OCTOBER TERM, 1992
Syllabus
SALE, ACTING COMMISSIONER, IMMIGRATION AND NATURALIZATION
SERVICE, ET AL.
v. HAITIAN CENTERS COUNCIL, INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
No. 92-344. Argued March 2, 1993-Decided June 21, 1993
An Executive Order directs the Coast Guard to intercept vessels
illegally transporting passengers from Haiti to the United States
and to return those passengers to Haiti without first determining
whether they qualify as refugees, but "authorize[s] [such forced
repatriation] to be undertaken only beyond the territorial sea of
the United States." Respondents, organizations representing
interdicted Haitians and a number of Haitians, sought a temporary
restraining order, contending that the Executive Order violates
§243(h)(1) of the Immigration and Nationality Act of 1952 (INA or
Act) and Article 33 of the United Nations Convention Relating to
the Status of Refugees. The District Court denied relief,
concluding that § 243(h)(1) does not protect aliens in
international waters and that the Convention's provisions are not
self-executing. In reversing, the Court of Appeals held,
inter
alia, that §243(h)(1) does not apply only to aliens within the
United States and that Article 33, like the statute, covers
all refugees, regardless of location.
Held: Neither §243(h) nor Article 33 limits the
President's power to order the Coast Guard to repatriate
undocumented aliens intercepted on the high seas. pp. 170-188.
(a) The INA's text and structure demonstrate that
§243(h)(1)-which provides that "[t]he Attorney General shall not
deport or return any alien ... to a country if the Attorney General
determines that such alien's life or freedom would be threatened in
such country ... "-applies only in the context of the domestic
procedures by which the Attorney General determines whether
deportable and excludable aliens may remain in the United States.
In the light of other INA provisions that expressly confer upon the
President and other officials certain responsibilities under the
immigration laws, § 243(h)(1)'s reference to the Attorney General
cannot reasonably be construed to describe either the President or
the Coast Guard. Moreover, the reference suggests that the section
applies only to the Attorney General's normal responsibilities
under the INA, particularly her conduct of deportation and
exclusion hearings in which requests for asylum or for withholding
of deportation under §243(h) are ordinarily advanced. Since the INA
nowhere pro-
156
vides for the conduct of such proceedings outside the United
States, since Part V of the Act, in which § 243 is located,
obviously contemplates that they be held in this country, and since
it is presumed that Acts of Congress do not ordinarily apply
outside the borders, see,
e. g., EEOC v.
Arabian American Oil Co., 499 U. S. 244, §
243(h)(1) must be construed to apply only within United States
territory. That the word "return" in § 243(h)(1) is not limited to
aliens in this country does not render the section applicable
extraterritorially, since it must reasonably be concluded that
Congress used the phrase "deport or return" only to make the
section's protection available both in proceedings to deport aliens
already in the country and proceedings to exclude those already at
the border. Pp. 171-174.
(b) The history of the Refugee Act of 1980-which amended §
243(h)(1) by adding the phrase "or return" and deleting the phrase
"within the United States" following "any alien"-confirms that
§243(h) does not have extraterritorial application. The foregoing
are the only relevant changes made by the 1980 amendment, and they
are fully explained by the intent, plainly identified in the
legislative history, to apply § 243(h) to exclusion as well as to
deportation proceedings. There is no change in the 1980 amendment,
however, that could only be explained by an assumption that
Congress also intended to provide for the statute's
extraterritorial application. It would have been extraordinary for
Congress to make such an important change in the law without any
mention of that possible effect. Pp.174-177.
(c) Article 33's text-which provides that "[n]o ... State shall
expel or return
('refouler~ a refugee ... to ... territories
where his life or freedom would be threatened ... ," Article 33.1,
and that "[t]he benefit of the present provision may not ... be
claimed by a refugee whom there are reasonable grounds for
regarding as a danger to the security of the country in which he is
[located]," Article 33.2-affirmatively indicates that it was not
intended to have extraterritorial effect. First, if Article 33.1
applied on the high seas, Article 33.2 would create an absurd
anomaly: Dangerous aliens in extraterritorial waters would be
entitled to 33.1's benefits because they would not be in any
"country" under 33.2, while dangerous aliens residing in the
country that sought to expel them would not be so entitled. It is
more reasonable to assume that 33.2's coverage was limited to those
already in the country because it was understood that 33.1
obligated the signatory state only with respect to aliens within
its territory. Second, Article 33.l's use of the words "expel or
return" as an obvious parallel to the words "deport or return" in §
243(h)(1) suggests that "return" in 33.1 refers to exclusion
proceedings, see
Leng May Ma v.
Barber, 357 U. S. 185,187, and
therefore has a legal meaning narrower than its common meaning.
This suggestion is reinforced by the parenthetical reference to the
French word
"refouler,"
157
which is
not an exact synonym for the English word
"return," but has been interpreted by respected dictionaries to
mean, among other things, "expeL" Although gathering fleeing
refugees and returning them to the one country they had desperately
sought to escape may violate the spirit of Article 33, general
humanitarian intent cannot impose uncontemplated obligations on
treaty signatories. Pp. 179-183.
(d) Although not dispositive, the Convention's negotiating
historywhich indicates,
inter alia, that the right of
non-refoulement applies only to aliens physically present in
the host country, that the term
"refouler" was included in
Article 33 to avoid concern about an inappropriately broad reading
of the word "return," and that the Convention's limited reach
resulted from a hard-fought bargain-solidly supports the foregoing
conclusion. Pp. 184-187.
969 F.2d
1350, reversed.
STEVENS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and WHITE, O'CONNOR, SCALIA, KENNEDY, SOUTER, and
THOMAS, JJ., joined. BLACKMUN, J., filed a dissenting opinion,
post, p. 188.
Deputy Solicitor General Mahoney argued the cause for
petitioners. With her on the briefs were Solicitor General Starr,
Assistant Attorney General Gerson, Paul T. Cappuccio, Edwin S.
Kneedler, Michael Jay Singer, and Edwin D. Williamson.
Harold Hongju Koh argued the cause for respondents.
With him on the brief were Drew S. Days
III, Geoffrey C.
Hazard, Jr., Paul W Kahn, Michael Ratner, Cyrus R. Vance, Joseph
Tringali, Lucas Guttentag, Judy Rabinovitz, and Robert Rubin.
*
*William W Chip, Timothy J. Cooney, and
Alan C.
Nelson filed a brief for the Federation for
American Immigration Reform as
amicus curiae urging
reversal.
Briefs of
amici curiae urging affirmance were filed for
the American Immigration Lawyers Association et al. by
Lory D.
Rosenberg; for the American Jewish Committee et al. by
David
Martin, Samuel Rabinove, and
Steven M. Freeman; for
Amnesty International et al. by
Bartram Brown and
Paul
Hoffman; for the Association of the Bar of the City of New York
by
Michael Lesch, John D. Feerick, Sidney S.
Rosdeitcher, and
Robert P. Lewis; for Human Rights
Watch by
Kenneth Roth, Karen Musalo, and
Stephen L.
Kass; for the International Human Rights Law Group by
William T. Lake, Carol F.
Lee, W Hardy Callcott,
Steven
158
JUSTICE STEVENS delivered the opinion of the Court.
The President has directed the Coast Guard to intercept vessels
illegally transporting passengers from Haiti to the United States
and to return those passengers to Haiti without first determining
whether they may qualify as refugees. The question presented in
this case is whether such forced repatriation, "authorized to be
undertaken only beyond the territorial sea of the United States," 1
violates § 243(h)(1) of the Immigration and Nationality Act of 1952
(INA or Act).2
M. Schneebaum, and Janelle M. Diller; for the Lawyers Committee
for Human Rights by Arthur C. Helton, William G. O'Neill, O. Thomas
Johnson, Jr., Andrew I. Schoenholtz, and Carlos M. Vasquez; for the
National Association for the Advancement of Colored People et al.
by Wade
J. Henderson, Laurel Pyke Mason, and Luther Zeigler;
for the Office of the United Nations High Commissioner for Refugees
by Joseph R. Guerra, Julian Fleet, and Ralph G. Steinhardt; and for
Senator Edward M. Kennedy et al. by Joshua R. Floum and Deborah E.
Anker.
Briefs of
amici curiae were filed for the Haitian Service
Organizations et al. by
Terry Helbush; and for Nicholas deB.
Katzenbach et al. by
Michael W McConnell.
1 This language appears in both Executive Order No. 12324,3 CFR
181 (1981-1983 Comp.), issued by President Reagan, and Executive
Order No. 12807,57 Fed. Reg. 21133 (1992), issued by President
Bush.
2 Title 8 U. S. C. § 1253(h) (1988 ed. and Supp. IV), as amended
by § 203(e) of the Refugee Act of 1980, Pub. L. 96-212, 94 Stat.
107. Section 243(h)(I) provides:
"(h) Withholding of deportation or return. (1) The Attorney
General shall not deport or return any alien (other than an alien
described in section 1251(a)(4)(D) of this title) to a country if
the Attorney General determines that such alien's life or freedom
would be threatened in such country on account of race, religion,
nationality, membership in a particular social group, or political
opinion."
Section 243(h)(2), 8 U. S. C. § 1253(h)(2), provides, in
part:
"(2) Paragraph (1) shall not apply to any alien if the Attorney
General determines that-
"(D) there are reasonable grounds for regarding the alien as a
danger to the security of the United States."
Before its amendment in 1965, § 243(h), 66 Stat. 214, read as
follows:
"The Attorney General is authorized to withhold deportation of
any alien within the United States to any country in which in his
opinion the alien
159
We hold that neither § 243(h) nor Article 33 of the United
Nations Protocol Relating to the Status of Refugees 3 applies to
action taken by the Coast Guard on the high seas.
I
Aliens residing illegally in the United States are subject to
deportation after a formal hearing.4 Aliens arriving at the border,
or those who are temporarily paroled into the country, are subject
to an exclusion hearing, the less formal process by which they,
too, may eventually be removed from the United States.5 In either a
deportation or exclusion proceeding the alien may seek asylum as a
political refugee for whom removal to a particular country may
threaten his life or freedom. Requests that the Attorney General
grant asylum or withhold deportation to a particular country are
typically, but not necessarily, advanced as parallel claims in
either a deportation or an exclusion proceeding.6 When an alien
proves that he is a "refugee," the Attorney General has discretion
to grant him asylum pursuant to § 208 of the Act. If the proof
shows that it is more likely than not that the alien's life or
freedom would be threatened in a particular country because of his
political or religious beliefs, under § 243(h) the Attorney General
must not send him to that
would be subject to physical persecution on account of race,
religion, or political opinion and for such period of time as he
deems to be necessary for such reason." 8 U. S. C. § 1253(h) (1964
ed., Supp. IV); see also
INS v.
Stevie, 467 U. S. 407, 414, n. 6
(1984).
