Foggy Bottom and the Border

In the next administration, undoing Biden administration policies that have abetted the current migration crisis at home and abroad will require a whole-of-government effort. While the Department of Homeland Security (DHS) is the essential agency in protecting our country’s borders, the Department of State, the lead U.S. foreign affairs agency, also wields powerful tools that can combat illegal immigration and help alleviate the enforcement burden. Properly led, State and other foreign affairs agencies can provide an invaluable forward defense to facilitate common-sense immigration control globally.

Who’s Who at State on Immigration and Border Security

Several offices at State are involved in creating and implementing U.S. immigration policy. The principal ones are the Bureau of Consular Affairs (CA), which issues over 10 million non-immigrant visas and almost 600,000 immigrant visas yearly, and the Bureau of Population, Refugees, and Migration (PRM), which leads on “international migration policy,” oversees the U.S. Refugee Admissions Program (USRAP) and administers almost $4 billion per year in “humanitarian assistance.” 

The White House typically leaves the leadership of these two bureaus in the hands of Foggy Bottom careerists, but a new president must name officials closely aligned with his goals.

In addition, the new administration needs to marshal State’s Bureau of International Organization Affairs (IO) to help remake “international norms” that promote and facilitate the unlawful movement of migrants. This is particularly needed in international diplomacy dealing with refugees and asylum-seekers. IO must engage with like-minded governments in the United Nations and other multilateral fora to promote national borders as essential building blocks of international security and peace.

U.S. bilateral diplomacy must raise the fight against illegal immigration and visa overstays as a core national security issue. New leadership in State’s “regional bureaus,” which oversee diplomatic engagement in U.S. embassies, must break with past tendencies to push policies that prioritize “increasing people-to-people ties” ahead of reducing visa abuse and overstays. In particular, the Bureau of Western Hemisphere Affairs (WHA) must make the fight in the Americas against human smuggling a core foreign policy priority. WHA must score all its diplomatic engagement on its contribution to U.S. border security and the fight against illegal immigration. 

The next administration must energize State’s Bureau of Diplomatic Security (DS), which is responsible for investigating passport and visa fraud. Such law enforcement work should become DS’s highest priority. State’s Office to Monitor and Combat Trafficking in Persons (TIP) likewise should be brought into the fight against human smuggling. 

The Bureau of Democracy, Human Rights, and Labor (DRL) and Bureau of International Religious Freedom (IRF) must ensure their publications and advocacy do not facilitate spurious refugee and asylum claims. Finally, new leadership in the Bureau of International Narcotics and Law Enforcement Affairs (INL) and the U.S. Agency for International Development (USAID) must administer foreign assistance in step with the new administration’s border security policies. 

Bringing the Mission Together

Harnessing all of these offices to work with each other and other relevant U.S. government agencies begins with clear instructions in the administration’s National Security Strategy. The NSS spells out the country’s national security concerns and how the new president plans to deal with them. The priorities of the NSS become the priorities for strategic and planning documents of State’s bureaus, which in turn drive decisions about funding and other resources, and even the work requirements for individual employees.

The new president must make promoting national sovereignty, protecting national borders, and combatting illegal immigration one of the pillars of his NSS (or interim guidance document until the regular NSS is issued). This NSS language should draw on the existing authorities in the Immigration and Nationality Act (INA) to command specific border security operations and visa procedures. It should direct State to conduct global public relations and diplomatic campaigns promoting border security for the United States and our allies, including countering efforts by international organizations and NGOs to facilitate the mass movement of migrants. It also should direct new foreign assistance and funding priorities to support these objectives.

The right secretary of State – someone fundamentally committed to the effort of combatting illegal immigration and protecting our nation’s borders – can use State’s visa authorities and foreign assistance funding, along with his diplomatic bully pulpit, to implement this NSS directive aggressively. State could encourage other countries to take measures that protect their national borders, accept deportations, and become allies in resisting the migratory chaos that the Biden administration has helped create, particularly in the Western Hemisphere.

On the home front, State can coordinate with DHS, the Department of Justice, and other agencies to pressure changes in unlawful policies in U.S. “sanctuary jurisdictions.” State has significant funding and policy tools that can help punish these domestic sanctuary jurisdictions, which are blatantly ignoring federal law and contributing to border insecurity and illegal immigration.

To drive progress on this NSS directive, the new secretary should assemble within State a senior leadership team that is knowledgeable of the Immigration and Nationality Act (INA) and can command a reluctant and often even hostile career bureaucracy to carry out the president’s policies. This team should include, among others, the assistant secretaries and deputy assistant secretaries of the bureaus named above, particularly CA and PRM, which are indispensable to the effort. 

