The State Department is thwarting efforts to deport immigrants to China, Guinea, Liberia and other countries that are reluctant to take back their own citizens convicted of crimes — forcing immigration agents to release often-violent criminals back onto the streets, U.S. government documents show.
The Homeland Security Department’s deportation agency has filed several petitions asking the State Department to take steps to punish recalcitrant countries, including the ultimate punishment of denying visas to visitors from those countries. But the department has failed to follow through on the plain language in federal law, saying it doesn’t want to anger foreign governments by withholding the visas.
In the meantime, U.S. Immigration and Customs Enforcement is forced to release the immigrants, many of whom commit further serious crimes. The recidivism rate is 30 percent or higher for criminal aliens released from detention.
And the backlog is growing: Some 35,000 immigrants with criminal records are awaiting deportation back to Cuba, while the number of migrants awaiting deportation to China stands at 1,900, ICE said in documents provided to the House Oversight and Government Reform Committee, after questioning by Chairman Jason Chaffetz, Utah Republican, and ranking Democrat Elijah E. Cummings of Maryland.
The two lawmakers are demanding that the State Department explain why it has refused to deny visas or block funding to recalcitrant countries, as the law requires.
The State Department declined to answer a series of questions from The Washington Times. Instead, it released a response that insisted the department tried to work with Homeland Security “on a case-by-case basis, taking into account all of the factors surrounding each circumstance.”
The issue came to a head last year when Jean Jacques, a Haitian man who served time for attempted murder but whose home country refused to take him back, was released and then went on to kill a young woman in Connecticut. Haiti claimed it wasn’t sure of Jacques’ citizenship.
Connecticut lawmakers demanded an investigation into the incident, and then said all sides need to do more to get other countries to live up to their obligations.
“We have points of leverage that we can use. It doesn’t have to rely simply on our persuasive power. We can deny visas, we can suspend aid,” Sen. Richard Blumenthal, Connecticut Democrat, told Homeland Security Secretary Jeh Johnson at a hearing last week.
Senate Judiciary Committee Chairman Chuck Grassley, Iowa Republican, expressed his own frustration with what he called inadequacy of the administration’s efforts. In a letter to Mr. Johnson late last month, he hinted that he would consider removing the executive branch’s discretion on whether to impose the visa penalties on recalcitrant countries if the situation does not improve.
“Lives are being lost, the public’s safety is at risk, and American families are suffering,” Mr. Grassley wrote. “It cannot continue.”
Mr. Johnson insisted he is doing what he can but said it is up to the State Department to apply the most powerful tools.
“Very clearly, this is a work in progress and at some point, I’m going to advocate that we use the ultimate sanction available to us, which is to deny visas to these countries if we don’t see more progress,” he said.
Analysts disagree with Mr. Johnson. Federal law says Homeland Security “shall” deny visas once Mr. Johnson invokes Section 243(d) of the Immigration and Nationality Act and that he should use that power and force the State Department to comply.
Blocking of visas has been used only once — by the George W. Bush administration in 2001. Guyana was refusing to take back its citizens, and a backlog of some 113 Guyanese were awaiting deportation.
The State Department stopped issuing visas to Guyanese government officials and their families, and Guyana quickly yielded. Within two months, 112 of the backlogged aliens had been cleared to be shipped back — a 99 percent success rate.
Still, that episode has done little to sway the State Department, which says visa denial is too blunt.
“The Department of State believes continued close interagency cooperation and coordinated approaches, both in Washington and at posts overseas, form the best strategy to make progress on repatriations,” said Nicole Thompson, a spokeswoman. “Considerations of visa restrictions are not made lightly, and are made in close coordination with other agencies.”
ICE tried to get things moving with a 2011 memorandum of understanding to promote better cooperation with the State Department. It established a series of steps, including joint meetings with foreign countries’ ambassadors and issuing demarches, which are essentially diplomatic warnings.
Two demarches have been issued in the past 18 months: one to Algeria and one to Iraq, both sent in March 2015.
Cuba is the worst offender, according to ICE, with some 35,000 convicted criminals ICE would like to deport, but which Havana refuses to take back. Cuban authorities even rejected an offer to deport just 10 percent of those criminals a year.
The Obama administration last year agreed to extend more normalized relations to Cuba but did not make repatriation a priority. ICE was left out of those negotiations, and the issue was never solved.
That leaves the U.S. with few options. Last year, the Homeland Security Department threatened to block an increase in Cuban student and exchange program visas but relented, hoping it would earn better cooperation from Cuba. So far, it hasn’t.
“DHS and ICE have exhausted standard diplomatic approaches and seek alternative measures that fall within the purview” of the State Department, ICE Director Sarah Saldana said in an April letter to the State Department.
She has written similar letters on Guinea, China and Liberia, which are also among the worst of the 23 countries ICE deems uncooperative in deportations. Another 62 countries are on ICE’s watch list but whose records aren’t considered bad enough to be labeled uncooperative.
Haiti, which refused to accept Jacques, the man who killed the woman in Connecticut, is not on the worst offenders’ list because it generally accepts deportees. ICE said a monthly charter flight returns Haitians, and Haitian consular officials are helping conduct interviews to take their people back.
In the case of China, ICE thought it had a breakthrough last year after Mr. Johnson raised the issue of cooperation with Gao Shengkun, the Chinese minister of public security, and the two sides agreed to regular charter flights to ship Chinese criminals home.
After two flights were scheduled, the Chinese balked, saying the U.S. misunderstood the agreement and that it was the Ministry of Foreign Affairs, not Public Safety, that must be involved in deportations.
As of May, some 1,900 convicts were awaiting deportation, with some of the requests dating as far back as 2008.
Jessica Vaughan, policy studies director at the Center for Immigration Studies, said ICE often gets blamed, but the issues need to be solved at a higher level.
“They keep getting blown off by the State Department,” she said. “This is a situation where it needs to be raised to a higher level, and someone needs to show some leadership, such as the president.”