3Jan. 31,1967,19 U. S. T. 6223, T. I. A. S. No. 6577. 48 U. S.
C. § 1252 (1988 ed. and Supp. IV).
58 U. S. C. § 1226. Although such aliens are located within the
United States, the INA (in its use of the term exclusion) treats
them as though they had never been admitted; § 1226(a), for
example, says that the special inquiry officer shall determine
"whether an arriving alien ... shall be allowed to enter or shall
be excluded and deported." Aliens subject to either deportation or
exclusion are eventually subjected to a physical act referred to as
"deportation," but we shall refer, as immigration law generally
refers, to the former as "deportables" and the latter as
"excludables."
6 See
INS v.
Stevie, 467 U. S., at 423, n. 18.
160
country. 7 The IN A offers these statutory protections only to
aliens who reside in or have arrived at the border of the United
States. For 12 years, in one form or another, the interdiction
program challenged here has prevented Haitians such as respondents
from reaching our shores and invoking those protections.
On September 23, 1981, the United States and the Republic of
Haiti entered into an agreement authorizing the United States Coast
Guard to intercept vessels engaged in the illegal transportation of
undocumented aliens to our shores. While the parties agreed to
prosecute "illegal traffickers," the Haitian Government also
guaranteed that its repatriated citizens would not be punished for
their illegal departure.8 The agreement also established that the
United States Government would not return any passengers "whom the
United States authorities determine[d] to qualify for refugee
status." App. 382.
On September 29, 1981, President Reagan issued a proclamation in
which he characterized "the continuing illegal migration by sea of
large numbers of undocumented aliens into the southeastern United
States" as "a serious national problem detrimental to the interests
of the United States." Presidential Proclamation No. 4865, 3 CFR
50-51 (1981-1983 Comp.). He therefore suspended the entry of
undocumented aliens from the high seas and ordered the Coast Guard
to intercept vessels carrying such aliens and to return them to
their point of origin. His Executive Order expressly "provided,
however, that no person who is a refu-
7Id., at 424-425, 426, n. 20.
8 As a part of that agreement, "the Secretary of State obtained
an assurance from the Haitian Government that interdicted Haitians
would 'not be subject to prosecution for illegal departure.' See
Agreement on Migrants-Interdiction, Sept. 23, 1981, United
States-Haiti, 33 U. S. T. 3559, 3560, T. I. A. S. No. 10241."
Department of State v.
Ray, 502 U. S. 164, 167-168
(1991).
161
gee will be returned without his consent." Exec. Order No.
12324,3 CFR §2(c)(3), p. 181 (1981-1983 Comp.).9
In the ensuing decade, the Coast Guard interdicted approximately
25,000 Haitian migrants.1o After interviews conducted on board
Coast Guard cutters, aliens who were identified as economic
migrants were "screened out" and promptly repatriated. Those who
made a credible showing of political refugee status were "screened
in" and trans-
9 That proviso reflected an opinion of the Office of Legal
Counsel that Article 33 of the United Nations Convention Relating
to the Status of Refugees imposed some procedural obligations on
the United States with respect to refugees outside United States
territory. That opinion was later withdrawn after consideration was
given to the contrary views expressed by the legal adviser to the
State Department. See App. 202-230.
l°Id., at 231. In 1985 the District Court for the
District of Columbia upheld the interdiction program, specifically
finding that § 243(h) provided relief only to Haitians in the
United States.
Haitian Refugee Center, Inc. v.
Gracey, 600 F. Supp. 1396, 1406. On appeal from that
holding, the Court of Appeals noted that "over 78 vessels carrying
more than 1800 Haitians have been interdicted. The government
states that it has interviewed all interdicted Haitians and none
has presented a bona fide claim to refugee status. Accordingly, to
date all interdictees have been returned to Haiti."
Haitian
Refugee Center v.
Gracey, 257 U. S. App. D. C. 367, 370,
809 F.2d
794, 797 (1987). The Court affirmed the judgment of the
District Court on the ground that the plaintiffs in that case did
not have standing, but in a separate opinion Judge Edwards agreed
with the District Court on the merits. He concluded that neither
the United Nations Protocol nor § 243(h) was "intended to govern
parties' conduct outside of their national borders.
"The other best evidence of the meaning of the Protocol may be
found in the United States' understanding of it at the time of
accession. There can be no doubt that the Executive and the Senate
decisions to adhere were made in the belief that the Protocol
worked no substantive change in existing immigration law. At that
time '[t]he relief authorized by § 243(h) [8 U. S. C. § 1253(h)]
was not ... available to aliens at the border seeking refuge in the
United States due to persecution.'"
Id., at 413-414, 809 F.
2d, at 840-841 (opinion concurring in part and dissenting in part)
(footnotes omitted). See
INS v.
Stevie, 467 U. S., at
415.
162
ported to the United States to file formal applications for
asylum. App. 231.11
On September 30, 1991, a group of military leaders displaced the
government of Jean Bertrand Aristide, the first democratically
elected president in Haitian history. As the District Court stated
in an uncontested finding of fact, since the military coup
"hundreds of Haitians have been killed, tortured, detained without
a warrant, or subjected to violence and the destruction of their
property because of their political beliefs. Thousands have been
forced into hiding." App. to Pet. for Cert. 144a. Following the
coup the Coast Guard suspended repatriations for a period of
several weeks, and the United States imposed economic sanctions on
Haiti.
On November 18, 1991, the Coast Guard announced that it would
resume the program of interdiction and forced repatriation. The
following day, the Haitian Refugee Center, Inc., representing a
class of interdicted Haitians, filed a complaint in the United
States District Court for the Southern District
11 A "refugee" as defined in 8 U. S. C. § 1101(a)(42)(A), is
entitled to apply for a discretionary grant of asylum pursuant to 8
U. S. C. § 1158. The term "refugee" includes "any person who is
outside any country of such person's nationality or, in the case of
a person having no nationality, is outside any country in which
such person last habitually resided, and who is unable or unwilling
to return to, and is unable or unwilling to avail himself or
herself of the protection of, that country because of persecution
or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion .... "
Section 1158(a) provides: "The Attorney General shall establish
a procedure for an alien
physically present in the United States
or at a land border or port of entry, irrespective of such
alien's status, to apply for asylum, and the alien may be granted
asylum in the discretion of the Attorney General if the Attorney
General determines that such alien is a refugee within the meaning
of section 1101 (a) (42)(A) of this title." (Emphasis added.) This
standard for asylum is similar to, but not quite as strict as, the
standard applicable to a withholding of deportation pursuant to §
243(h)(1). See generally
INS v.
Cardoza-Fonseca,
480 U. S. 421
(1987).
163
of Florida alleging that the Government had failed to establish
and implement adequate procedures to protect Haitians who qualified
for asylum. The District Court granted temporary relief that
precluded any repatriations until February 4, 1992, when a reversal
on appeal in the Court of Appeals for the Eleventh Circuit and a
denial of certiorari by this Court effectively terminated that
litigation. See
Haitian Refugee Center, Inc. v.
Baker, 949 F.2d
1109 (1991)
(per curiam), cert. denied, 502 U. S. 1122
(1992).
In the meantime the Haitian exodus expanded dramatically. During
the six months after October 1991, the Coast Guard interdicted over
34,000 Haitians. Because so many interdicted Haitians could not be
safely processed on Coast Guard cutters, the Department of Defense
established temporary facilities at the United States Naval Base in
Guantanamo, Cuba, to accommodate them during the screening process.
Those temporary facilities, however, had a capacity of only about
12,500 persons. In the first three weeks of May 1992, the Coast
Guard intercepted 127 vessels (many of which were considered
unseaworthy, overcrowded, and unsafe); those vessels carried 10,497
undocumented aliens. On May 22, 1992, the United States Navy
determined that no additional migrants could safely be accommodated
at Guantanamo. App.231-233.
With both the facilities at Guantanamo and available Coast Guard
cutters saturated, and with the number of Haitian emigrants in
unseaworthy craft increasing (many had drowned as they attempted
the trip to Florida), the Government could no longer both protect
our borders
and offer the Haitians even a modified screening
process. It had to choose between allowing Haitians into the United
States for the screening process or repatriating them without
giving them any opportunity to establish their qualifications as
refugees. In the judgment of the President's advisers, the first
choice not only would have defeated the original purpose of the
program (controlling illegal immigration),
164
but also would have impeded diplomatic efforts to restore
democratic government in Haiti and would have posed a
life-threatening danger to thousands of persons embarking on long
voyages in dangerous craft.12 The second choice would have advanced
those policies but deprived the fleeing Haitians of any screening
process at a time when a significant minority of them were being
screened in. See
id., at 66.
On May 23, 1992, President Bush adopted the second choice. 13
After assuming office, President Clinton decided
12 See App. 244-245.
13Executive Order No. 12807 reads in relevant part as
follows:
"Interdiction of Illegal Aliens
"By the authority vested in me as President by the Constitution
and the laws of the United States of America, including sections
212(f) and 215(a)(1) of the Immigration and Nationality Act, as
amended (8 D. S. C. 1182(f) and 1185(a)(1)), and whereas:
"(1) The President has authority to suspend the entry of aliens
coming by sea to the United States without necessary documentation,
to establish reasonable rules and regulations regarding, and other
limitations on, the entry or attempted entry of aliens into the
United States, and to repatriate aliens interdicted beyond the
territorial sea of the United States;
"(2) The international legal obligations of the United States
under the United Nations Protocol Relating to the Status of
Refugees (D. S. T. 1. A. S. 6577; 19 D. S. T. 6223) to apply
Article 33 of the United Nations Convention Relating to the Status
of Refugees do not extend to persons located outside the territory
of the United States;
"(3) Proclamation No. 4865 suspends the entry of all
undocumented aliens into the United States by the high seas;
and
"(4) There continues to be a serious problem of persons
attempting to come to the United States by sea without necessary
documentation and otherwise illegally;
"I, GEORGE BUSH, President of the United States of America,
hereby order as follows:
"Sec. 2. (a) The Secretary of the Department in which the Coast
Guard is operating, in consultation, where appropriate, with the
Secretary of Defense, the Attorney General, and the Secretary of
State, shall issue appro-
165
not to modify that order; it remains in effect today. The wisdom
of the policy choices made by Presidents Reagan, Bush, and Clinton
is not a matter for our consideration. We
priate instructions to the Coast Guard in order to enforce the
suspension of the entry of undocumented aliens by sea and the
interdiction of any defined vessel carrying such aliens.
"(c) Those instructions to the Coast Guard shall include
appropriate directives providing for the Coast Guard:
"(1) To stop and board defined vessels, when there is reason to
believe that such vessels are engaged in the irregular
transportation of persons or violations of United States law or the
law of a country with which the United States has an arrangement
authorizing such action.
"(2) To make inquiries of those on board, examine documents and
take such actions as are necessary to carry out this order.
