of visa issuance as a penalty for countries that refuse to take back their "citizens, subjects, nationals, and residents" who have been ordered deported from the United States.

On September 12, 2017, the Department of State announced in a press briefing that it had received instructions from the Department of Homeland Security to halt visa processing under INA 243(d) in the following four countries, in the following ways, effective September 13, 2017:

Cambodia - The U.S. embassy in Cambodia has discontinued the issuance of B visas for visitors for business or pleasure (B-1 and B-2) for Cambodian ministry of foreign affairs employees with the rank of director general and above and their families only. B visas for other individuals are not affected in Cambodia.

Eritrea - The U.S. embassy in Eritrea has discontinued the issuance of all B visas, both B-1 and B-2, for all applicants.

Guinea - the United States embassy in Guinea has discontinued the issuance of B, F, J, and M visas to Guinea government officials and their immediate family members. B, F, J, and M visas for other individuals are not affected in Guinea.

Sierra Leone - The United States embassy in Sierra Leone, has discontinued the issuance of B visas to Sierra Leone ministry of foreign affairs officials and immigration officials. B visas for other individuals are not affected in Sierra Leone.

A September 13, 2017 DHS press release confirms the above. These suspensions will remain in effect until the respective countries begin accepting their repatriated citizens to the satisfaction of the United States. The Department of State may also change the covered visa categories at any time.

News reports had previously indicated that the Trump administration was moving to invoke INA 243(d) against these four countries. The Washington Times first reported the story on August 22, 2017. Also see subsequent reports by CNN and Chronicle of Higher Education.

Background on INA 243(d)

Text of INA 243(d)

(d) Discontinuing Granting Visas to Nationals of Country Denying or Delaying Accepting Alien. On being notified by the [Secretary of Homeland Security] that the government of a foreign country denies or unreasonably delays accepting an alien who is a citizen, subject, national, or resident of that country after the [Secretary of Homeland Security] asks whether the government will accept the alien under this section, the Secretary of State shall order consular officers in that foreign country to discontinue granting immigrant visas or nonimmigrant visas, or both, to citizens, subjects, nationals, and residents of that country until the [Secretary of Homeland Security] notifies the Secretary that the country has accepted the alien.

The DOS Foreign Affairs Manual (FAM) provides a good description about the general scope and mechanics of INA 243(d) visa issuance discontinuation orders, at 9 FAM 601.12.

The FAM entry clarifies that discontinuing visa issuance under INA 243(d) is different from an "entry ban" under INA 212(f), or a visa denial.

  • An INA 243(d) visa discontinuation order is principally geographic in nature; it directs consular officers in a specific foreign country to discontinue granting visas to "citizens, subjects, nationals, and residents of that country."
  • It does not necessarily prohibit issuance of visas to individuals who are not citizens, subjects, nationals, and residents of that country, such as visitors who wish to apply for a visa as third-country nationals.
  • Likewise, it does not necessarily mean that a citizen, national, or resident of a subject country cannot obtain a visa at a U.S. consular post in a third country.

The scope of any visa discontinuation order, however, is usually tailored to the individual country. No further details have been provided on the scope of the orders that the administration may be considering for Cambodia, Eritrea, Guinea, and Sierra Leone.

Background on the use of INA 243(d)

INA 243(d) has been invoked before, but in those instances it was used only after diplomatic efforts have failed, and was narrowly applied to temporarily discontinue visa issuance for select individuals such as diplomats.

In April 2011, the Department of State (DOS) and the Department of Homeland Security (DHS) executed a "Memorandum of Understanding Concerning Repatriation," on measures the DOS Bureau of Consular Affairs and the DHS Immigration and Customs Enforcement (ICE) could take to address a number of recalcitrant countries. These measures included:

  • Establishing a target average travel document issuance time of 30 days
  • Issuing a demarche or series of demarches at increasingly higher levels
    • "A demarche is a formal diplomatic representation of one government’s official position, views, or wishes on a given subject to an appropriate official in another government or international organization. Demarches generally seek to persuade, inform, or gather information from a foreign government. Governments may also use a demarche to protest or object to actions by a foreign government." 5 FAH-1 H-613.
     
  • Holding joint meetings with the recalcitrant country's ambassador to the United States, the DOS Assistant Secretary for Consular Affairs, and the Director of ICE;
  • Considering discontinuation of visa issuance under INA 243(d);
  • Conducting interagency meetings to discuss withholding U.S. aid or other funding

More recently, the House Committee on Oversight and Government Reform's July 14, 2016 hearing shows a building Congressional concern over the years about country recalcitrance.