Comment: The Use of “Public Designation” under Section 7031 (c)
Republican and Democratic administrations have taken a similar approach to 7031 (c)… reflecting their foreign policy priorities or attitudes towards different countries… 7031 (c) serves as a versatile and effective tool of foreign policy. However, safeguards are needed to prevent any mishandling or politicization of a designation.
From: David L. Phillips and David J. Felsen
New York and Tirana — The U.S. Secretary of State can combat corruption and gross human rights violations by invoking the Section 7031 (c) provision, which bars individuals found to be highly corrupt or as egregious violators of human rights from entry to the United States. The recent designation of Albania’s former President and Prime Minister Sali Berisha raises questions about the process of sanctioning an individual under Section 7031 (c): Should the person being investigated have the right to confront the accusations through a transparent process? Once sanctioned, should there be the right to an appeal?
The U.S. Congress authorized a “public designation” visa restriction under Section 7031(c) of the Department of State, Foreign Operations, and Related Programs Appropriations Act. This provision was included in foreign operations appropriations legislation beginning in FY2008.
Under Section 7031 (c), the Secretary of State is authorized to deny entry to the U.S. by foreign officials about whom credible information exists indicating that they have been involved in “significant corruption”, including corruption related to the extraction of natural resources, or if these individuals are involved in the “gross violation of human rights”. The entry restriction automatically applies to immediate family members of the foreign individuals in question even if they have not been directly involved in activities warranting sanctions.
The designation is typically a “public designation”, though the Secretary of State may choose to invoke it “privately”. It is the result of a lengthy interagency process, with conclusions made by the State Department’s Bureau of International Narcotics and Law Enforcement Affairs (INL). INL is the lead agency organizing input from within the Department of State as well as from law enforcement, security, intelligence and other relevant agencies from the federal government and other levels of government. However, the designation should not be necessarily interpreted as involving any narcotics-related activity.
What is also noteworthy about Section 7031 (c) is that while the Secretary of State’s designation may be made publicly or privately, all records concerning banning of the designated individual are not confidential. That is, the information can be accessed publicly through the Freedom of Information Act (FOIA). This is a clear variance from general policy and practice regarding the decision to issue or deny a visa, as provided in Section 222 (f) of the Immigration and Nationality Act, which requires that any records regarding the issuing or refusing of U.S. visas be kept strictly confidential.
Section 7031 (c) is a powerful yet underutilized tool of US foreign policy. The threat that foreign officials may be publicly designated and shamed for engaging in significant corruption or human rights abuses and the threat to family members of being barred from entry to the U.S. is a strong disincentive or deterrent to foreign officials.
U.S. foreign and treaty obligations may create some exemptions for individuals who may have been publicly designated. An exemption from Section 7031 (c) can be made if the individual’s subsequent entry to the country furthers U.S. law enforcement objectives, if there are compelling national security interests, if circumstances have changed that had caused the designation in the first place, or if the individual’s entry fulfills U.S. obligations under the United Nations Headquarters Agreement.
Republican and Democratic administrations have taken a similar approach to 7031 (c). Yet, different administrations may interpret significant corruption and human rights abuses in different ways, reflecting their foreign policy priorities or attitudes towards different countries. The Trump administration designated the former President of the Gambia for significant corruption in 2018. Nicaragua’s Supreme Electoral Council President was designated for significant corruption, and Serbian Goran Radosavljevic was publicly designated for violation of human rights in the murder of three Albanian-American brothers in Kosovo during the war.
During the Biden administration, Berisha was sanctioned in mid-May 2021 under Section 7031 (c) for significant corruption. 7031 (c) was also used to designate the former Prosecutor General of Slovakia for significant corruption; Ukrainian oligarch Ihor Kolomoyskyi was designated in March 2021. A Paraguayan Congressman was designated for significant corruption in April 2021. Congressman Boris Espana Carceres of Guatemala and two former Nambian government ministers were designated for significant corruption in June 2021.
Yet the Trump Administration also extended the use of 7031 (c) to further political goals in Iran and Cuba. In November 2020, towards the end of the Trump Administration, Secretary of State Pompeo designated two Iranian military officials as human rights violators. In the case of Cuba, the final days of the Trump Administration saw the designation of Defense Minister Leopoldo Cintra Frias for violations of human rights. This was followed by Cuba’s labelling as a “State Sponsor of Terrorism”. Cuba was placed on the SST list though it had previously been removed from the list by the Obama administration in 2015.
In addition to the 7031 (c) designation, Executive Order 13818 of December 20th, 2017, which implemented the Global Magnitsky Human Rights Accountability Act (GMA), is another vehicle to target corruption and human rights violators. GMA uses very similar language to 7031 (c). However, E.O. 13818 also allows for the freezing of assets and blocking of transactions for designated individuals. During the Biden administration, several Bulgarian nationals charged with corruption in early June 2021 were designated under 7031 (c), while E.O. 13818 and other sanctions brought by the Treasury Department’s Office of Foreign Assets Control (OFAC) were applied at the same time. The Department of State’s statement of June 2nd indicated that E.O. 13818, which implements and builds upon the Magnitsky Act, targeted three oligarchs and 64 of their owned entities, while at the same time 7031 (c) designated five Bulgarians as ineligible for entry owing to “significant corruption”.
In sum, 7031 (c) serves as a versatile and effective tool of foreign policy. However, safeguards are needed to prevent any mishandling or politicization of a designation. Individuals should have the right to address questions about their conduct at some point in the process. Individuals should be able to argue why they may warrant an exemption. Once designated, a mechanism should exist to permit an appeal by the individual. Lastly, until a final determination is made the process requires discretion so that reputations are not ruined unnecessarily.
This article was originally published by Exit News on July 7, 2020
Mr. Phillips is Director of the Program on Peacebuilding and Human Rights at Columbia University in New York. He served as a Senior Adviser and Foreign Affairs Expert to the US State Department during the Clinton, Bush and Obama administrations. Mr. Felsen holds a doctorate in politics from Oxford University and is Vice-Rector for International Relations at Epoka University in Albania.