"(3) To return the vessel and its passengers to the country from
which it came, or to another country, when there is reason to
believe that an offense is being committed against the United
States immigration laws, or appropriate laws of a foreign country
with which we have an arrangement to assist; provided, however,
that the Attorney General, in his unreviewable discretion, may
decide that a person who is a refugee will not be returned without
his consent.
"(d) These actions, pursuant to this section, are authorized to
be undertaken only beyond the territorial sea of the United
States.
"Sec. 5. This order shall be effective immediately.
/s/ George Bush THE WHITE HOUSE
May 24,1992." 57 Fed. Reg. 23133-23134.
Although the Executive Order itself does not mention Haiti, the
press release issued contemporaneously explained:
"President Bush has issued an executive order which will permit
the U. S. Coast Guard to begin returning Haitians picked up at sea
directly to Haiti. This action follows a large surge in Haitian
boat people seeking to enter the United States and is necessary to
protect the lives of the Haitians, whose boats are not equipped for
the 600-mile sea journey.
"The large number of Haitian migrants has led to a dangerous and
unmanageable situation. Both the temporary processing facility at
the U. S. Naval base Guantanamo and the Coast Guard cutters on
patrol are filled to capacity. The President's action will also
allow con-
166
must decide only whether Executive Order No. 12807, 57 Fed. Reg.
23133 (1992), which reflects and implements those choices, is
consistent with § 243(h) of the INA.
II
Respondents filed this lawsuit in the United States District
Court for the Eastern District of New York on March 18, 1992-before
the promulgation of Executive Order No. 12807. The plaintiffs
include organizations that represent interdicted Haitians as well
as Haitians who were then being detained at Guantanamo. They sued
the Commissioner of the Immigration and Naturalization Service, the
Attorney General, the Secretary of State, the Commandant of the
Coast Guard, and the Commander of the Guantanamo Naval Base,
complaining that the screening procedures provided on Coast Guard
cutters and at Guantanamo did not adequately protect their
statutory and treaty rights to apply for refugee status and avoid
repatriation to Haiti.
They alleged that the September 1991 coup had "triggered a
continuing widely publicized reign of terror in Haiti"; that over
1,500 Haitians were believed to "have been killed or subjected to
violence and destruction of their property because of their
political beliefs and affiliations"; and that thousands of Haitian
refugees "have set out in small boats that
tinued orderly processing of more than 12,000 Haitians presently
at Guantanamo.
"Through broadcasts on the Voice of America and public
statements in the Haitian media we continue to urge Haitians not to
attempt the dangerous sea journey to the United States. Last week
alone eighteen Haitians perished when their vessel capsized off the
Cuban coast.
"Under current circumstances, the safety of Haitians is best
assured by remaining in their country. We urge any Haitians who
fear persecution to avail themselves of our refugee processing
service at our Embassy in Port-au-Prince. The Embassy has been
processing refugee claims since February. We utilize this special
procedure in only four countries in the world. We are prepared to
increase the American embassy staff in Haiti for refugee processing
if necessary." App.327.
167
are often overloaded, unseaworthy, lacking basic safety
equipment, and operated by inexperienced persons, braving the
hazards of a prolonged journey over high seas in search of safety
and freedom." App.24.
In April, the District Court granted the plaintiffs a
preliminary injunction requiring defendants to give Haitians on
Guantanamo access to counsel for the screening process. We stayed
that order on April 22, 1992, 503 U. S. 1000, and, while the
defendants' appeal from it was pending, the President issued the
Executive Order now under attack. Plaintiffs then applied for a
temporary restraining order to enjoin implementation of the
Executive Order. They contended that it violated § 243(h) of the
Act and Article 33 of the United Nations Protocol Relating to the
Status of Refugees. The District Court denied the application
because it concluded that § 243(h) is "unavailable as a source of
relief for Haitian aliens in international waters," and that such a
statutory provision was necessary because the Protocol's provisions
are not "self-executing." App. to Pet. for Cert. 166a-168a.14
The Court of Appeals reversed.
Haitian Centers Council,
Inc. v.
McNary, 969 F.2d
1350 (CA2 1992). After concluding that the decision of the
Eleventh Circuit in
Haitian Refugee Center, Inc. v.
Baker, 953 F.2d
1498 (1992), did not bar its consideration of the issue, the
court held that § 243(h)(1) does not apply only to aliens within
the United States. The court found its conclusion mandated by
both
14 This decision was not based on agreement with the Executive's
policy.
The District Court wrote: "On its face, Article 33 imposes a
mandatory duty upon contracting states such as the United States
not to return refugees to countries in which they face political
persecution. Notwithstanding the explicit language of the Protocol
and dicta in Supreme Court cases such as
INS v.
Cardoza
Fonseca, 480 U.
S. 421 (1987) and
INS v.
Stevie, 467 U. S. 407 (1984), the
controlling precedent in the Second Circuit is
Bertrand v.
Sava which indicates that the Protocols' provisions are not
self-executing.
See 684 F.2d
204, 218 (2d Cir. 1982)." App. to Pet. for Cert. 166a-167a.
168
the broad definition of the term "alien" in § 101(a)(3) 15 and
the plain language of § 243(h), from which the 1980 amendment had
removed the words "within the United States." 16 The court reasoned
that the text of the statute defeated the Eleventh Circuit's
reliance on the placement of § 243(h)(1) in Part V of the INA
(titled "Deportation; Adjustment of Status") as evidence that it
applied only to aliens in the United States.17 Moreover, the Court
of Appeals rejected the Government's suggestion that since § 243(h)
restricted actions of the Attorney General only, it did not limit
the President's
15 Section 101(a)(3), 8 U. S. C. § 1l01(a)(3), provides: "The
term 'alien' means any person not a citizen or national of the
United States."
16 "Before 1980, § 243(h) distinguished between two groups of
aliens: those 'within the United States', and all others. After
1980, §243(h)(1) no longer recognized that distinction, although §
243(h)(2)(C) preserves it for the limited purposes of the 'serious
nonpolitical crime' exception. The government's reading would
require us to rewrite § 243(h)(1) into its pre1980 status, but we
may not add terms or provisions where congress has omitted them,
see Gregory v.
Ashcroft, [
501 U. S. 452, 467]
(1991);
West Virginia Univ. Hosps., Inc. v.
Casey,
[
499 U. S. 83,
101] (1991), and this restraint is even more compelling when
congress has specifically removed a term from a statute: 'Few
principles of statutory construction are more compelling than the
proposition that Congress does not intend
sub silentio to
enact statutory language that it has earlier discarded.'
Nachman
Corp. v.
Pension Benefit Guaranty Corp., 446 U. S. 359, 392-93 ...
(1980) (Stewart, J., dissenting) (quoted with approval in
INS v.
Cardoza-Fonseca, 480 U. S. at 442-43 ... ).
'To supply omissions transcends the judicial function.'
Iselin v.
United States, 270 U. S. 245, 250 ...
(1926) (Brandeis, J.)." 969 F. 2d, at 1359.
17"The statute's location in Part V reflects its original
placement there before 1980-when § 243(h) applied by its terms only
to 'deportation'. Since 1980, however, § 243(h)(1) has applied to
more than just 'deportation'-it applies to 'return' as well (the
former is necessarily limited to aliens 'in the United States', the
latter applies to all aliens). Thus, § 243, which applies to all
aliens, regardless of whereabouts, has broader application than
most other portions of Part V, each of which is limited by its
terms to aliens 'in' or 'within' the United States; but the fact
that § 243 is surrounded by sections more limited in application
has no bearing on the proper reading of §243 itself."
Id.,
at 1360.
169
power to order the Coast Guard to repatriate undocumented aliens
intercepted on the high seas.
Nor did the Court of Appeals accept the Government's reliance on
Article 33 of the United Nations Convention Relating to the Status
of Refugees.18 It recognized that the 1980 amendment to the INA had
been intended to conform our statutory law to the provisions of the
Convention,19 but it read Article 33.1's prohibition against
return, like the statute's, "plainly" to cover
"all
refugees, regardless of location." 969 F. 2d, at 1362. This reading
was supported by the "object and purpose" not only of that Article
but also of the Convention as a whole.20 While the Court of Appeals
recognized that the negotiating history of the Convention disclosed
that the representatives of at least six countries21 construed the
Article more narrowly, it thought that those views might have
represented a dissenting position and that, in any event, it would
"turn statutory construction on its head" to
18July 28, 1951, 19 U. S. T. 6259, T. I. A. S. No. 6577.
19 See
INS v.
Cardoza-Fonseca, 480 U. S., at
436-437. Although the United States is not a signatory to the
Convention itself, in 1968 it acceded to the United Nations
Protocol Relating to the Status of Refugees, which bound the
parties to comply with Articles 2 through 34 of the Convention as
to persons who had become refugees because of events taking place
after January 1, 1951. See
INS v.
Stevie, 467 U. S.,
at 416. Because the Convention established Article 33, and the
Protocol merely incorporated it, we shall refer throughout this
opinion to the Convention, even though it is the Protocol that
applies here.
20 "One of the considerations stated in the Preamble to the
Convention is that the United Nations has 'endeavored to assure
refugees the widest possible exercise of ... fundamental rights and
freedoms.' The government's offered reading of Article 33.1,
however, would narrow the exercise of those freedoms, since
refugees in transit, but not present in a sovereign area, could
freely be returned to their persecutors. This would hardly provide
refugees with 'the widest possible exercise' of fundamental human
rights, and would indeed render Article 33.1 'a cruel hoax.''' 969
F. 2d, at 1363.
21 The Netherlands, Belgium, the Federal Republic of Germany,
Italy, Sweden, and Switzerland. See
id., at 1365.
170
allow ambiguous legislative history to outweigh the Convention's
plain text.
Id., at 1366.22
The Second Circuit's decision conflicted with the Eleventh
Circuit's decision in
Haitian Refugee Center v.
Baker,
953 F. 2d 1498 (1992), and with the opinion expressed by Judge
Edwards in
Haitian Refugee Center v.
Gracey, 257 U.
S. App. D. C. 367, 410-414,
809 F.2d
794, 837-841 (1987) (opinion concurring in part and dissenting
in part). Because of the manifest importance of the issue, we
granted certiorari, 506 U. S. 814 (1992).23
III
Both parties argue that the plain language of § 243(h)(1) is
dispositive. It reads as follows:
"The Attorney General shall not deport or return any alien
(other than an alien described in section 1251(a)(4)(D) of this
title) to a country if the Attorney General determines that such
alien's life or freedom would be threatened in such country on
account of race, religion, nationality, membership in a particular
social group, or political opinion." 8 U. S. C. § 1253(h)(1) (1988
ed., Supp. IV).
Respondents emphasize the words "any alien" and "return";
neither term is limited to aliens within the United States.
Respondents also contend that the 1980 amendment deleting the words
"within the United States" from the prior text of § 243(h), see n.
