Section 203 of Division O of the recently enacted
Consolidated
Appropriations Act, 2016, which funds the U.S. government for the remainder
of the current 2016 fiscal year (through September 2016), also adds new
restrictions on use of the Visa Waiver Program (“VWP”) that exists under
section 217 of the Immigration and Nationality Act (INA), 8 U.S.C. §1187. The title of Section 203 is “RESTRICTION ON
USE OF VISA WAIVER PROGRAM FOR ALIENS WHO TRAVEL TO CERTAIN COUNTRIES”, and it
appears to have been inspired by reports that the November 2015 terrorist
attacks in Paris were
carried out by French and Belgian nationals, many of whom had traveled to Syria.
However, the text of the law as enacted
goes further than the title. In
particular, the amendments that Section 203 makes to INA 217 apply to certain
people who may never have been to any of the countries with which Congress was
concerned in enacting the bill, if they are nationals of one of those countries
as well as a VWP country. As this post will explain, this portion of
Section 203 could have an unfair and at times truly bizarre impact.
The VWP allows citizens of certain countries
designated by the Secretary of Homeland Security (formerly by the Attorney
General), in consultation with the Secretary of State, to enter the United
States as visitors without the need to apply for a visa at a U.S. consular post
abroad. A list of currently eligible
countries is available on
the Department of State website and from
CBP as well. VWP entrants are
limited to 90-day admissions pursuant to INA
§217(a)(1), must waive various rights to contest removal under INA
§217(b), and must apply for advance clearance through the Electronic System for Travel
Authorization (ESTA) run by U.S. Customs and Border Protection (CBP), but
the ability to visit without going through the consular visa application
process is still an attractive option for citizens of qualifying countries.
New section 217(b)(12) of the INA, as enacted by
section 203 of Division O of the Consolidated
Appropriations Act, 2016, adds the following requirements for use of the
VWP:
(12) NOT PRESENT IN IRAQ, SYRIA, OR ANY OTHER COUNTRY
OR AREA OF CONCERN.—
(A) IN GENERAL.—Except as provided in
subparagraphs (B) and (C)—
(i) the alien has not been present, at any time
on or after March 1, 2011—
(I) in Iraq or Syria;
(II) in a country that is designated by the
Secretary of State under section 6(j) of the Export Administration Act of 1979
(50 U.S.C. 2405) (as continued in effect under the International Emergency
Economic Powers Act (50 U.S.C. 1701 et seq.)), section 40 of the Arms Export
Control Act (22 U.S.C. 2780), section 620A of the Foreign Assistance Act of
1961 (22 U.S.C. 2371), or any other provision of law, as a country, the
government of which has repeatedly provided support of acts of international
terrorism; or
(III) in any other country or area of concern
designated by the Secretary of Homeland Security under subparagraph (D); and
(ii) regardless of whether the alien is a
national of a program country, the alien is not a national of—
(I) Iraq or Syria;
(II) a country that is designated, at the time
the alien applies for admission, by the Secretary of State under section 6(j)
of the Export Administration Act of 1979 (50 U.S.C. 2405) (as continued in
effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et
seq.)), section 40 of the Arms Export Control Act (22 U.S.C. 2780), section
620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), or any other
provision of law, as a country, the government of which has repeatedly provided
support of acts of international terrorism; or
(III) any other country that is designated, at
the time the alien applies for admission, by the Secretary of Homeland Security
under subparagraph (D).
(B) CERTAIN MILITARY PERSONNEL AND GOVERNMENT
EMPLOYEES.—Subparagraph (A)(i) shall not apply in the
case of an alien if the Secretary of Homeland
Security determines that the alien was present—
(i) in order to perform military service in the
armed forces of a program country; or
(ii) in order to carry out official duties as a
full time employee of the government of a program country.
(C) WAIVER.—The Secretary of Homeland Security
may waive the application of subparagraph (A) to an alien if the Secretary
determines that such a waiver is in the law enforcement or national security
interests of the United States.
(D) COUNTRIES OR AREAS OF CONCERN.—
(i) IN GENERAL.—Not later than 60 days after the
date of the enactment of this paragraph, the Secretary of Homeland Security, in
consultation with the Secretary of State and the Director of National
Intelligence, shall determine whether the requirement under subparagraph (A)
shall apply to any other country or area.
