Recalcitrant Countries

The U.S. Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) mission is to protect the homeland through the arrest and removal of noncitizens who undermine the safety of our nation’s communities and the integrity of U.S. immigration laws.

• As a result, ICE removes noncitizens subject to final orders of removal to their country of citizenship.
• As part of the removal process, the U.S. government requests that foreign governments take appropriate steps to confirm the citizenship of individuals suspected to be their nationals — including conducting interviews when necessary; the timely issuance of travel documents, where appropriate; and the acceptance of the physical return of their nationals by scheduled commercial flights or, where necessary, special charter flights.
• Any lack of cooperation from the nation of origin delays, and in many cases, inhibits the removal process. Countries classified by ICE as uncooperative are also known as recalcitrant. Factors that could lead to a country being classified as recalcitrant include hindering ICE removal efforts by refusing to take the appropriate steps, as described above.

Zadvydas v. Davis

Uncooperative countries significantly exacerbate the challenges presented to ICE by the U.S. Supreme Court’s decision in Zadvydas v. Davis, 533 U.S. 678 (2001). In this case, the Supreme Court ruled that:

• With narrow exceptions, noncitizens with final orders of removal — including noncitizens determined to pose threats to the community or considered flight risks — may not be detained by ICE beyond a presumptively reasonable period of six months if there is no “significant likelihood of removal in the reasonably foreseeable future”
• Delays in issuing travel documents or denying the acceptance of their nationals complicate ICE’s removal efforts as the agency has been legally required to release thousands of noncitizens, including those with serious criminal convictions

Visa Sanctions

When specific countries deny or delay accepting their nationals with final orders of removal from the United States, the U.S. government may issue visa sanctions as a means of encouraging the recalcitrant country to cooperate. In accordance with Section 243(d) of the Immigration and Nationality Act (INA), the Secretary of Homeland Security notifies the Secretary of State that multiple governments have denied or unreasonably delayed the acceptance of a national or nationals ordered removed from the United States.

As a result, the Secretary of State may order U.S. consular officers at U.S. embassies and consulates in these countries to implement visa restrictions on certain categories of visa applicants. These sanctions may remain in place until the Secretary of Homeland Security notifies the Secretary of State that removal cooperation has improved to an acceptable level.