2,
supra, obviously gave the statute an
22Judge Newman concurred separately,
id., at 1368-1369,
and Judge Walker dissented, noting that the 1980 amendment
eliminating the phrase "within the United States" evidenced only an
intent to extend the coverage of § 243(h) to exclusion proceedings
because the Court had previously interpreted those words as
limiting the section's coverage to deportation proceedings,
id., at 1375-1377. See
Leng May Ma v.
Barber,
357 U. S. 185,
187-189 (1958); see also
Plyler v.
Doe, 457 U. S. 202, 212-213,
n. 12 (1982).
23 On November 30, 1992, we denied respondents' motion to
suspend briefing. 506 U. S. 996.
171
extraterritorial effect. This change, they further argue, was
required in order to conform the statute to the text of Article
33.1 of the Convention, which they find as unambiguous as the
present statutory text.
Petitioners' response is that a fair reading of the INA as a
whole demonstrates that § 243(h) does not apply to actions taken by
the President or Coast Guard outside the United States; that the
legislative history of the 1980 amendment supports their reading;
and that both the text and the negotiating history of Article 33 of
the Convention indicate that it was not intended to have any
extraterritorial effect.
We shall first review the text and structure of the statute and
its 1980 amendment, and then consider the text and negotiating
history of the Convention.
A. The Text and Structure of the IN A
Although § 243(h)(1) refers only to the Attorney General, the
Court of Appeals found it "difficult to believe that the
proscription of § 243(h)(1)-returning an alien to his
persecutors-was forbidden if done by the attorney general but
permitted if done by some other arm of the executive branch." 969
F. 2d, at 1360. Congress "understood" that the Attorney General is
the "President's agent for dealing with immigration matters," and
would intend any reference to her to restrict similar actions of
any Government official.
Ibid. As evidence of this
understanding, the court cited 8 U. S. C. § 1l03(a). That section,
however, conveys to us a different message. I t provides, in
part:
"The Attorney General shall be charged with the administration
and enforcement of this chapter and all other laws relating to the
immigration and naturalization of aliens, except insofar as this
chapter or such laws relate to the powers, functions, and duties
conferred upon the President, the Secretary of State, the officers
of the Department of State, or diplomatic or consular officers ....
" (Emphasis added.)
172
Other provisions of the Act expressly confer certain
responsibilities on the Secretary of State,24 the President,25 and,
indeed, on certain other officers as well.26 The 1981 and 1992
Executive Orders expressly relied on statutory provisions that
confer authority on the President to suspend the entry of "any
class of aliens" or to "impose on the entry of aliens any
restrictions he may deem to be appropriate."27 We cannot say that
the interdiction program created by the President, which the Coast
Guard was ordered to enforce, usurped authority that Congress had
delegated to, or implicated responsibilities that it had imposed
on, the Attorney General alone.28
24 See 8 U. S. C. §§ 1104, 1105, 1153, 1201, and 1202 (1988 ed.
and Supp.
IV).
25 See 8 U. S. C. §§ 1157(a), (b), and (d); § 1182(f); §§
1185(a) and (b); and § 1324a(d) (1988 ed. and Supp. IV).
26 See §§ 1161(a), (b), and (c) (Secretaries of Agriculture and
Labor); § 1188 (Secretary of Labor); § 1421 (federal courts).
27 Title 8 U. S. C. § 1182(f) provides: "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 immigrant or nonimmigrants, or impose on the entry of
aliens any restrictions he may deem to be appropriate. "
28 It is true that Executive Order No. 12807,57 Fed. Reg. 23133,
23134 (1992), grants the Attorney General certain authority under
the interdiction program ("The Secretary of the Department in which
the Coast Guard is operating, in consultation, where appropriate,
with the ... Attorney General ... shall issue appropriate
instructions to the Coast Guard," and "the Attorney General, in his
unreviewable discretion, may decide that a person who is a refugee
will not be returned without his consent"). Under the first phrase,
however, any authority the Attorney General retains is subsidiary
to that of the Coast Guard's leaders, who give the appropriate
commands, and of the Coast Guard itself, which carries them out. As
for the second phrase, under neither President Bush nor President
Clinton has the Attorney General chosen to exercise those
discretionary powers. Even if she had, she would have been carrying
out an executive, rather than a legislative, command, and therefore
would not necessarily have
173
The reference to the Attorney General in the statutory text is
significant not only because that term cannot reasonably be
construed to describe either the President or the Coast Guard, but
also because it suggests that it applies only to the Attorney
General's normal responsibilities under the INA. The most relevant
of those responsibilities for our purposes are her conduct of the
deportation and exclusion hearings in which requests for asylum or
for withholding of deportation under § 243(h) are ordinarily
advanced. Since there is no provision in the statute for the
conduct of such proceedings outside the United States, and since
Part V and other provisions of the INA 29 obviously contemplate
that such proceedings would be held in the country, we cannot
reasonably construe § 243(h) to limit the Attorney General's
actions in geographic areas where she has not been authorized to
conduct such proceedings. Part V of the INA contains no reference
to a possible extraterritorial application.
Even if Part V of the Act were not limited to strictly domestic
procedures, the presumption that Acts of Congress do not ordinarily
apply outside our borders would support an interpretation of §
243(h) as applying only within United States territory. See,
e.
g., EEOC v.
Arabian American Oil Co., 499 U. S. 244, 248 (1991)
(citing
Foley Bros., Inc. v.
Filardo, 336 U. S. 281, 285
(1949));
Lujan v.
Defenders of Wildlife, 504 U. S. 555, 585-589,
and n. 4 (1992) (STEVENS, J., concurring in judgment); see also
Argentine Republic v.
Amerada Hess Shipping Corp.,
488 U. S. 428,
440 (1989) ("When it desires to do so, Congress knows how to place
the high seas within the jurisdictional reach of a statute"). The
Court of Appeals held that the presumption against
extraterritoriality had "no relevance in the present context"
because there was no risk that § 243(h), which can be enforced
only
been bound by § 243(h)(1). Respondents challenge a program of
interdiction and repatriation established by the President and
enforced by the Coast Guard.
29 See,
e. g., § 1158(a), quoted in n. 11,
supra.
174
in United States courts against the United States Attorney
General, would conflict with the laws of other nations. 969 F. 2d,
at 1358. We have recently held, however, that the presumption has a
foundation broader than the desire to avoid conflict with the laws
of other nations.
Smith v.
United States, 507 U. S. 197, 206-207,
n. 5 (1993).
Respondents' expansive interpretation of the word "return"
raises another problem: It would make the word "deport" redundant.
If "return" referred solely to the destination to which the alien
is to be removed, it alone would have been sufficient to encompass
aliens involved in both deportation and exclusion proceedings. And
if Congress had meant to refer to all aliens who might be sent back
to potential oppressors, regardless of their location, the word
"deport" would have been unnecessary. By using both words, the
statute implies an exclusively territorial application, in the
context of both kinds of domestic immigration proceedings. The use
of both words reflects the traditional division between the two
kinds of aliens and the two kinds of hearings. We can reasonably
conclude that Congress used the two words "deport" and "return"
only to make § 243(h)'s protection available in both deportation
and exclusion proceedings. Indeed, the history of the 1980
amendment confirms that conclusion.
B. The History of the Refugee Act of 1980
As enacted in 1952, § 243(h) authorized the Attorney General to
withhold deportation of aliens "within the United States." 30 Six
years later we considered the question whether it applied to an
alien who had been paroled into the country while her admissibility
was being determined. We held that even though she was physically
present within our borders, she was not "within the United States"
as those words were used in § 243(h).
Leng May Ma v.
Barber, 357
3066 Stat. 214; see also n. 2,
supra.
175
u. S. 185, 186 (1958).31 We explained the important distinction
between "deportation" or "expulsion," on the one hand, and
"exclusion," on the other:
"It is important to note at the outset that our immigration laws
have long made a distinction between those aliens who have come to
our shores seeking admission, such as petitioner, and those who are
within the United States after an entry, irrespective of its
legality. In the latter instance the Court has recognized
additional rights and privileges not extended to those in the
former category who are merely 'on the threshold of initial entry.'
Shaughnessy v. United States ex rel. Mezei, 345 U. S.
206, 212 (1953). See Kwong Hai Ghew v. Golding,
344 U. S. 590,
596 (1953). The distinction was carefully preserved in Title II of
the Immigration and Nationality Act." Id., at 187.
Under the IN A, both then and now, those seeking "admission" and
trying to avoid "exclusion" were already within our territory (or
at its border), but the law treated them as though they had never
entered the United States at all; they were within United States
territory but not "within the United States." Those who had been
admitted (or found their way in) but sought to avoid "expulsion"
had the added benefit of "deportation proceedings"; they were both
within United States territory
and "within the United
States."
Ibid. Although the phrase "within the United
States" presumed the alien's actual presence in the United States,
it had more to do with an alien's legal status than with his
location.
The 1980 amendment erased the long-maintained distinction
between deportable and excludable aliens for purposes of § 243(h).
By adding the word "return" and removing the words "within the
United States" from § 243(h), Congress ex-
31 "We conclude that petitioner's parole did not alter her
status as an excluded alien or otherwise bring her 'within the
United States' in the meaning of §243(h)." 357 U. S., at 186.
176
tended the statute's protection to both types of aliens, but it
did nothing to change the presumption that both types of aliens
would continue to be found only within United States territory. The
removal of the phrase "within the United States" cured the most
obvious drawback of § 243(h): As interpreted in
Leng May Ma,
its protection was available only to aliens subject to deportation
proceedings.
Of course, in addition to this most obvious purpose, it is
possible that the 1980 amendment
also removed any
territorial limitation of the statute, and Congress might have
intended a double-barreled result.32 That possibility, however, is
not a substitute for the affirmative evidence of intended
extraterritorial application that our cases require. Moreover, in
our review of the history of the amendment, we have found no
support whatsoever for that latter, alternative, purpose.
The addition of the phrase "or return" and the deletion of the
phrase "within the United States" are the only relevant changes
made by the 1980 amendment to § 243(h)(1), and they are fully
explained by the intent to apply § 243(h) to exclusion as well as
to deportation proceedings. That intent is plainly identified in
the legislative history of the amendment.33 There is no change in
the 1980 amendment, however, that could only be explained by an
assumption that Congress also intended to provide for the statute's
extraterritorial application. It would have been extraordinary for
Congress to make such an important change in the law without any
mention of that possible effect. Not a scintilla of evidence of
such an intent can be found in the legislative history.
32 Even respondents acknowledge that § 243(h) did not apply
extraterritorially before its amendment. See Brief for Respondents
9, 12.
33 See H. R. Rep. No. 96-608, p. 30 (1979) (the changes "require
... the Attorney General to withhold deportation of aliens who
qualify as refugees and who are in exclusion as well as
deportation, proceedings"); see also S. Rep. No. 96-256, p. 17
(1979).
