On September 11, 2018, Stephen Dinan of The Washington Times published an interesting report about Iraq's purported recalcitrance in accepting the return of its nationals who have been ordered removed from the United States [link].[1] In this article, we will discuss Dinan's report and include additional citation to and analysis of relevant source materials.
As we have discussed extensively on site, President Donald Trump has issued three Executive Orders restricting the entry of nationals of certain countries, commonly known as the “travel bans.” On January 27, 2017, President Trump issued the first of these three Executive Orders (13769), which included Iraq among the seven countries subject to restrictions [PDF version]. On March 6, 2017, President Trump issued the second “travel ban” Executive Order (13780), which removed Iraq from the list of seven countries subject to restrictions and leaving the provision that Iraqi nationals should be subjected to additional scrutiny [PDF version] [see section].
Executive Order 13780 listed several factors that influenced President Trump's decision to lift the restrictions on entry of Iraqi nationals. Among these, he stated that “the Iraqi government has expressly undertaken steps to enhance … the return of Iraqi nationals subject to final orders of removal.”
After the issuance of Executive Order 13780 in March 2017, the U.S. Government pursued the removal of Iraqi nationals that it had not previously been able to remove, evidently acting on the basis that a perceived understanding had been reached with the Iraqi Government. However, Dinan reports now that “evidence has emerged suggesting that either Iraq has backslid or the deal was never what the administration said it was in the first place.” Specifically, he reported that “Iraq has told the U.S. Immigration and Customs Enforcement [(ICE)] that it will not take back any deportees who don't volunteer to go back [to Iraq].”
Nevertheless, the third version of President Trump's “travel ban”, issued on September 24, 2017, contained a note on Iraq similar to the March 6 Executive Order. However, while it discussed many factors, it specifically credited Iraq with making strides in accepting the return of its nationals ordered removed, while also providing that nationals from Iraq should be subjected to additional vetting scrutiny. It is possible that if the U.S. Government was no longer satisfied with Iraq's progress in accepting the return of its nationals, it began to reweigh the equities in exempting Iraq from entry restrictions in light of other negative factors.
Dinan reported that in June 2018, ICE registered a protest with the Iraqi Government regarding its reluctance to accept the return of its nationals who are subject to final orders of removal. The Iraqi government responded by stating that it would only accept those who volunteer to return to Iraq, and it relayed these instructions to all of its embassies and consulates around the world.
While we do not know exactly what understanding had been reached between the U.S. and Iraqi Governments between February 27, 2017, and March 6, 2017. However, there is evidence beyond President Trump's Executive Order 13780 that the U.S. Government had, in fact, believed that this agreement included a provision that the Iraqi Government would accept the return of its nationals ordered removed. Dinan noted that a Department of Homeland Security (DHS) official stated at the time that “Iraq has agreed to the timely return and repatriation of its nationals who are subject to final orders of removal.” Furthermore, this DHS official described it as “a very, very important provision,” perhaps indicating its significance in President Trump's decision to remove Iraq from the countries whose nationals were subject to entry restrictions.
Dinan noted that, notwithstanding the language of Executive Order 13780 and statements from DHS officials, no further details about the Iraq agreement were released at the time. Furthermore, in ongoing court proceedings which have stymied DHS's attempt to remove hundreds of Iraqi nationals, Dinan stated that “[d]uring the legal discovery process, it became clear that Iraq and the Trump administration had no formal written agreement. Instead, they shook hands on a deal on which they no longer share the same view.” In on-going court proceedings, the American Civil Liberties Union (ACLU) is alleging that the Government lied about its deal with Iraq. The ACLU is seeking sanctions against certain DHS officials, and is also pursuing the release of more than 100 Iraqis because the Government cannot remove them to Iraq within six months, as required under current Supreme Court precedent. (Dinan notes that some of these Iraqi detainees have serious criminal convictions on their records, including rape, drug trafficking, and murder). The government has not yet submitted a formal response.
Regardless of the nature of the original agreement reached between the U.S. and Iraqi Governments, Iraq may be subject to several visa penalties if it continues to refuse to accept the return of its nationals who are subject to final orders of removal. There are two potential types of sanctions that could be imposed.
First, section 243(d) of the INA allows the DHS and U.S. Department of State (DOS) to place visa sanctions on countries that refuse to accept the return of their nationals ordered removed. The Trump Administration has made liberal use of section 243(d), thus far having imposed sanctions of varying severity on six countries [see blog and see blog].
Second, President Trump could impose entry restrictions similar to those that he imposed in Executive Order 13769 by invoking section 212(f) of the INA, which requires only that the President find that entry of certain individuals is not in the interests of the United States.
Finally, we cannot discount the possibility that the dispute could be resolved through other means. For example, in October 2017, we discussed negotiations between the United States and China on resolving similar issues [see blog]. Thus far, China has not been subjected to section 243(d) sanctions. Furthermore, the Trump Administration has stated that it has worked with other countries to resolve these issues without resorting to section 243(d) visa sanctions.
In conclusion, it is impossible to know at this time what actions, if any, will be taken against Iraq for its unwillingness to accept the return of its nationals in a reasonable timeframe. Regardless of the nature of the agreement reached between Iraq and the Trump Administration, the conduct described in the article has resulted in section 243(d) sanctions for several other countries. The issue will bear watching going forward, and we will update the website with new information as it becomes available.
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- Dinan, Stephen. “Iraq reneges on travel ban deal with Trump, refuses to accept deportees.” The Washington Times. Sep. 11, 2018. https://www.washingtontimes.com/news/2018/sep/11/iraq-trump-administration-disagree-terms-travel-ba/
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