Commentary
U.S. Secretary of State Marco Rubio has had a very productive trip abroad, reaching agreements with both
El Salvador and
Guatemala to serve as “safe third countries” for migrants who have been deported from the United States. Those pacts are key to President Trump’s “mass deportation” plans because many countries won’t live up to their obligations to take their deported nationals back.
According to its
annual report, officers at U.S. Immigration and Customs Enforcement (ICE) were keeping track of more than 7.6 million removable aliens who were not in the agency’s custody at the end of fiscal year 2024, a nearly 25 percent increase over the year before.
Almost 1.427 million of those aliens—more people than live in New Hampshire, the
41st largest state—are under final orders of removal. All of them have received their full due process rights, and the only thing left for ICE to do is physically remove them from the United States.
By
law, those aliens were supposed to be taken into ICE custody and held until they could be removed, but two factors impeded their detentions.
First, the previous administration failed to ask Congress for sufficient detention space to hold them. Second, the Supreme Court ruled in
2001 that immigration authorities could not indefinitely detain any alien under a final order of removal whose physical deportation is not “reasonably foreseeable.”
Which brings me to those foreign governments that refuse to accept the return of their nationals, known colloquially as “noncooperative” or “
recalcitrant countries.”
In a July 2020
report, the nonpartisan Congressional Research Service identified 12 recalcitrant countries—including such major offenders as China, Russia, India, and Cuba—as well as more than 10 others that were “at risk of non-compliance” with their international obligations, including Ukraine and Vietnam.
Thereafter,
Venezuela began refusing Biden administration requests to take back its nationals, and other countries—most notably Guatemala—
suggested following Trump’s election that they would push back against the then president-elect’s mass deportation plans.
Of course, Trump cannot implement his removal strategy if there are no countries he can send deportees to, but the recalcitrant country issue gained new urgency for the White House after Congress passed and the president signed the “
Laken Riley Act.”
Among other things, that act empowers state attorneys general to sue the federal government to force ICE to detain criminal aliens under final orders of removal.
In response to a request from Rep. Tony Gonzales, ICE
revealed in September more than 425,000 convicted criminal aliens were on its non-detained docket.
Many are serving time in state or local facilities, some are still in removal proceedings, but at least some have final orders of removal, and thanks to the Laken Riley Act, ICE now needs to take them into custody and remove them or risk having to explain to a judge why it can’t.
When Congress wrote the Immigration and Nationality Act (INA), it envisioned that foreign countries, and in particular countries with which the United States has poor diplomatic relations, would refuse to accept their deportees.
Consequently, it created a mechanism at
section 243(d) of the INA under which the State Department would stop issuing visas to nationals of recalcitrant countries. Both the
George W. Bush and Obama administrations used that power selectively, to sanction just one country each, but Trump used it more broadly and effectively during his first term.
Just the threat of sanctions has prompted
India and
Venezuela to agree to accept some returns, but other recalcitrant countries are unlikely to ever comply, and a visa threat against China would likely spur a backlash from U.S. companies and universities that have come to depend on a steady supply of workers and students from that country.
This is why it’s so important that Rubio has now reached agreements with El Salvador and Guatemala to accept not only their own returned aliens, but deportees from third countries as well.
Under
section 241(b) of the INA, ICE is supposed to send deportees back to their countries of nationality, or in the case of arriving aliens, to the country they boarded the conveyance that brought them here, but when all else fails, the section of the act allows the agency to remove aliens to any country that will take them.
Removing criminals is not just a public safety issue. Deportation is a crucial element of border security because if migrants know they can’t be removed after entering illegally, they are much more likely to come.
Thanks to Secretary Rubio and the governments of El Salvador and Guatemala, the Trump administration now has a place where it can send deportees whose own countries won’t take them back. That will make our streets safer and our borders more secure—and spare ICE court costs.
Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
