Over the past several months, the U.S. State Department’s press page has been awash with visa ban announcements. From the “Khashoggi Ban,” a new policy that imposes visa restrictions on individuals engaged in “extraterritorial counter-dissident activities,” to publicly barring former Albanian prime minister Sali Berisha from entering the United States due to his corrupt conduct while in office, visa bans have become one of the Biden administration’s preferred tools for punishing bad actors abroad. But inconsistent legal frameworks for visa restrictions have meant that some of their targets—namely, those engaged in human rights violations and corruption—can be publicly identified, while individuals engaged in other types of malign conduct, ranging from manipulating elections to harassing journalists, cannot. This gap hampers the U.S. government’s capacity to use visa restrictions to impose consequences on—and direct global attention to—a range of foreign actors who undermine democracy, the rule of law, and fundamental civil liberties.
Fortunately, bipartisan members of the U.S. Congress who serve on the Commission on Security and Cooperation in Europe, also known as the Helsinki Commission, have taken note and introduced changes as part of the Counter-Kleptocracy Act that would expand the scope of public visa restrictions. It would allow the United States to openly impose visa restrictions not only on rights abusers and kleptocrats, but also those participating in transnational repression, judicial manipulation, electoral misconduct, and other anti-democratic activities. As threats to democracy and rights become more complex and widespread, Congress should swiftly adopt this bill in order to modernize and strengthen the United States’ capacity to respond to them.
Background on Visa Bans
Since the first visa restrictions relating to democracy and human rights were imposed in the early 1990s, they have evolved from a non-targeted tool into a precise mechanism to name and shame specific malign actors. At first, visa restrictions were imposed against groups, not specific individuals. They relied on proclamations under the Immigration and Nationality Act (INA), which allowed the president to deny entry to groups found to be engaged in anti-democratic, rights-abusing, or corrupt activities. Restrictions were applied to groups like “members of the military junta in Sierra Leone and their family” and those who “formulate, implement, or benefit from policies that are impeding the negotiations seeking the return to constitutional rule in Haiti” after the 1991 coup. These non-targeted bans served as a powerful signal of U.S. consternation, but did little to call attention to the individuals undermining democracy or violating human rights.
Only later did the State Department begin to ban specific individuals under section 212(a)(3)(C) of the INA, which allows the Secretary of State to deny entry to anyone whose presence would have “potentially serious adverse foreign policy consequences” for the United States. For example, in 2011, Secretary of State Hillary Clinton used this authority to announce visa bans on 50 unnamed Iranian officials for their involvement in repression, while in 2015 Secretary John Kerry banned a number of unnamed Venezuelan officials for involvement in rights abuses. This shift previewed a move towards a more targeted form of visa restrictions. Yet because these bans were made under the INA, the law’s requirement under Section 222(f) that “records…pertaining to the issuance or refusal of visas” must be confidential prevented the government from publicly identifying who it had banned from entry. While confidentiality is vital for protecting applicants’ personal information, public visa restrictions have clashed awkwardly with this privacy provision as the government announces it has banned foreign citizens– without actually saying who it has banned.
Over the past decade, however, a few newer sanctions authorities have shifted visa bans away from anonymity and toward public naming and shaming. The first were the Sergei Magnitsky Rule of Law Accountability Act (“Russia Magnitsky”) and the Global Magnitsky Human Rights Accountability Act (“Global Magnitsky”) sanctions laws. Russia Magnitsky, the earlier of the two programs, provided for visa bans and asset freezes against individuals found to be responsible for the detention and death of Sergei Magnitsky, a Russian anti-corruption advocate, as well as those responsible for rights abuses against individuals seeking to expose illegal activity by the Russian government or rights abuses against those seeking to promote human rights in Russia. Notably, the law allowed for the public designation of anyone sanctioned under the Act and explicitly bypassed the INA’s privacy requirements.
The success of the Russia Magnitsky model spurred interest in broadening the program, and in late 2016, President Obama signed Global Magnitsky into law, which provided for visa bans and asset freezes on any person or entity, in any country, found to have engaged in “gross violations of internationally recognized human rights” or “acts of significant corruption.” These criteria were made even more expansive by Executive Order 13818 (“Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption”), signed in December 2017, which implements Global Magnitsky: under this E.O., individuals could be targeted for involvement in “serious human rights abuse,” a lower standard than “gross violations,” and involvement in “corruption” rather than “significant corruption,” a similarly broad criterion.
Another key authority is Section 7031(c) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, which has evolved over the past decade to publicly ban kleptocrats and human rights violators from entering the United States. In its initial form, from 2008 to 2011, 7031(c) banned entry only to foreign officials involved in corruption related to natural resource extraction. In 2012, Congress expanded it to include foreign officials credibly accused of involvement in “significant corruption,” and in 2014 it further grew to encompass bans for foreign officials involved in “a gross violation of human rights.” Importantly, from 2014 onwards, Section 7031(c) also allowed for designees to be named publicly, overcoming the privacy requirements of the INA.
Empowered with these authorities, the U.S. government has shifted its use of visa restrictions towards public designation. Often announced via high-level press releases, public visa restrictions have become an effective means of generating international scrutiny of the individuals and acts implicated in them. In one illustrative case, that of corrupt Liberian immigration official Andrew Wonplo, the imposition of 7031(c) restrictions spurred more press mentions of him in the ensuing two weeks than he had received in his entire life. Perhaps even more importantly, these actions lend credibility to civil society organizations and activists who have long been trying to call attention to such acts and their perpetrators. This moral and practical power of “naming and shaming” is what has led the U.S. government to so enthusiastically embrace the power of public visa bans.
