Less than six months into his current term in office, President Donald Trump has already imposed visa and travel restrictions on nationals from eleven countries in North and Sub-Saharan Africa traveling to the United States. In official statements, the Trump Administration has made several arguments for why such country-specific visa and travel restrictions are necessary. On national security grounds, the administration maintains that some countries are failed states, state sponsors of terrorism, and/or have a significant terrorist presence. On other grounds, the administration states that some countries have untrustworthy screening and vetting processes, authorities or governments that refuse or significantly delay accepting the return of their nationals eligible for deportation, and/or nationals who have high overstay rates. The US Congress may want to examine a couple of important things about the recent visa and travel restrictions on African countries. First, it might wish to examine whether the administration has used the correct criteria for imposing visa and travel restrictions on foreign nationals. Second, it might want to examine whether the administration has selected African countries that best match those criteria. In the long run, the US Congress may wish to do more. For example, it may want to consider limiting the broad discretion that the executive branch currently has for imposing visa and travel restrictions. That could be achieved through the creation of a unified statutory framework for visa and travel restrictions.
National Security Cases
On unequivocally national security grounds, the Trump Administration has imposed visa and travel restrictions on nationals from two African countries. The administration has imposed visa and travel restrictions on nationals from Libya based on the argument that the country has a significant terrorist presence. It has imposed visa and travel restrictions on nationals from Somalia based on the arguments that the country is a failed state and has a significant terrorist presence. Most of those claims appear to be valid:
- The Fragile States Index ranks Somalia as the most fragile independent state in the world.
- The Global Terrorism Index holds that there is a high impact of terrorism on Somalia. Conversely, it also holds that there is a low impact of terrorism on Libya.
- The Global Conflict Tracker indicates that there are active conflicts in Libya and Somalia, respectively.
Other Cases
On other grounds, the administration has imposed visa and travel restrictions on nationals from eleven African countries. The administration argues that visa and travel restrictions on nationals from Eritrea, Libya, Somalia, and Sudan are necessary because those countries have untrustworthy screening and vetting processes. It argued that visa and travel restrictions on nationals from Eritrea, Sierra Leone, Somalia, and South Sudan are necessary because authorities in those countries are uncooperative in accepting their nationals who meet the criteria for deportation. And, it has argued that visa and travel restrictions on nationals from Burundi, Chad, Equatorial Guinea, Eritrea, the Republic of Congo, Sierra Leone, Sudan, and Togo are necessary because those countries have high visa overstay rates. At least some of those claims appear to be valid:
- The WJP Rule of Law Index maintains that the Republic of the Congo and Sudan have a relatively weak adherence to the rule of law. However, the adherence to the rule of law in the other cases is unclear. However, Burundi, Equatorial Guinea, Eritrea, Libya, Somalia, and South Sudan were not included in the index.
- US Immigration and Customs Enforcement (ICE) reportedly made the recent determination that Eritrea and Somalia are uncooperative countries and South Sudan is at risk of becoming a recalcitrant country. However, no mention is made of Sierra Leone.
- The Department of Homeland Security reports that Chad has an overall overstay rate of more than 45%, and Equatorial Guinea, Eritrea, and the Republic of Congo have total overstay rates of greater than 20%. However, it reports that Burundi, Sierra Leone, and Togo have total overstay rates of less than 20%.
Issues for Congress
The US Congress may want to consider whether the criteria selected by the Trump Administration are the key factors for imposing visa and travel restrictions on foreign nationals. For example, some argue that the presence of an active conflict should be a key factor in determining whether visa and travel restrictions are imposed on foreign nationals. According to the Global Conflict Tracker, five African countries would match that potential criteria. They include Chad, Libya, Somalia, South Sudan, and Sudan. However, the White House made no mention of the presence of an active conflict in the fact sheet on the recent imposition of visa and travel restrictions on foreign nationals.
Separately, the US Congress may want to consider whether the African countries selected by the Trump Administration are the most appropriate. That is because there appear to be stronger matches for the selected criteria than some of the selected countries:
- The Global Terrorism Index found that Burkina Faso had the highest impact of terrorism in the world. Compared to Libya (2.469), it also found that Mali (7.998), Niger (7.274), Nigeria (7.575), Cameroon (6.98), Democratic Republic of the Congo (6.514), and Mozambique (6.514) had a higher impact of terrorism.