177
In sum, all available evidence about the meaning of § 243(h)-the
Government official at whom it is directed, its location in the
Act, its failure to suggest any extraterritorial application, the
1980 amendment that gave it a dual reference to "deport or return,"
and the relevance of that dual structure to immigration law in
general-leads unerringly to the conclusion that it applies in only
one context: the domestic procedures by which the Attorney General
determines whether deportable and excludable aliens may remain in
the United States.
IV
Although the protection afforded by § 243(h) did not apply in
exclusion proceedings before 1980, other provisions of the Act did
authorize relief for aliens at the border seeking protection as
refugees in the United States. See
INS v.
Stevie, 467
U. S., at 415-416. When the United States acceded to the Protocol
in 1968, therefore, the INA already offered
some protection
to both classes of refugees. It offered
no such protection
to any alien who was beyond the territorial waters of the United
States, though, and we would not expect the Government to assume a
burden as to those aliens without some acknowledgment of its
dramatically broadened scope. Both Congress and the Executive
Branch gave extensive consideration to the Protocol before
ratifying it in 1968; in all of their published consideration of it
there appears no mention of the possibility that the United States
was assuming any extraterritorial obligations.34 Neverthe-
34 "The President and the Senate believed that the Protocol was
largely consistent with existing law. There are many statements to
that effect in the legislative history of the accession to the
Protocol.
E. g., S. Exec. Rep. No. 14, 90th Cong., 2d
Sess., 4 (1968) ('refugees in the United States have long enjoyed
the protection and the rights which the protocol calls for');
id., at 6, 7 ('the United States already meets the standards
of the Protocol'); see also,
id., at 2; S. Exec. K, 90th
Cong., 2d Sess., III, VII (1968); 114 Congo Rec. 29391 (1968)
(remarks of Sen. Mansfield);
id., at 27757 (remarks of Sen.
Proxmire). And it was 'absolutely clear' that the Protocol would
not 'requir[e] the United States to admit new categories or
178
less, because the history of the 1980 Act does disclose a
general intent to conform our law to Article 33 of the Convention,
it might be argued that the extraterritorial obligations imposed by
Article 33 were so clear that Congress, in acceding to the
Protocol, and then in amending the statute to harmonize the two,
meant to give the latter a correspondingly extraterritorial effect.
Or, just as the statute might have imposed an extraterritorial
obligation that the Convention does not (the argument we have just
rejected), the Convention might have established an
extraterritorial obligation which the statute does not; under the
Supremacy Clause, that broader treaty obligation might then provide
the controlling rule of law.35 With those possibilities in mind we
shall consider both the text and negotiating history of the
Convention itself.
Like the text and the history of § 243(h), the text and
negotiating history of Article 33 of the United Nations Convention
are both completely silent with respect to the Article's possible
application to actions taken by a country outside its own borders.
Respondents argue that the Protocol's broad remedial goals require
that a nation be prevented from repatriating refugees to their
potential oppressors whether or not the refugees are within that
nation's borders. In spite
numbers of aliens.' S. Exec. Rep. No. 14,
supra, at 19.
It was also believed that apparent differences between the Protocol
and existing statutory law could be reconciled by the Attorney
General in administration and did not require any modification of
statutory language. See,
e. g.,
35 United States Const., Art. VI, cl. 2, provides: "This
Constitution, and the Laws of the United States which shall be made
in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the
supreme Law of the Land ... ." In
Murray v.
Schooner
Charming Betsy, 2 Cranch 64, 117-118 (1804), Chief Justice
Marshall wrote that "an act of congress ought never to be construed
to violate the law of nations if any other possible construction
remains ... ." See also
Weinberger v.
Rossi, 456 U. S. 25, 32 (1982);
Clark v.
Allen, 331 U. S. 503, 508-511 (1947);
Cook v.
United States, 288 U. S. 102, 118-120
(1933).
179
of the moral weight of that argument, both the text and
negotiating history of Article 33 affirmatively indicate that it
was not intended to have extraterritorial effect.
A. The Text of the Convention
Two aspects of Article 33's text are persuasive. The first is
the explicit reference in Article 33.2 to the country in which the
alien is located; the second is the parallel use of the terms
"expel or return," the latter term explained by the French word
"refouler."
The full text of Article 33 reads as follows:
"Article 33.-Prohibition of Expulsion or Return
('refoulement')
"1. No Contracting State shall expel or return
('refouler') a refugee in any manner whatsoever to
the frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion.
"2. The benefit of the present provision may not, however, be
claimed by a refugee whom there are reasonable grounds for
regarding as a danger to the security of the country in which he
is, or who, having been convicted by a final judgment of a
particularly serious crime, constitutes a danger to the community
of that country." Convention Relating to the Status of Refugees,
July 28, 1951, 19 U. S. T. 6259, 6276, T. 1. A. S. No. 6577
(emphasis added).
Under the second paragraph of Article 33 an alien may not claim
the benefit of the first paragraph if he poses a danger to the
country in which he is located. If the first paragraph did apply on
the high seas, no nation could invoke the second paragraph's
exception with respect to an alien there: An alien intercepted on
the high seas is in no country at all. If Article 33.1 applied
extraterritorially, therefore, Article 33.2
180
would create an absurd anomaly: Dangerous aliens on the high
seas would be entitled to the benefits of 33.1 while those residing
in the country that sought to expel them would not. It is more
reasonable to assume that the coverage of 33.2 was limited to those
already in the country because it was understood that 33.1
obligated the signatory state only with respect to aliens within
its territory.36
Article 33.1 uses the words "expel or return ('refouler')" as an
obvious parallel to the words "deport or return" in § 243(h)(1).
There is no dispute that "expel" has the same meaning as "deport";
it refers to the deportation or expulsion of an alien who is
already present in the host country. The dual reference identified
and explained in our opinion in
Leng May Ma v.
Barber
suggests that the term "return ('refouler')" refers to the
exclusion of aliens who are merely" 'on the threshold of initial
entry.'" 357 U. S., at 187 (quoting
Shaughnessy v.
United
States ex rel. Mezei, 345 U. S. 206, 212
(1953)).
This suggestion-that "return" has a legal meaning narrower than
its common meaning-is reinforced by the parenthetical reference to
"refouler," a French word that is
not an exact
synonym for the English word "return." Indeed, neither of two
respected English-French dictionaries mentions
"refouler" as
one of many possible French translations
36 Although the parallel provision in § 243(h)(2)(D), 8 U. S. C.
§ 243(h) (2)(D), that was added to the INA in 1980 does not contain
the "country in which he is" language, the general understanding
that it was intended to conform the statute to the Protocol leads
us to give it that reading, particularly since its text is
otherwise so similar to Article 33.2. It provides that § 243(h)(I)
"shall not apply" to an alien if the Attorney General determines
that "there are reasonable grounds for regarding the alien as a
danger to the security of the United States." Thus the statutory
term "security of the United States" replaces the Protocol's term
"security of the country in which he is." The parallel surely
implies that for statutory purposes "the United States" is "the
country in which he is."
181
of "return."37 Conversely, the English translations of
"refouler" do not include the word "return."3S They do,
however, include words like "repulse," "repel," "drive back," and
even "expel." To the extent that they are relevant, these
37 The New Cassell's French Dictionary 440 (1973) gives this
translation: "return (I)
[rita:n], v.i. Revenir (to
come back); retourner (to go back); rentrer (to come in again);
repondre, repliquer (to answer).
To return to the subject,
revenir au sujet,
(jam.) revenir it ses moutons.-v.t. Rendre
(to give back); renvoyer (to send back); rembourser (to repay);
rapporter (interest); repondre it; rendre compte (to render an
account of); elire (candidates).
He was returned, il fut
elu;
the money returns interest, l'argent rapporte interet;
to return good for evil, rendre Ie bien pour Ie mal.-n.
Retour (coming back, going back),
m.; rentree (coming back
in),
f; renvoi (sending back),
m.; remise en place
(putting back),
f; profit, gain (profit),
m.;
restitution (restitution),!; remboursement (reimbursement),
m.; election (election),
f; rapport, compte rendu,
releve, etat (report);
(Comm. montant des operations,
montant des remises; bilan (of a bank),
m.; (pl.) produit,
m. By return of post, par retour du courrier;
in return
for, en retour de;
nil return, etat neant,
m.; on my
return, au retour, comme je revenais chez moi;
on sale or
return, en depot, en commission;
return address, addrese
de l'expediteur,
f; return home, retour au foyer,
m.;
return journey, retour,
m.; return match, revanche,
f; return of casualties, etat des pertes,
m.; small
profits (and) quick returns, petits profits, vente rapide;
the official returns, les releves officiels,
m.pl.; to
make some return for, payer de retour."
Although there are additional translations in the Larousse
Modern French-English Dictionary 545 (1978), "refouler" is not
among them.
38"refouler [rafUle],
V.t. To drive back, to back (train
etc.); to repel; to compress; to repress, to suppress, to inhibit;
to expel (aliens); to refuse entry; to stem (the tide); to tamp; to
tread (grapes etc.) again; to full (stuffs) again; to ram home (the
charge in a gun).
Refouler la maree, to stem, to go against
the tide.-v.i. To ebb, to flow back.
La maree refoule, the
tide is ebbing." Cassell's, at 627.
"refouler [-Ie] v. tr. (1). To stem (1a maree). II NAUT. To stem
(un courant). II TECHN. To drive in (une cheville); to deliver
(1'eau); to full (une etoffe); to compress (un gaz); to hammer, to
fuller (du metal). II MILIT. To repulse (une attaque); to drive
back, to repel (1'ennemi); to ram home (un projectile). II PHILOS.
To repress (un instinct). II CH. DE F. To back (un train). II FIG.
To choke back (un sanglot).
"-v. intr. To flow back (foule); to ebb, to be on the ebb
(maree). liMED.
Refoule, inhibited." Larousse, at 607.
182
translations imply that "return" means a defensive act of
resistance or exclusion at a border rather than an act of
transporting someone to a particular destination. In the context of
the Convention, to "return" means to "repulse" rather than to
"reinstate." 39
The text of Article 33 thus fits with Judge Edwards'
understanding that "'expulsion' would refer to a 'refugee already
admitted into a country' and that 'return' would refer to a
'refugee already within the territory but not yet resident there.'
Thus, the Protocol was not intended to govern parties' conduct
outside of their national borders."
Haitian Refugee Center
v.
Gracey, 257 U. S. App. D. C., at 413, 809 F. 2d, at 840
(footnotes omitted). From the time of the Convention, commentators
have consistently agreed with this view.40
39Under Article 33, after all, a nation is not prevented from
sending a threatened refugee back only to his homeland, or even to
the country that he has most recently departed; in some cases
Article 33 would even prevent a nation from sending a refugee to a
country where he had never been. Because the word "return," in its
common meaning, would make no sense in that situation (one cannot
return, or be returned, to a place one has never been), we think it
means something closer to "exclude" than "send back."