Using his influence on the Principals Committee, the secretary himself must lead this initiative and the team inside State, as he is formally responsible to the president for implementation of the NSS directive. For day-to-day work, however, the secretary should empower a special counselor to engage State’s seventh floor principals, including the Policy Planning Staff, to coordinate, integrate, and implement the policy. The secretary’s special counselor should serve as a single point of contact for coordination with other agencies and the White House.

Where to Start

The Constitution and the Congress have already empowered the executive branch with the needed security tools to carry out the mission of a new NSS, which the president-elect’s transition team should have ready on January 20, 2025. Specifically, the Immigration and Nationality Act, properly enforced, is the legal bedrock for the president and his senior officials to act to protect the country from illegal immigration. Regrettably, the INA was ignored or even unlawfully countermanded by the Biden administration, but the new president, in implementing his NSS, should plan to draw robustly on the INA on day one. There is no pressing need for new legislation from Congress.

Inside the bureaucracy, the secretary of State should dismiss the inevitable recommendations from Foggy Bottom senior careerists that any new NSS needs to be “socialized” inside State and worked through the “interagency process” that typically dominates technical foreign and security policymaking. That is a tactic designed to delay and bureaucratically obfuscate the administration’s NSS. 

Make more and better use of Section 212(f) of the INA

In Trump v. Hawaii, the landmark 2018 decision on so-called travel bans, the Supreme Court ruled that President Trump’s administration had properly used his statutory authority under Section 212(f) of the INA, which says: 

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

According to Trump v. Hawaii, this “vests authority in the President to impose additional limitations on entry beyond the grounds for exclusion set forth in the INA—including in response to circumstances that might affect the vetting system or any other “interests of the United States” (p. 23). 

Working with DHS and the Department of Justice, State should prepare a series of draft proclamations for the new president’s signature to implement his NSS directive, including ones:

• Suspending land entry of any alien who lacks a valid travel document and visa. Such aliens would be turned around before they reach U.S. immigration inspection, similar to the way in which airlines deny boarding to U.S.-bound passengers who do not have appropriate travel documents.
• Suspending issuance of all immigrant visas except in Immediate Relative (IR) categories until illegal immigration is curtailed. If the United States cannot control who is coming in through the back door, we must limit the number we admit through the front door. 

Limit visa issuance to gain international cooperation

State typically puts visa processing in all countries – allies, neutrals, and foes – on “automatic pilot” and rarely uses this powerful diplomatic tool to advance the national interest. In Trump v. Hawaii, the Supreme Court recognized that “presidents have repeatedly suspended entry not because the covered nationals themselves engaged in harmful acts but instead to retaliate for conduct by their governments that conflicted with U.S. foreign policy interests” (emphasis added, p. 24).

In order to gain foreign government cooperation on the new president’s NSS priorities, State must seriously operationalize INA Section 212(f). In addition to the general proclamations described above, State should prepare a series of specific proclamations, including those:

• Suspending the issuance of visas to and entries of Mexican nationals until Mexico’s government takes a number of steps to facilitate U.S. border security, including cooperation with the “turnaround” procedure described above, acquiescence to a reinstated “Return to Mexico” policy, gaining control of its own southern border, and ensuring its diplomatic and consular personnel stationed in the United States stay out of U.S. politics.
• Suspending the issuance of visas to entries of nationals of other counties in Central and South America that are used as transit points by third-country nationals en route to the United States, until those countries impose visa requirements or other entry controls to curb such flows.
• Suspending the issuance of visas to or entries of foreign nationals directly involved in facilitating unlawful mass migration flows around the world. These foreign nationals should include the staff of international NGOs and “humanitarian” group activists who facilitate illegal migration; it should also include a review of the diplomatic visas issued to the staff of multilateral organizations, headquartered inside the United States, that conduct activities that foster the unlawful movement of migrants. 