Fragmented Authorities
Despite their newfound popularity in U.S. foreign policy, fragmented legal authorities have hampered the use of public visa bans for foreign actors implicated in malign conduct beyond “serious human rights abuse” or “significant corruption,” who under current law cannot be publicly banned from entry to the United States.
As Figure 1 illustrates, statutory thresholds for bans vary significantly. Moreover, some authorities allow for public designation, while others do not. This means that individuals found to have engaged in malign acts outside of the criteria for designation under E.O. 13818 or Section 7031(c)—which could include acts like repressing opposition parties, intimidating journalists, undermining the rule of law, or engaging in other forms of anti-democratic behavior—can only be banned under discretionary INA authorities, and thus not named and shamed publicly.
Notably, both E.O. 13818 and Section 7031(c) allow for the government to choose to designate privately or publicly. Such discretion is important; for example, if a kleptocratic foreign head of state was banned publicly, it might cause diplomatic backlash, so a private ban may be a more suitable course. But rather than forcing private designation, as the INA currently does, visa ban frameworks should provide the needed flexibility to respond to malign activities with private or public actions, whichever better suits the situation.
Figure 1—Primary Visa Ban Authorities
| Visa Ban Authority/Applicability | Standard for Ban | Public Designations Allowed? |
|---|---|---|
| Immigration and Nationality Act Section 212 (Selected Provisions) Codified in 8 U.S.C. 1182 Applicable to: “Any alien” | -The Secretary of State has “reasonable grounds” to believe there would be “adverse foreign policy consequences” if the alien was admitted [212(a)(3)(C)(i)] -Determined to have “ordered, incited, assisted, or otherwise participated in genocide” [212(a)(3)(E)(ii)] -Determined to have “committed, ordered, incited, assisted, or otherwise participated in the commission of” torture or extrajudicial killing under color of law. [212(a)(3)(E)(iii)] -The President finds that entry would be “detrimental to the interests of the United States” [212(f)] | No; barred by confidentiality requirements of INA Section 222(f) |
| Section 7031(c) Applicable to: “Officials of foreign governments and their immediate family members” | “Credible information” of direct or indirect involvement “in significant corruption” or “a gross violation of human rights” | Yes; discretionary |
| Executive Order 13818, “Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption” (Implements Global Magnitsky) Applicable to: “Any foreign person” | Determined by the Secretary of the Treasury to be: -“responsible for or complicit in, or to have directly or indirectly engaged in, serious human rights abuse” -a “current or former government official, or a person acting for or on behalf of such an official responsible for or complicit in, or has directly or indirectly engaged in” corruption, or the transfer of proceeds of corruption. -the leader or official of an entity engaged in corruption or serious human rights abuse | Yes; discretionary |
Two of the Biden administration’s recent visa ban efforts illustrate how these gaps leave some anti-democratic and repressive behaviors outside the scope of public visa bans.
First, in Feb. 2021, the State Department announced visa restrictions on 43 Belarusian individuals in response to the Lukashenka regime’s crackdown on protesters, activists, and journalists. It did so pursuant to a Bush-era Presidential Proclamation which banned entry for those undermining the transition to democracy in Belarus. Yet because these restrictions were made based on a proclamation pursuant to the INA, the Department could not announce who, in fact, it had barred from entry. Instead, its statement alluded to their backgrounds and offenses: among the 43 individuals were “high-ranking justice sector officials; law enforcement leaders and rank-and-file personnel who detained and abused peaceful demonstrators; judges and prosecutors involved in sentencing peaceful protesters and journalists to prison terms; and academic administrators who threatened students for participation in peaceful protests.” Though much more specific than many similar statements, the statement could not call attention to discrete rights abuses or name the individuals implicated in them.
Only a few days after imposing the Belarusian ban, Secretary of State Blinken announced that the State Department was instituting a “Khashoggi Ban” against individuals implicated in the transnational repression of dissidents. Pursuant to the discretionary authority given to the Secretary of State under section 212(a)(3)(C) of the INA, Secretary Blinken announced a new visa ban policy targeting individuals who, “acting on behalf of a foreign government, are believed to have been engaged in serious, extraterritorial counter-dissident activities,” including those that harm journalists and activists. In the announcement, he noted that 76 Saudis who had threatened dissidents overseas had been banned from entry—but he could not name them. While he further stated that the Department would evaluate if any of them were eligible for designation under 7031(c), the statement underscored the gap in visa authorities’ coverage: because these repressive activities do not necessarily fall under the definition of “serious human rights abuses,” individuals implicated in them cannot be designated publicly.
These two statements reflect a commendable desire from the Biden administration to call attention to anti-democratic and repressive activities abroad. They both go as far as possible in balancing specificity with confidentiality. Yet they should not have to. Instead, visa ban frameworks should be updated to allow for public designations.
Improving the Visa Ban Toolkit
Fortunately, Congress has taken note of this problem and a bipartisan group of legislators recently introduced the Revealing and Explaining Visa Exclusions for Accountability and Legitimacy (REVEAL) Act, which has now been incorporated into the consolidated Counter-Kleptocracy Act. This bill would amend Section 222(f) of the INA to permit the Secretary of State to waive confidentiality for any individual subject to a visa ban under the Secretary’s discretionary authority pursuant to section 212(a)(3)(C) of the INA.
This simple change would enable (but not require) the Secretary to publicly identify anyone he or she had banned from entry, allowing public visa ban designations to be made for a much wider range of malign conduct. Visa restrictions issued under innovative new authorities like the Khashoggi Ban would no longer need to be made behind the veil of the consular bureaucracy. This small fix by Congress could have a big impact on the United States’ ability to call attention to a range of anti-democratic conduct, impose costs on those responsible, and encourage other governments to follow suit.