40 See,
e. g., N. Robinson, Convention Relating to
the Status of Refugees:
Its History, Contents and Interpretation 162-163 (1953) ("The
Study on Statelessness[, U. N. Dept. of Social Mfairs 60
(1949),] defined 'expulsion' as 'the juridical decision taken by
the judicial or administrative authorities whereby an individual is
ordered to leave the territory of the country' and 'reconduction'
(which is the equivalent of 'refoulement' and was changed by the Ad
Hoc Committee to the word 'return') as 'the mere physical act of
ejecting from the national territory a person residing therein who
has gained entry or is residing regularly or irregularly.' ... Art.
33 concerns refugees who have gained entry into the territory of a
Contracting State, legally or illegally, but not to refugees who
seek entrance into [the] territory"); 2 A. Grahl-Madsen, The Status
of Refugees in International Law 94 (1972)
("[Non-refoulementJ may only be invoked in respect of
persons who are already present-lawfully or unlawfully-in the
territory of a Contracting State. Article 33 only prohibits the
expulsion or return
(refoulement) of refugees to
territories where they are likely to suffer perse-
183
The drafters of the Convention and the parties to the
Protocol-like the drafters of § 243(h)-may not have contemplated
that any nation would gather fleeing refugees and return them to
the one country they had desperately sought to escape; such actions
may even violate the spirit of Article 33; but a treaty cannot
impose uncontemplated extraterritorial obligations on those who
ratify it through no more than its general humanitarian intent.
Because the text of Article 33 cannot reasonably be read to say
anything at all about a nation's actions toward aliens outside its
own territory, it does not prohibit such actions.41
cution; it does not obligate the Contracting State to admit any
person who has not already set foot on their respective
territories"). A more recent work describes the evolution of
non-refoulement into the international (and possibly
extraterritorial) duty of nonreturn relied on by respondents, but
it also admits that in 1951
non-refoulement had a narrower
meaning, and did not encompass extraterritorial obligations.
Moreover, it describes both "expel" and "return" as terms referring
to one nation's transportation of an alien out of its own territory
and into another. See G. Goodwin-Gill, The Refugee in International
Law 74-76 (1983).
Even the United Nations High Commissioner for Refugees has
implicitly acknowledged that the Convention has no extraterritorial
application. While conceding that the Convention does not mandate
any specific procedure by which to determine whether an alien
qualifies as a refugee, the "basic requirements" his office has
established impose an exclusively territorial burden, and announce
that any alien protected by the Convention (and by its promise of
non-refoulement) will be found either" 'at the border or in
the territory of a Contracting State.' " Office of United Nations
High Commissioner for Refugees, Handbook on Procedures and Criteria
for Determining Refugee Status 46 (Geneva, Sept. 1979) (quoting
Official Records of the General Assembly, Thirty-second Session,
Supplement No. 12 (A/32/12/Add.l), paragraph 53(6)(e)). Those basic
requirements also establish the right of an applicant for refugee
status" 'to remain
in the country pending a decision
on his initial request.' " Handbook on Refugee Status, at 460
(emphasis added).
41 The Convention's failure to prevent the extraterritorial
reconduction of aliens has been generally acknowledged (and
regretted). See Aga Khan, Legal Problems Relating to Refugees and
Displaced Persons, in Hague Academy of Int'l Law, 149 Recueil des
Cours 287, 318 (1976) ("Does the
non-refoulement rule ...
apply ... only to those already within the
184
B. The Negotiating History of the Convention
In early drafts of the Convention, what finally emerged as
Article 33 was numbered 28. At a negotiating conference of
plenipotentiaries held in Geneva, Switzerland, on July 11, 1951,
the Swiss delegate explained his understanding that the words
"expel" and "return" covered only refugees who had entered the host
country. He stated:
"Mr. ZUTTER (Switzerland) said that the Swiss Federal Government
saw no reason why article 28 should not be adopted as it stood; for
the article was a necessary one. He thought, however, that its
wording left room for various interpretations, particularly as to
the meaning to be attached to the words 'expel' and 'return'. In
the Swiss Government's view, the term "expulsion" applied to a
refugee who had already been admitted to the territory of a
country. The term 'refoulement', on the other hand, had a
vaguer meaning; it could not, however, be applied to a refugee
who had not yet entered the territory of a country. The word
'return', used in the English text, gave that idea exactly. Yet
article 28 implied the existence of two categories of refugee:
refugees who were liable to be expelled, and those who were liable
to be returned. In any case, the States represented at the
Conference should take a definite position with regard to the
meaning to be attached to the word 'return'. The Swiss Government
considered that in the
territory of the Contracting State? ... There is thus a serious
gap in refugee law as established by the 1951 Convention and other
related instruments and it is high time that this gap should be
filled"); Robinson, Convention Relating to the Status of Refugees,
at 163 ("[I]f a refugee has succeeded in eluding the frontier
guards, he is safe; if he has not, it is his hard luck. It cannot
be said that this is a satisfactory solution of the problem of
asylum"); Goodwin-Gill, The Refugee in International Law, at 87 ("A
categorical refusal of disembarkation cannot be equated with breach
of the principle of
non-refoulement, even though it may
result in serious consequences for asylum-seekers").
185
present instance the word applied solely to refugees who had
already entered a country, but were not yet resident there.
According to that interpretation, States were not compelled to
allow large groups of persons claiming refugee status to cross its
frontiers. He would be glad to know whether the States represented
at the Conference accepted his interpretations of the two terms in
question. If they did, Switzerland would be willing to accept
article 28, which was one of the articles in respect of which
States could not, under article 36 of the draft Convention, enter a
reservation." (Emphases added.) 42
No one expressed disagreement with the position of the Swiss
delegate on that day or at the session two weeks later when Article
28 was again discussed. At that session, the delegate of the
Netherlands recalled the Swiss delegate's earlier position:
"Baron van BOETZELAER (Netherlands) recalled that at the first
reading the Swiss representative had expressed the opinion that the
word 'expulsion' related to a refugee already admitted into a
country, whereas the word 'return' ('refoulement') related
to a refugee already within the territory but not yet resident
there. According to that interpretation, article 28 would not
have involved any obligations in the possible case of mass
migrations across frontiers or of attempted mass migrations.
"He wished to revert to that point, because the Netherlands
Government attached very great importance to the scope of the
provision now contained in article 33. The Netherlands could not
accept any legal obligations in respect of large groups of refugees
seeking access to its territory.
42 Conference of Plenipotentiaries on the Status of Refugees and
Stateless Persons, Summary Record of the Sixteenth Meeting, U. N.
Doc.
AI CONF.2/SR.16, p. 6 (July 11, 1951).
186
"At the first reading the representatives of Belgium, the
Federal Republic of Germany, Italy, the Netherlands and Sweden had
supported the Swiss interpretation. From conversations he had since
had with other representatives, he had gathered that the general
consensus of opinion was in favour of the Swiss interpretation.
"In order to dispel any possible ambiguity and to reassure his
Government, he wished to have it placed on record that the
Conference was in agreement with the interpretation that the
possibility of mass migrations across frontiers or of attempted
mass migrations was not covered by article 33.
"There being no objection, the PRESIDENT ruled that the
interpretation given by the Netherlands representative should be
placed on record.
"Mr. HOARE (United Kingdom) remarked that the Style Committee
had considered that the word 'return' was the nearest equivalent in
English to the French term 'refoulement'. He assumed that
the word 'return' as used in the English text had no wider
meaning.
"The PRESIDENT suggested that in accordance with the practice
followed in previous Conventions, the French word 'refoulement'
('refouler' in verbal uses) should be included in brackets and
between inverted commas after the English word 'return' wherever
the latter occurred in the text." (Emphasis added.) 43
Although the significance of the President's comment that the
remarks should be "placed on record" is not entirely clear, this
much cannot be denied: At one time there was a "general consensus,"
and in July 1951 several delegates understood the right of
non-refoulement to apply only to
43 Conference of Plenipotentiaries on the Status of Refugees and
Stateless Persons, Summary Record of the Thirty-fifth Meeting, U.
N. Doc.
AI CONF.2/SR.35, pp. 21-22 (July 25,
1951).
187
aliens physically present in the host country.44 There is no
record of any later disagreement with that position. Moreover, the
term
"refouler" was included in the English version of the
text to avoid the expressed concern about an inappropriately broad
reading of the English word "return."
Therefore, even if we believed that Executive Order No. 12807
violated the intent of some signatory states to protect all aliens,
wherever they might be found, from being transported to potential
oppressors, we must acknowledge that other signatory states
carefully-and successfully-sought to avoid just that implication.
The negotiating history, which suggests that the Convention's
limited reach resulted from a deliberate bargain, is not
dispositive, but it solidly supports our reluctance to interpret
Article 33 to impose obligations on the contracting parties that
are broader than the text commands. We do not read that text to
apply to aliens interdicted on the high seas.
V
Respondents contend that the dangers faced by Haitians who are
unwillingly repatriated demonstrate that the judgment of the Court
of Appeals fulfilled the central purpose of the Convention and the
Refugee Act of 1980. While we must, of course, be guided by the
high purpose of both the treaty and the statute, we are not
persuaded that either one places any limit on the President's
authority to repatriate aliens interdicted beyond the territorial
seas of the United States.
It is perfectly clear that 8 U. S. C. § 1182(f), see n. 27,
supra, grants the President ample power to establish a naval
blockade that would simply deny illegal Haitian migrants the
ability to disembark on our shores. Whether the President's chosen
method of preventing the "attempted mass migra-
44 The Swiss delegate's statement strongly suggests, moreover,
that at least one nation's accession to the Convention was
conditioned on this understanding.
188
tion" of thousands of Haitians-to use the Dutch delegate's
phrase-poses a greater risk of harm to Haitians who might otherwise
face a long and dangerous return voyage is irrelevant to the scope
of his authority to take action that neither the Convention nor the
statute clearly prohibits. As we have already noted, Acts of
Congress normally do not have extraterritorial application unless
such an intent is clearly manifested. That presumption has special
force when we are construing treaty and statutory provisions that
may involve foreign and military affairs for which the President
has unique responsibility. Cf.
United States v.
Curtiss-Wright Export Corp., 299 U. S. 304 (1936). We
therefore find ourselves in agreement with the conclusion expressed
in Judge Edwards' concurring opinion in
Gracey, 257 U. S.
App. D. C., at 414, 809 F. 2d, at 841:
"This case presents a painfully common situation in which
desperate people, convinced that they can no longer remain in their
homeland, take desperate measures to escape. Although the human
crisis is compelling, there is no solution to be found in a
judicial remedy."
The judgment of the Court of Appeals is reversed.
It is so ordered.
JUSTICE BLACKMUN, dissenting.