In addition to the president’s authority under INA Section 212(f), the secretary of State can exercise his own departmental authorities to advance the new president’s NSS priorities. For example, the secretary can determine staffing at U.S. diplomatic posts around the world, the priorities for such staff, where certain nationalities must apply for visas, and where certain types of visas shall be processed. The secretary should:

• Suspend issuance of nonimmigrant visas to nationals of countries where the visa overstay rate during the previous fiscal year exceeded three percent, to allow consular officers to review country conditions and adjust their adjudication criteria appropriately.
• Reassign consular officers away from countries that do not cooperate with the new president’s NSS priorities, and leave those positions vacant, so those posts will be able to offer only minimal visa service.
• Reassign consular officers away from U.S. diplomatic posts in dangerous areas. The United States is under no obligation to station its personnel in areas where host countries cannot ensure their safety. In Mexico, for example, the secretary should transfer visa processing away from U.S. consulates in the lawless, cartel-controlled border region to Mexico City, where central government control is stronger.
• Refuse to accept visa applications from aliens who are outside their countries of nationality or habitual residence and refuse to accept for visa applications passports issued by countries not recognized de jure by the United States, except Taiwan.
• Suspend issuance of nonimmigrant visas in classifications (e.g., student, investor, temporary worker) to nationals of countries that do not offer a substantively similar visa classification for Americans (“visa reciprocity”).
• Direct consular sections abroad to prioritize resources and officer time to providing service to Americans abroad (e.g., handling death, destitution, and arrest cases, as well as processing passport applications) over visa operations for foreign nationals. 
• Suspend basic consular training until it can be reformed for consistency with the new president’s NSS priorities. Require all consular officers to be re-trained on the new curriculum before they are given authority to adjudicate visa.
• Bar any formal or informal production visa quotas or processing targets. Direct consular officers to take as long as needed during case processing to satisfy themselves personally that a visa applicant qualifies for the visa sought. 
• Require that information about violations of law in the United States by an alien, including overstays, be gathered by U.S.-based State personnel and included in the personnel record of the consular officer who approved the visa that alien used to enter. 

Suspend and revoke visas for nationals of countries that do not cooperate with removals

Countries that do not facilitate the repatriation of their nationals ordered removed from the United States effectively exercise a veto over our law. This is unacceptable. If the United States cannot remove such aliens, it should not admit them in the first place. Section 243(d) of the INA authorizes the secretary of State to discontinue visa issuance in any country that fails to cooperate in such repatriation. For nationals of all such countries, the secretary should do so, as well as prudentially revoke all outstanding visas, starting on the first day of the next president’s administration.

Help on the home front

The secretary should order that State Department’s extensive operations on U.S. territory, particularly in employment and contracting, to align with the new president’s NSS priorities on immigration matters. Accordingly, the secretary should:

• Require all State contractors and grantees to use the DHS E-Verify system to verify the employment eligibility of all of its employees who perform work in the United States – and certify the same for all their contractors and sub-contractors. 
• Punish “sanctuary jurisdictions” that flout U.S. immigration law by ending any State Department domestic spending that might benefit those regions (e.g., stop conducting training activities, offering State recruitment activities, or building and modernizing new facilities).
• Reprogram PRM funding to provide loans and discounted airfares for asylum-seekers, refugees, parolees, and visa overstayers to return to their countries of origin. 
• Direct DS to prioritize visa and passport fraud investigations in cooperation with DHS and DOJ.
• Detail State personnel from headquarters or from overseas visa operations that were suspended, as described above, to support DHS enforcement operations. DS agents who have arrest authority can participate in interior enforcement operations; others can provide support services to free up DHS personnel. 

Conduct a global public relations campaign to change international attitudes on migration

Advocates for open borders, including some governments, seek to establish a “human right to migrate,” to mandate how aliens should be treated in destination countries, or to create new programmatic “rights” for aliens in those countries (e.g., employment and health care services). Assisted by media reports that focus on the suffering of migrants – but never the harm mass migration causes – they have successfully framed migration as an unavoidable, uncontrollable, or even desirable natural phenomenon, and insist it must be handled as a “non-political” or “humanitarian” matter.

Twenty-five years ago, State took the lead in a global campaign to fight human trafficking. Now, State must do the same to counter this framing of migration wherever it arises. State’s Bureau of Global Public Affairs (GPA), in conjunction with the regional bureaus, particularly WHA, should undertake a strategic public diplomacy campaign to document and denounce the chaos, crime, and human tragedy that invariably accompany mass migration. This campaign should point to a fundamentally new international approach that emphasizes the importance of national borders to protect the interests of citizens. It also should promote options to help displaced persons to remain in their geographic regions and to facilitate their eventual return home and re-integration.

Conduct a global diplomatic campaign to change international “norms” on migration

Open-borders advocates have successfully embedded their “non-political” approach to “migration management” in norm-setting international organization documents including the Global Compact for Safe, Orderly, and Regular Migration (GCM), which President Trump denounced and President Biden embraced; the Global Compact on Refugees (GCR); and the UN 2030 Agenda for Sustainable Development and the Sustainable Development Goals (SDGs). Although these are framed in neutral language and technically are non-binding, they advance an agenda of “soft” global governance that is hostile to national sovereignty, protecting national borders, and combatting illegal immigration.

