Could Secretaries of State Hillary Clinton and John Kerry have prevented the release of some 36,000 criminal immigrants last year?

The limited immigration group Center for Immigration Studies (CIS) say there is a good chance the answer is yes. 

Monday, an internal Immigration and Customs Enforcement document obtained by CIS and viewed by Breitbart News revealed that the 36,007 criminal immigrants convicted of nearly 88,000 crimes were released while awaiting the outcome of deportation proceedings last year.

In explaining the releases, ICE pointed in part to court cases, specifically Zadvydas v. Davis, a 2001 Supreme Court case in which the court held the government could not indefinitely hold an immigrant if there is not a likelihood of removal in the “foreseeable future.” This may occur when a country refuses or unreasonably delays accepting people the United States is looking to deport. 

According to ICE, many of the releases — specifically 72 percent of criminal immigrants convicted of homicide — were mandatory, required by court decisions like Zadvydas. 

A little-enforced statute (8 U.S.C. § 1253(d)) CIS highlights, however, requires the Secretary of State to instruct consular offices to stop issuing visas to countries that engage in such obstruction.

On being notified by the [DHS Secretary] that the government of a foreign country denies or unreasonably delays accepting an alien who is a citizen, subject, national, or resident of that country after the [DHS Secretary] asks whether the government will accept the alien under this section, the Secretary of State shall order consular officers in that foreign country to discontinue granting immigrant visas or nonimmigrant visas, or both, to citizens, subjects, nationals, and residents of that country until the [DHS Secretary] notifies the Secretary that the country has accepted the alien.

The statute actually reads “Attorney General,” but that is because, according to CIS executive director Mark Kirkorian, the law was written prior to the creation of DHS. After the formation of DHS, this responsibility became that of the DHS head. 

Indeed, the Boston Globe in 2012 reported that more than 20 countries “routinely block deportation of their citizens,” often leaving immigration officials no choice but to release the convicted immigrants.

The statute appears to have been used only once in late 2001, when the United States briefly banned the issuance of travel visas to Guyana when the country stalled acceptance of some 130 of their citizens who served time in prison.

Krikorian, writing at National Review this week, charged the Obama administration – specifically Clinton and current Secretary of State John Kerry – with ignoring the statute:

The State Department has ignored the legal mandate and just keeps on issuing visas in countries that won’t take back their own citizens. Secretaries of State Hillary Clinton and John Kerry have decided it’s better for ICE to release criminal aliens into American communities — even at the risk of their committing further crimes — than to risk upsetting relations by halting the issuance of visas, as required by law.

He noted that during a hearing in 2011 then-DHS Secretary Janet Napolitano said that she was “not aware” of any such actions taken against countries that refused to take their citizens back.

A Friday CIS report accusing Kerry and Clinton of failing to enforce the statute further pointed out some of the worst countries for refusing to take back their citizens, as laid out in a 2004 GAO report: specifically Cuba, Laos, Vietnam, China, India, Jamaica, former Soviet Republics, Iraq, Iran, Eritrea, Ethiopia, Poland, and Nigeria. The CIS report reads:

ICE headquarters and field officials cited a variety of reasons why governments may not want to issue a travel document for their nationals. ICE explained that one reason is that some foreign countries want assurance that the aliens will have the means to support themselves when they are returned. If the alien is poor or a threat to public safety, some countries will refuse to cooperate and the State Department will simply release the alien into the United States thereby creating a burden for American citizens.

In its report, CIS further called on the State Department to explain its failure to use the law as possible leverage:

Former Secretary of State Hillary Clinton and current Secretary of State John Kerry should explain why they did not follow federal law and stop the issuance of visas to the countries that have refused to take back their law-breaking citizens. DHS Secretary Jeh Johnson and former Secretary Janet Napolitano should also explain whether they directed the State Department to stop issuing visas. The release of dangerous aliens did not start with the Obama administration; officials from the Bush administration could also be questioned about releases that occurred during their tenure. Congress has given the State Department the tools to ensure that Americans do not have to live among criminals who do not belong in the country.

Breitbart News reached out to the State Department Friday afternoon for comment.