- The WJP Rule of Law Index found that the Democratic Republic of the Congo (0.34) had lower adherence to the rule of law than either Sudan (0.35) or the Republic of the Congo (0.40). It also found that Cameroon (0.36), Egypt (0.35), Ethiopia (0.37), Mali (0.39), Mauritania (0.36), Mozambique (0.39), and Uganda (0.39) had lower adherence to the rule of law than the Republic of the Congo (0.40).
- Unlike Sierra Leone, the US Immigration and Customs Enforcement (ICE) made a recent determination that the Democratic Republic of the Congo and Ethiopia are uncooperative countries, and Burkina Faso, Gabon, and Gambia are at risk of becoming recalcitrant countries.
- The US Department of Homeland Security reports that Djibouti (23.9%) and Liberia (19.4%) have higher total overstay rates than Sierra Leone (15.43%).
These discrepancies beg important questions about the coherence, congruence, and consistency of the aforementioned visa and travel restriction determinations.
Requests for Information
To address these questions, the US Congress may want to consider requesting the following information from the executive branch:
- Given the fragility of their states, why did the White House not declare state failure to be one of the reasons why it imposed visa and travel restrictions on nationals from Chad, South Sudan, and Sudan?
- Given the fragility of their states, why did the White House not impose visa and travel restrictions on nationals from the Central African Republic and the Democratic Republic of the Congo?
- Given the current impact of terrorism, why did the White House declare the presence of terrorists to be one of the reasons why it imposed visa and travel restrictions on nationals from Libya?
- Given the current impact of terrorism, why did the White House not impose visa and travel restrictions on nationals from Burkina Faso, Cameroon, Democratic Republic of the Congo, Mali, Mozambique, Niger, and Nigeria?
- Given their exposure to active conflict, why did the White House not declare the presence of an active conflict to be one of the reasons why it imposed visa and travel restrictions on nationals from Chad, Libya, Somalia, South Sudan, and Sudan?
- Given their exposure to active conflict, why did the White House not impose visa and travel restrictions on nationals from Burkina Faso, Central African Republic, Democratic Republic of the Congo, Ethiopia, Mali, Niger, and Nigeria?
- Given their adherence to the rule of law, why did the White House not impose visa and travel restrictions on nationals from Cameroon, the Democratic Republic of the Congo, Egypt, Ethiopia, Mali, Mauritania, Mozambique, and Uganda?
- Given its immigration cooperativeness, why did the White House declare the historic failure to accept removable nationals to be one of the reasons for imposing visa and travel restrictions on nationals from Sierra Leone?
- Given their immigration cooperativeness, why did the White House not impose visa and travel restrictions on nationals from Burkina Faso, the Democratic Republic of the Congo, Ethiopia, Gabon, and Gambia?
- Given their total overstay rates, why did the White House impose visa and travel restrictions on nationals from Burundi, Sierra Leone, and Togo?
- Given their total overstay rates, why did the White House not impose visa and travel restrictions on nationals from Djibouti and Liberia?
Unified Statutory Framework
In the long term, the US Congress may want to consider whether statutory changes and increased oversight are needed for country-specific visa and travel restrictions. For example, the US Congress may want to consider whether it would be beneficial for the legislative branch to limit the discretionary power of the executive branch through:
- Mandatory criteria for the imposition of country-based visa and travel restrictions;
- Mandatory reporting requirements following the imposition of country-based visa and travel restrictions;
- Mandatory visa and travel restriction determinations when requested by the Chairman and Ranking Member of any relevant committees of jurisdiction;
- Statutory limitations on which executive branch officials can be delegated responsibility for making visa and travel restriction determinations.
If so, then the US Congress may want to consider whether to pursue a recodification of the US Code on visa and travel restrictions in the process. That would not only create a unified statutory framework. It would streamline future executive decision-making and Congressional oversight.
(Image: Wikipedia |US Customs and Border Protection)
Michael Walsh is a Non-Resident Senior Fellow in the Foreign Policy Research Institute’s Africa Program.
