“Secretary of State Hillary Clinton allowed thousands of criminal aliens to be released because their home countries wouldn’t take them back, because they’re smart. They don’t want to take back killers and drug dealers and all of the people that we’re sending back. It was just reported, and Hillary took it — she said, ‘All right, look, bring them back, bring them back. They won’t take them. Bring them back.’”
— Donald Trump, remarks in Fletcher, N.C., Oct. 21
“There are at least 23 countries that refuse to take their people back after they’ve been ordered to leave the United States, including large number of violent criminals. … Due to a Supreme Court decision, if these violent defenders cannot be sent home, our law enforcement officers have to release them into your communities.”
— Trump, remarks in Phoenix, Aug. 31
This is a good example of how politicians can start earning Pinocchios through subtle — and not so subtle — changes in language. In August, during a speech on immigration, Trump correctly identified a problem: Undocumented immigrants who had committed crimes must be released if the home country will not take them back because the Supreme Court ruled that they could not be held indefinitely.
But look how Trump’s language has changed as the presidential race heads into its final weeks — now, it’s all Hillary Clinton’s fault. In fact, he even appears to quote her as saying “bring them back.”
The Supreme Court ruled in 2001, in Zadvydas v. Davis, that the United States can hold foreigners with deportation orders for only six months if their home country refuses to accept them. Between 2010 and 2014, 121 illegal immigrants released from detention were later charged in homicides, to the increasing irritation of lawmakers in Congress.
A section of the Immigration and Nationality Act — 243 (d) — does give the secretary of state the power to discontinue the granting of certain types of visas to countries that refuse to accept undocumented immigrants convicted of crimes. Such action was taken in 2001, against Guyana, and then most recently, on Oct. 1, against Gambia. When visas were denied to Guyana in 2001, within two months the country agreed to accept 112 illegal immigrants with removal orders.
But it should be little wonder that such draconian action occurs relatively rarely — and is levied against relatively small countries with little economic power. China, for instance, is another one of the 23 countries — and one can imagine that U.S. diplomats would be wary of banning visas from China when China and the United States have such a complex and important economic relationship. (Indeed, 1,900 travel document requests for criminal immigrants have been pending with China since 2008.) This reluctance has existed in both the George W. Bush and Obama administrations, under various secretaries of state.
“Use of this authority must be considered in light of both the potential impact it could have on U.S. foreign and domestic policy interests, particularly with respect to adverse effects on bilateral relations with a foreign partner, and whether visa restrictions will be an effective tool in gaining the country’s compliance,” Daniel H. Ragsdale, deputy director of U.S. Immigration and Customs Enforcement (ICE), told Congress in June.
In testimony before Congress on Sept. 22, ICE Director Sarah Saldana said the agency, working with the State Department, “has ramped up its efforts to improve the cooperation of recalcitrant countries.”
“In April, May and July 2016, I sent letters to DOS [the Department of State] to explore additional options regarding cooperation from Guinea, Cuba, Liberia, China, Afghanistan, Mali and the Gambia,” she said. “ICE, along with DOS, has also been more active in meeting with foreign governments to try to improve cooperation,” she added, citing the removal of eight Guinean nationals on Aug. 18.
So Trump has identified a real problem, one that U.S. officials say they are trying to address. But his criticism goes off the rails when he suggests that Clinton decided to allow these illegal immigrants to stay here. Presumably he remembers that he once noted a Supreme Court decision made it impossible to hold these people indefinitely.
Trump could argue that Clinton failed to invoke section 243 (d), a step that Secretary of State John F. Kerry has now taken. But actually, under Clinton, the State Department and ICE in 2011 signed a memorandum of understanding to increase pressure on recalcitrant countries. The MOU outlined a series of increasingly tougher steps that could be taken when dealing with countries that refuse to accept the return of their nationals, including:
• issue an official protest, known as a démarche, or series of démarches;
• hold a joint meeting with the country’s ambassador to the United States, assistant secretary for consular affairs and director of ICE;
• consider whether to provide notice of the U.S. government’s intent to formally
determine that the subject country is not accepting the return of its nationals and that
the U.S. government intends to exercise authority under section 243(d) to encourage compliance;
• consider visa sanctions under section 243(d) of the INA;
• and call for an interagency meeting to pursue withholding of aid or other funding.
In other words, under Clinton, the State Department and ICE agreed on a process that would gradually increase pressure on countries that refused to accept the return of criminal immigrants. At the end of that process, section 243(d) could be invoked.
Documents provided by ICE to lawmakers demonstrate how slowly the wheels of diplomacy can turn. In the case of Guinea, a démarche was issued in July 2010, a meeting with the ambassador was held in August 2011, another meeting was held in May 2012, a delegation from Guinea arrived in the United States in June 2012 to discuss the situation, a proposed MOU with Guinea was drafted and sent in April 2013 but received no response, more meetings were held in June 2015 with a new ambassador from Guinea, and in February 2016, a teleconference was held to discuss the removal of 15 individuals. Finally, in August, eight criminals were sent back — six years after an official protest about Guinea’s attitude was first issued.
One could argue that the process is too cumbersome, with the State Department apparently placing ICE’s concerns relatively low on its priority list. Still, five years later, the process set in place under Clinton finally has resulted in 243(d) sanctions against at least one country. Congressional pressure clearly also has played an important role.
One of the worst offenders is Cuba, as there are 35,000 Cubans that ICE would like to deport. The Obama administration did not make the issue a priority when relations were normalized with Cuba. That could be a fair criticism — but that happened after Clinton left the State Department.
The Trump campaign did not respond to a request for comment. Update, 4:15 p.m.: The Trump campaign provided this statement:
“Mr. Trump has explained that 243(d) ‘commands the Secretary of State to stop issuing visas to these countries’ and noted that ‘Secretary Hillary Clinton ignored this law and refused to use this powerful tool to bring nations into compliance.’ In 2010 alone, Secretary Clinton’s decision to ignore federal law allowed 4,927 illegal immigrants — 3,882 of whom are convicted criminals — to be released into the United States.”
Update, Oct. 26: Julie Kirchner, a Trump policy advisor, accused The Fact Checker of spreading “lies and misinformation” in a Medium post on this issue.
The Pinocchio Test
Trump would be well advised to return to his original language on this issue. He had framed it correctly as a situation created by the Supreme Court that has lacked high-level attention and focus since at least 2001. But when he suggests that Clinton herself is to blame, literally ordering criminal illegal immigrants back to the United States, he ends up with Three Pinocchios. Clinton in theory could have invoked 243(d), but that’s a dramatic step that is taken after other, less draconian efforts are exhausted. Moreover, under Clinton, the State Department and ICE formalized a process for increasing pressure on recalcitrant countries.
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