Under new leadership, State must denounce these instruments and confront this approach directly in both multilateral negotiations and bilateral discussions. Migration is in fact among the most political matters in public debate because it affects a fundamental question for any community or nation: Who is a member? Therefore, State’s IO, PRM, and regional bureaus must reinforce the sovereign right of each country to control its borders; to decide who is authorized to enter and on what terms; to determine rules for the acquisition and retention of nationality; to define crimes, including unlawful entry; and to determine how to provide social services to individuals in its territory. Further, they must reiterate the obligation of leaders to prioritize the interests of their own citizens. 

State must repudiate extreme Biden administration diplomatic initiatives such as the “Resettlement Diplomacy Network,” which aims to expand resettlement of refugees and unlawful migrants, and the “Los Angeles Declaration on Migration and Protection.” The latter represents the dressing-up of the Biden administration’s open-border policies, which have done so much damage in promoting the migration of millions of people within and into the Americas. Repudiating it will help bring us new partner countries, such as Panama, which recently elected a president who campaigned on a platform of halting illegal migration, and is enforcing border controls and deporting unlawful migrants. 

Modernize international treaties on refugees and asylum

In addition to addressing these norm-setting “soft law” instruments, State’s IO and PRM bureaus, assisted by interagency lawyers, should seek to renegotiate the treaties that define the obligations of national government towards refugees and asylees, particularly the 1951 UN Convention Relating to the Status of Refugees and related agreements that undergird the current international system for refugee protection. These instruments are out of step with the current world reality of mass migration and give bogus legal cover for the global open-borders network to facilitate unlawful movement of migrants. 

Among other things, State’s effort must seek to update the principle of non-refoulement, which prevents the repatriation of asylum-seekers to areas where they might face danger, but has been abused to prevent the prompt return of illegal migrants who are not bona fide asylum seekers. Further, State’s effort must preemptively block attempts to create a right of asylum based on environmental conditions (aka “climate refugees”).

This will be a difficult undertaking, but State can make the case that the current legal framework pulls migrants into dangerous transnational journeys. The new president should shape conditions for this negotiation in a manner consistent with his NSS priorities by withdrawing the United States from 1967 Protocol Relating to the Status of Refugees (the means by which the United States acceded to the 1951 UN Convention) and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (UNCAT).

Reorient U.S. foreign assistance to serve U.S. border security

In addition to State’s public relations and diplomatic resources, the secretary of State should use another powerful lever: money. The United States is the world’s largest single humanitarian donor. “Implementing partners” such as the International Organization for Migration (IOM), UN High Commissioner for Refugees (UNHCR), and a collection of international and domestic NGOs, receive billions of dollars per year from PRM, other bureaus at State, and USAID, supposedly to “provid[e] protection, eas[e] suffering, and resolv[e] the plight of persecuted and forcibly displaced people around the world.”

This financial grant-giving apparatus does not serve U.S. national interests in that it has become a permanent lobby for the international movement of migrants. This funding helps to incentivize migrants to undertake dangerous journeys that expose them to human trafficking and international criminality. This funding has been used to provide indefinite support for displaced populations around the world, discouraging permanent solutions, and to promote “migration as a powerful driver of sustainable development.” Even more troubling, it has been used to support the transnational movement of economic migrants, including many hundreds of thousands right up to the U.S. southern border.

Such outcomes are unavoidable given the “implementing partners” who receive this funding. The IOM and UNHCR are not neutral organizations. They are UN agencies fully aligned with the agenda of “soft” global governance represented by the GCM, GCR, and SDGs that is hostile to national sovereignty, protecting national borders, and combatting illegal immigration. IOM’s Director General previously served as “Senior Advisor on Migration” in the Biden White House; State pulled out all the stops to secure her election.

Under new leadership, State must ensure U.S. foreign assistance funding supports the new president’s NSS priorities. This means ending a number of extreme Biden administration open-borders initiatives, including the “Safe Mobility Centers” in Central and South America that facilitate the movement of migrants to the United States and the “Welcome Corps” that aims to create a domestic constituency for permanently high levels of migrant resettlement in the United States. This also means cutting off the network of international organizations and NGOs that have facilitated the current migratory chaos around the world and finding new “implementing partners” for whose “humanitarian” work does not undermine U.S. border security.

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The bottom line is that the State Department can and must play a vital role in securing the country’s borders and stopping illegal immigration. If there is a new president on January 20, 2025, concerned about the nation’s ongoing border and immigration calamity, he and his team must retool State Department to do its part.