(ii) CRITERIA.—In making a determination under
clause (i), the Secretary shall consider—
(I) whether the presence of an alien in the
country or area increases the likelihood that the alien is a credible threat to
the national security of the United States;
(II) whether a foreign terrorist organization has
a significant presence in the country or area;
and
(III) whether the country or area is a safe haven
for terrorists.
Although INA §217(b)(12)(A)(i), consistent with
the title of new INA §217(b)(12), bars use of the VWP only persons who have
actually been present in Iraq or Syria or another country of concern, after
March 1, 2011, other than as a government employee or military member of a VWP
country, new §217(b)(12)(A)(ii) goes significantly further than that.
Quite apart from whether someone was present in Syria, Iraq, or another covered
country after March 2011 – or has ever been present there – they will be
excluded from use of the VWP if, in addition to being a citizen of a
VWP-qualifying country, they are also a national of Iraq, Syria, or another
covered country. The only exception will be if a waiver is granted to a
particular person under INA §217(b)(12)(C) on the basis that “such a waiver is
in the law enforcement or national security interests of the United States”.
The other covered countries besides Iraq and
Syria, pursuant to new INA 217(b)(12)(a)(i)(II)-(III) and (a)(ii)(II)-(III),
include those designated as state sponsors of terrorism by the State Department
under several named laws, as well as any countries the Secretary of Homeland
Security may later designate under §217(b)(12)(D). The State Department’s
list of designated state
sponsors of terrorism currently includes Iran, Sudan, and Syria.
Syria is already named in INA §217(b)(12)(a)(i)(I) and (a)(ii)(I), but the
other two are not. So in total, new INA §217(b)(12)(A)(i) currently
applies to nationals of Syria, Iraq, Iran, and Sudan.
According to the Refworld web
service of the Office of the UN High Commissioner for Refugees (UNHCR), Article
3.A. of the Syrian
nationality law provides that in addition to other sources of nationality,
“Anyone born inside or outside the country to a Syrian Arab father” has Syrian
nationality. Article 10 of that same law allows a Syrian Arab to forfeit
Syrian nationality upon acquiring foreign nationality, but only “provided that
a decree has been issued, based on his request and upon recommendation by the
Minister [of the Interior], allowing him to abandon his nationality after
having fulfilled all his duties and obligations towards the state.” Thus,
it appears that one who is born to a Syrian father, and may never have been to
Syria, cannot simply avoid or give up Syrian nationality because he no longer
wants it, particularly if he has not “fulfilled all his duties and obligations
towards the state.” It seems likely, particularly in light of the similar
Iranian provision discussed below, that this requirement to have fulfilled
one’s "duties and obligations towards the state" is a reference, at
least in part, to military service obligations.
Iranian
nationality law, as reported by Princeton
University’s Iran Data Portal, similarly provides for automatic acquisition
of nationality through one’s father and does not allow loss of nationality at
will. Article 976, Section 2, of the law bestows Iranian nationality on
“Those whose fathers are Iranians, regardless of whether they have been born in
Iran or outside of Iran.” Pursuant to Article 988, Iranian nationality
can only be abandoned by those who “have reached the full age of 25”, and then
only if “the Council of Ministers has allowed their renunciation of their
Iranian nationality”, they have undertaken to transfer all rights they possess
or may inherit to land in Iran, and “they have completed their national
military service.” Those born to Iranian fathers who are under 25, have
not completed their military service, do not wish to give up land in Iran, or
incur the displeasure of the Council of Ministers, are evidently stuck with
their Iranian nationality whether they want it or not.
Iraqi nationality law as
reported by Refworld is not quite as bad in this regard, but Article 10(I) of
that law does require a written renunciation of one’s Iraqi nationality before
even one who has acquired a foreign nationality will lose his or her Iraqi
nationality. It is unclear how a child could meaningfully execute such a
renunciation, and an adult who becomes a citizen of a Visa Waiver Program
country may never have thought to do so, even if he or she had no intention of
going back to Iraq and never did.
Sudanese nationality law,
as reported by Refworld, makes it easier to give up nationality than in the
case of Iran or Syria, but not as easy as in the case of Iraq. Section
4(1)(b)(i) includes among those who are Sudanese nationals anyone whose “father
was born in Sudan.” Under Section 10(a), the President of Sudan “may
decide to revoke Sudanese nationality from” anyone over the age of majority who
is proven to have “made a declaration renouncing his Sudanese nationality”, but
the President is specifically given the power to “reject such a declaration if
it was made during any war which Sudan participated in.” The law does not clarify
whether the President can simply “decide” not to revoke nationality from one
who has made a declaration of renunciation even absent such a war.