When, in 1968, the United States acceded to the United Nations
Protocol Relating to the Status of Refugees, Jan. 31, 1967, [1968]
19 U. S. T. 6223, T. 1. A. S. No. 6577, it pledged not to "return
('refouler') a refugee in any manner whatsoever" to a place
where he would face political persecution. In 1980, Congress
amended our immigration law to reflect the Protocol's directives.
Refugee Act of 1980, 94 Stat. 102. See
INS v.
Cardoza-Fonseca, 480 U. S. 421, 429,
436-437, 440
(1987); INS v.
Stevie, 467 U. S. 407, 418, 421
(1984). Today's majority nevertheless decides that the forced
repatriation of
189
the Haitian refugees is perfectly legal, because the word
"return" does not mean return,
ante, at 174, 180-182,
because the opposite of "within the United States" is not outside
the United States,
ante, at 175, and because the official
charged with controlling immigration has no role in enforcing an
order to control immigration,
ante, at 171-173.
I believe that the duty of nonreturn expressed in both the
Protocol and the statute is clear. The majority finds it
"extraordinary,"
ante, at 176, that Congress would have
intended the ban on returning "any alien" to apply to aliens at
sea. That Congress would have meant what it said is not remarkable.
What is extraordinary in this case is that the Executive, in
disregard of the law, would take to the seas to intercept fleeing
refugees and force them back to their persecutors-and that the
Court would strain to sanction that conduct.
I
I begin with the Convention,l for it is undisputed that the
Refugee Act of 1980 was passed to conform our law to Article 33,
and that "the nondiscretionary duty imposed by § 243(h) parallels
the United States' mandatory
nonrefoulement obligations
under Article 33.1 .... "
INS v.
Doherty, 502 U. S. 314, 331 (1992)
(SCALIA, J., concurring in judgment in part and dissenting in
part). See also
Cardoza-Fonseca, 480 U. S., at 429, 436-437,
440;
Stevie, 467 U. S., at 418, 421. The Convention thus
constitutes the backdrop against which the statute must be
understood.2
1 United Nations Convention Relating to the Status of Refugees,
July 28,1951,19 U. S. T. 6259, 189 U. N. T. S. 150, T. I. A. S. No.
6577. Because the Protocol to which the United States acceded
incorporated the Convention's Article 33, I shall follow the form
of the majority, see
ante, at 169, n. 19, and shall refer
throughout this dissent (unless the distinction is relevant) only
to the Convention.
2 This Court has recognized that Article 33 has independent
force. See,
e. g., INS v.
Stevie, 467
U. S., at 428-430, n. 22 (By modifying his discretionary practice,
Attorney General '"implemented''' and "honor[ed]" the Protocol's
requirements). Because I agree with the near-universal under-
190
A
Article 33.1 of the Convention states categorically and
without geographical limitation:
"No Contracting State shall expel or return ('refouler')
a refugee in any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened on account of his
race, religion, nationality, membership of a particular social
group or political opinion."
The terms are unambiguous. Vulnerable refugees shall not be
returned. The language is clear, and the command is
straightforward; that should be the end of the inquiry. Indeed,
until litigation ensued, see
Haitian Refugee Center v.
Gracey, 257 U. S. App. D. C. 367,
809
F.2d 794 (1987), the Government consistently acknowledged that
the Convention applied on the high seas.3
The majority, however, has difficulty with the treaty's use of
the term "return
('refouler')." "Return," it claims, does
not mean return, but instead has a distinctive legal meaning.
standing that the obligations imposed by treaty and the statute
are coextensive, I do not find it necessary to rely on the Protocol
standing alone. As the majority suggests, however,
ante, at
178, to the extent that the treaty is more generous than the
statute, the latter should not be read to limit the former.
3 See,
e. g., 5 Op. Off. Legal Counsel 242, 248
(1981) (under proposed interdiction of Haitian flag vessels,
"[i]ndividuals who claim that they will be persecuted ... must be
given an opportunity to substantiate their claims" under the
Convention); United States as a Country of Mass First Asylum:
Hearing before the Subcommittee on Immigration and Refugee Policy
of the Senate Committee on the Judiciary, 97th Cong., 1st Sess.,
208-209 (1981) (letter from Office of Attorney General stating:
"Aliens who have not reached our borders (such as those on board
interdicted vessels) are ... protected ... by the U. N. Convention
and Protocol");
id., at 4 (statement by Thomas O. Enders,
Assistant Secretary of State for InterAmerican Mfairs, regarding
the Haitian interdiction program: "I would like to also underscore
that we intend fully to carry out our obligations under the U. N.
Protocol on the status of refugees").
191
Ante, at 180. For this proposition the Court relies
almost entirely on the fact that
American law makes a
general distinction between
deportation and
exclusion. Without explanation, the majority asserts that in
light of this distinction the word "return" as used in the treaty
somehow must refer only to "the exclusion of aliens who are ... 'on
the threshold of initial entry.'''
Ibid. (citation
omitted).
Setting aside for the moment the fact that respondents in this
case seem very much "on the threshold of initial entry"-at least in
the eyes of the Government that has ordered them seized for
"attempting to come to the United States by sea without necessary
documentation," Preamble to Exec. Order No. 12807, 57 Fed. Reg.
23133 (1992)-1 find this tortured reading unsupported and
unnecessary. The text of the Convention does not ban the
"exclusion" of aliens who have reached some indeterminate
"threshold"; it bans their "return." It is well settled that a
treaty must first be construed according to its "ordinary meaning."
Article 31.1 of the Vienna Convention on the Law of Treaties, 1155
U. N. T. S. 331, T. S. No. 58 (1980), 8 1. L. M. 679 (1969). The
ordinary meaning of "return" is "to bring, send, or put (a person
or thing) back to or in a former position." Webster's Third New
International Dictionary 1941 (1986). That describes precisely what
petitioners are doing to the Haitians. By dispensing with ordinary
meaning at the outset, and by taking instead as its starting point
the assumption that "return," as used in the treaty, "has a legal
meaning narrower than its common meaning,"
ante, at 180, the
majority leads itself astray.
The straightforward interpretation of the duty of nonreturn is
strongly reinforced by the Convention's use of the French term
"refouler." The ordinary meaning of
"refouler," as
the majority concedes,
ante, at 181-182, is "[t]o repulse,
... ; to drive back, to repel." Larousse Modern French-
192
English Dictionary 631 (1981).4 Thus construed, Article 33.1 of
the Convention reads: "No contracting state shall expel or
[repulse, drive back, or repel] a refugee in any manner whatsoever
to the frontiers of territories where his life or freedom would be
threatened .... " That, of course, is exactly what the Government
is doing. It thus is no surprise that when the French press has
described the very policy challenged here, the term it has used is
"refouler." See,
e. g., Le bourbier
hai'tien, Le Monde, May 31-June 1, 1992 ("[L]es Etats-Unis ont
decide de refouler directement les refugies recueillis par la garde
cotiere." (The United States has decided [de refouler] directly the
refugees picked up by the Coast Guard)).
And yet the majority insists that what has occurred is not, in
fact,
"refoulement." It reaches this conclusion in a
peculiar fashion. After acknowledging that the ordinary meaning of
"refouler" is "repulse," "repel," and "drive back," the
majority without elaboration declares: "To the extent that they are
relevant, these translations imply that 'return' means a defensive
act of resistance or exclusion at a border .... "
Ante, at
181-182. I am at a loss to find the narrow notion of "exclusion at
a border" in broad terms like "repulse," "repel," and "drive back."
Gage was repulsed (initially) at Bunker Hill. Lee was repelled at
Gettysburg. Rommel was driven back across North Africa. The
majority's puzzling progression
("refouler" means repel or
drive back; therefore "return" means only exclude at a border;
therefore the treaty does not apply) hardly justifies a departure
from the path of ordinary meaning. The text of Article
4 The Court seems no more convinced than I am by petitioners'
argument that "refouler" is best translated as "expel." See Brief
for Petitioners 38-39. That interpretation, as the Second Circuit
observed, would leave the treaty redundantly forbidding a nation to
"expel" or "expel" a refugee.
Haitian Centers Council, Inc.
v.
McNary, 969 F.2d
1350, 1363 (1992).
193
33.1 is clear, and whether the operative term is "return" or
"refouler," it prohibits the Government's actions.5
Article 33.1 is clear not only in what it says, but also in what
it does not say: It does not include any geographical limitation.
It limits only where a refugee may be sent "to," not where he may
be sent from. This is not surprising, given that the aim of the
provision is to protect refugees against persecution.
Article 33.2, by contrast,
does contain a geographical
reference, and the majority seizes upon this as evidence that the
section as a whole applies only within a signatory's borders. That
inference is flawed. Article 33.2 states that the benefit of
Article 33.1
"may not ... be claimed by a refugee whom there are reasonable
grounds for regarding as a danger to the security of the country in
which he is, or who, having been convicted by a final judgment of a
particularly serious crime, constitutes a danger to the community
of that country."
The signatories' understandable decision to allow nations to
deport criminal aliens who have entered their territory hardly
suggests an intent to permit the apprehension and return of
noncriminal aliens who have not entered their territory, and who
may have no desire ever to enter it. One wonders what the majority
would make of an exception that
5 I am surprised by the majority's apparent belief that (a) the
translations of
"refouler" are of uncertain relevance ("To
the extent that they are relevant, these translations imply ... "),
and (b) the term
"refouler" is pertinent only as an aid to
understanding the meaning of the English word "return" ("these
translations imply that 'return' means ... ").
Ante, at
181-182. The first assumption suggests disregard for the basic rule
that consideration of a treaty's ordinary meaning must be the first
step in its interpretation. The second assumption, by neglecting to
treat the term
"refouler" as significant in and of itself,
overlooks the fact that under Article 46 the French and English
versions of the Convention's text are equally authoritative.
194
removed from the Article's protection all refugees who
"constitute a danger to their families." By the majority's logic,
the inclusion of such an exception presumably would render Article
33.1 applicable only to refugees with families.
Far from constituting "an absurd anomaly,"
ante, at 180,
the fact that a state is permitted to "expel or return" a small
class of refugees found within its territory but may not seize and
return refugees who remain outside its frontiers expresses
precisely the objectives and concerns of the Convention. Nonreturn
is the rule; the sole exception (neither applicable nor invoked
here) is that a nation endangered by a refugee's very presence may
"expel or return" him to an unsafe country if it chooses. The
tautological observation that only a refugee already in a country
can pose a danger to the country "in which he is" proves
nothing.
B
The majority further relies on a remark by Baron van Boetzelaer,
the Netherlands' delegate at the Convention's negotiating
conference, to support its contention that Article 33 does not
apply extraterritorially. This reliance, for two reasons, is
misplaced. First, the isolated statement of a delegate to the
Convention cannot alter the plain meaning of the treaty itself.
Second, placed in its proper context, Van Boetzelaer's comment does
not support the majority's position.