Thus, many citizens of VWP countries who lack any
continuing meaningful ties to a country of concern, or never had any such ties,
may be affected by the prohibition of INA §217(b)(12)(A)(ii). Children
born to a Syrian, Iraqi, Iranian, or Sudanese father, who are too young to have
signed written statements giving up their citizenship, will be barred from the
VWP. Adults who have lived their entire lives in VWP countries, but were
born to Syrian or Iranian fathers, and could not give up their citizenship
under Syrian or Iranian law because they did not fulfill their military service
obligations to Syria or Iran, will be barred from using the VWP. This is
a rather bizarre result, since one doubts that Congress would have wanted to
penalize people for not serving in the Syrian or Iranian military, had
the issue been thought through. Perhaps the Secretary of Homeland
Security could issue some sort of collective waiver under §217(b)(12)(C), on
the basis that it would be in the national security interests of the United
States not to encourage service by nationals of VWP countries in the Syrian and
Iranian militaries, but that would be a rather cumbersome way to deal with a
problem that should not exist in the first place.
Lest this discussion of what one might call
involuntary nationality be thought overly academic, it is worth noting that
U.S. immigration law does recognize, in at least one other context, the
possibility that a person can be penalized for the existence of a nationality
which the U.S. government believes them to hold but which they have never
sought to use. In Matter of B-R-,
26 I&N Dec. 119 (BIA 2013), an asylum applicant who had been born
in Venezuela, and was a citizen of Venezuela, was denied asylum after the
Department of Homeland Security (DHS) “submitted evidence that [he] was a
citizen of Spain by birth, because his father was born in Spain and was a
citizen of that country.” 26 I&N Dec. at 120. Since the
applicant in Matter
of B-R- did not contest on appeal that he was a citizen of Spain as found
by the Immigration Judge, and since he had not argued that he had
unsuccessfully attempted to avail himself of the protection of Spain, he was
held to be ineligible for asylum because he lacked a fear of persecution in
Spain. Matter of B-R-,
26 I&N Dec. at 122 It would seem, under the logic of Matter of B-R-,
that INA §217(b)(12)(A)(ii) will apply equally to those who are citizens of Syria,
Iraq, Iran, or Sudan solely because of the status of their fathers.
It is true that those barred from the VWP by
their Syrian, Iraqi, Iranian or Sudanese dual nationality will not actually be
barred from visiting the United States. Rather, persons barred from the
VWP on account of their dual nationality will be able to apply for nonimmigrant
B-1 or B-2 (or combined B-1/B-2) visas at a U.S. consular post, just like those
who are not citizens of VWP countries. But to subject citizens of
friendly nations to this additional hurdle solely because of their paternity
and possibly failure to satisfy obligations to Syria or Iran, as
§217(b)(12)(A)(i) in effect does in some cases, is inappropriate. People
who were born in Belgium or France or the UK or some other VWP country and have
never left, or have lived in a VWP country for decades and never traveled to a
country of concern, should not be precluded from using the VWP because of who
their fathers were.
Moreover, because visa waivers are often offered on
a basis of reciprocity, INA §217(b)(12)(A)(ii) could have a mirror-image effect
on innocent U.S. citizens with the requisite parentage. European
Union regulations, for example, as
pointed out by NIAC Action (the sister organization of the National Iranian
American Council), already provide for the imposition of visa requirements on
citizens of countries who have themselves imposed visa requirements on EU
nationals. So it is possible that the restrictions imposed by U.S. law on
citizens of VWP countries who have dual citizenship in a country of concern,
and may be unable to get rid of it, could be imposed by EU countries on U.S.
citizens who have such dual citizenship.
Before INA §217(b)(12)(A)(ii) and the rest of
Section 203 of the Consolidated Appropriations Act became law, AILA
warned against hastily enacting its language in the form of what was then H.R.
158 unless the bill were modified and clarified in a variety of respects (including the nationality provision and other aspects such as legitimate travel to the countries of concern by journalists and humanitarian workers and so on).
It is unfortunate that Congress did not heed this warning. The statute
should be amended, whether by this Congress or by a future Congress, so that it
does not bar from the VWP nominal citizens of covered countries who have not
recently been to those countries. Other
changes to the language produced by the same rushed process that gave us the
above-discussed absurd results, although outside the scope of this blog post, may also be warranted.
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