It is axiomatic that a treaty's plain language must control
absent "extraordinarily strong contrary evidence."
Sumitomo
Shoji America, Inc. v.
Avagliano, 457 U. S. 176, 185
(1982). See also
United States v.
Stuart, 489 U. S. 353, 371 (1989)
(SCALIA, J., concurring in judgment);
id., at 370 (KENNEDY,
J., concurring in part and concurring in judgment). Reliance on a
treaty's negotiating history
(travaux preparatoires) is a
disfavored alternative of last resort, appropriate only where the
terms of the document are obscure or lead to "manifestly absurd or
unreasonable" results. See Vienna
195
Convention on the Law of Treaties, Art. 32, 1155 U. N. T. S., at
340, 8 1. L. M., at 692. Moreover, even the general rule of treaty
construction allowing limited resort to
travaux
preparatoires "has no application to oral statements made by
those engaged in negotiating the treaty which were not embodied in
any writing and were not communicated to the government of the
negotiator or to its ratifying body."
Arizona v.
California, 292 U. S. 341, 360
(1934). There is no evidence that the comment on which the majority
relies was ever communicated to the United States Government or to
the Senate in connection with the ratification of the Protocol.
The pitfalls of relying on the negotiating record are
underscored by the fact that Baron van Boetzelaer's remarks almost
certainly represent, in the words of the United Nations High
Commissioner for Refugees, a mere "parliamentary gesture by a
delegate whose views did
not prevail upon the negotiating
conference as a whole" (emphasis in original). Brief for Office of
United Nations High Commissioner for Refugees as
Amicus
Curiae 24. The Baron, like the Swiss delegate whose sentiments
he restated, expressed a desire to reserve the right to
close
borders to
large groups of refugees. "According to [the
Swiss delegate's] interpretation, States were not compelled to
allow large groups of persons claiming refugee status to cross
[their] frontiers." Conference of Plenipotentiaries on the Status
of Refugees and Stateless Persons, Summary Record of the Sixteenth
Meeting, U. N. Doc. A/CONF.2/SR.16, p. 6 (July 11, 1951). Article
33, Van Boetzelaer maintained, "would not have involved any
obligations in the possible case of mass migrations across
frontiers or of attempted mass migrations" and this was important
because "[t]he Netherlands could not accept any legal obligations
in respect of large groups of refugees seeking access to its
territory." Conference of Plenipotentiaries on the Status of
Refugees and Stateless Persons, Summary Record of the Thirty-fifth
Meeting, U. N. Doc. A/CONF.2/ SR.35, pp. 21-22 (July 25, 1951)
(hereafter A/Conf.2/SR.35).
196
Yet no one seriously contends that the treaty's protections
depend on the number of refugees who are fleeing persecution.
Allowing a state to disavow "any obligations" in the case of mass
migrations or attempted mass migrations would eviscerate Article
33, leaving it applicable only to "small" migrations and "small"
attempted migrations.
There is strong evidence as well that the Conference rejected
the right to close land borders where to do so would trap refugees
in the persecutors' territory.6 Indeed, the majority agrees that
the Convention
does apply to refugees who have reached the
border.
Ante, at 181-182. The majority thus cannot maintain
that Van Boetzelaer's interpretation prevailed.
6 In proceedings prior to that at which Van Boetzelaer made his
remarks, the Ad Hoc Committee delegates from France, Belgium, and
the United Kingdom had made clear that the principle of
non-refoulement, which existed only in France and Belgium,
did proscribe the rejection of refugees at a country's
frontier. Ad Hoc Committee on Statelessness and Related Problems,
Summary Record of the Twenty-First Meeting, U. N. Doc.
E/AC.32/SR.21, pp. 4-5 (1950). Consistent with the United States'
historically strong support of nonreturn, the United States
delegate to the Committee, Louis Henkin, confirmed this:
''Whether it was a question of closing the frontier to a refugee
who asked admittance, or of turning him back after he had crossed
the frontier, or even of expelling him after he had been admitted
to residence in the territory, the problem was more or less the
same.
''Whatever the case might be ... he must not be turned back to a
country where his life or freedom could be threatened. No
consideration of public order should be allowed to overrule that
guarantee, for if the State concerned wished to get rid of the
refugee at all costs, it could send him to another country or place
him in an internment camp." Ad Hoc Committee on Statelessness and
Related Problems, Summary Record of the Twentieth Meeting, U. N.
Doc. E/AC.32/SR.20, n 54 and 55, pp. 1112 (1950).
Speaking next, the Israeli delegate to the Ad Hoc Committee
concluded:
"The Committee had already settled the humanitarian question of
sending any refugee ... back to a territory where his life or
liberty might be in danger."
Id.,' 61, at 13.
197
That it did not is evidenced by the fact that Baron van
Boetzelaer's interpretation was merely "placed on record," unlike
formal amendments to the Convention which were "agreed to" or
"adopted." 7 It should not be assumed that other delegates agreed
with the comment simply because they did not object to their
colleague's request to memorialize it, and the majority's statement
that "this much cannot be denied: At one time there was a 'general
consensus,'"
ante, at 186, is wrong. All that can be said is
that at one time Baron van Boetzelaer remarked that "he had
gathered" that there was a general consensus, and that his
interpretation was placed on record.
In any event, even if Van Boetzelaer's statement
had been
"agreed to" as reflecting the dominant view, this is not a case
about the right of a nation to close its borders. This is a case in
which a Nation has gone forth to
seize aliens who are
not at its borders and
return them to persecution.
Nothing in the comments relied on by the majority even hints at an
intention on the part of the drafters to countenance a course of
conduct so at odds with the Convention's basic purpose.8
7 See,
e. g., A/Conf.2/SR.35, at 22 ("adopt[ing]
unanimously" the proposal to place the word
"refouler"
alongside the word "return";
ibid. ("adopt[ing] unanimously"
the suggestion that the words "membership of a particular social
group" be inserted);
ibid. ("agree[ing]" to changes in the
actual wording of Article 33).
8 The majority also cites secondary sources that, it claims,
share its reading of the Convention. See
ante, at 182-184,
nn. 40 and 41. Not one of these authorities suggests that any
signatory nation sought to reserve the right to seize refugees
outside its territory and forcibly return them to their
persecutors. Indeed, the first work cited explains that the entire
reason for the drafting of Article 33 was "the consideration that
the turning back of a refugee to the frontiers of a country where
his life or freedom is threatened on account of race or similar
grounds would be tantamount to delivering him into the hands of his
persecutors." N. Robinson, Convention Relating to the Status of
Refugees: Its History, Contents and Interpretation 161 (1953).
These sources emphasize instead
198
In sum, the fragments of negotiating history upon which the
majority relies are not entitled to deference, were never voted on
or adopted, probably represent a minority view, and in any event do
not address the issue in this case. It goes without saying,
therefore, that they do not provide the "extraordinarily strong
contrary evidence,"
Sumitomo Shoji America, Inc., 457 U. S.,
at 185, required to overcome the Convention's plain statement: "No
Contracting State shall expel or return
('refouler') a
refugee in any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened .... "
that nations need not
admit refugees or grant them
asylum-questions not at issue here. See,
e.
g., 2 A. Grahl-Madsen, The Status of Refugees in
International Law 94 (1972) ("Article 33 only prohibits the
expulsion or return
(refoulement) of refugees to territories
where they are likely to suffer persecution; it does not obligate
the Contracting States to
admit any person who has not
already set foot on their respective territories") (emphasis
added); G. Goodwin-Gill, The Refugee in International Law 87 (1983)
("[A] categorical refusal of disembarkation cannot be equated with
breach of the principle of
non-refoulement, even though it
may result in serious consequences for
asylum-seekers")
(emphasis added); Aga Khan, Legal Problems Relating to Refugees and
Displaced Persons, in Hague Academy of Int'l Law, 149 Recuil des
Cours 287, 318 (1976) ("Does the
non-refoulement rule thus
laid down apply to refugees who present themselves at the frontier
or only to those who are already within the territory of the
Contracting State? .... It is intentional that the Convention fails
to mention
asylum as a right which the contracting States
would undertake to grant to a refugee who, presenting himself at
their frontiers, seeks the benefit of it .... There is thus a
serious gap in refugee law as established by the 1951 Convention
and other related instruments and it is high time that this gap
should be filled") (emphasis added). The majority also cites
incidental territorial references in the 1979 Handbook on
Procedures and Criteria for Determining Refugee Status as
"implici[t] acknowledg[ment]" that the United Nations High
Commissioner for Refugees subscribes to their view that the
Convention has no extraterritorial application.
Ante, at
183, n. 40. The majority neglects to point out that the current
High Commissioner for Refugees acknowledges that the Convention
does apply extraterritorially. See Brief for United Nations
High Commissioner for Refugees as
Amicus Curiae.
199
II A
Like the treaty whose dictates it embodies, § 243(h) of the
Immigration and Nationality Act of 1952 (INA) is unambiguous. It
reads:
"The Attorney General shall not deport or return any alien ...
to a country if the Attorney General determines that such alien's
life or freedom would be threatened in such country on account of
race, religion, nationality, membership in a particular social
group, or political opinion." 8 U. S. C. § 1253(h)(1) (1988 ed.,
Supp. IV).
"With regard to this very statutory scheme, we have considered
ourselves bound to assume that the legislative purpose is expressed
by the ordinary meaning of the words used."
Cardoza-Fonseca,
480 U. S., at 431 (internal quotation marks omitted). Ordinary, but
not literal. The statement that "the Attorney General shall not
deport or return any alien" obviously does not mean simply that the
person who is the Attorney General at the moment is forbidden
personally to deport or return any alien, but rather that her
agents may not do so. In the present case the Coast Guard without
question is acting as the agent of the Attorney General. "The
officers of the Coast Guard insofar as they are engaged ... in
enforcing any law of the United States shall ... be deemed to be
acting as agents of the particular executive department ... charged
with the administration of the particular law ... and ... be
subject to all the rules and regulations promulgated by such
department ... with respect to the enforcement of that law." 14 U.
S. C. §89(b). The Coast Guard is engaged in enforcing the
immigration laws. The sole identified purpose of Executive Order
No. 12807 is to address the "serious problem of persons attempting
to come to the United States by sea without necessary documentation
and otherwise illegally." 57 Fed. Reg. 23133
200
(1992). The Coast Guard's task under the order is "to enforce
the suspension of the entry of undocumented aliens by sea and the
interdiction of any defined vessel carrying such aliens."
Ibid. The Coast Guard is authorized to return a vessel and
its passengers
only "when there is reason to believe that an
offense is being committed against the United States immigration
laws, or appropriate laws of a foreign country with which we have
an arrangement to assist."
Id., at 23134.
The majority suggests indirectly that the law which the Coast
Guard enforces when it carries out the order to return a vessel
reasonably believed to be violating the immigration laws is somehow
not a law that the Attorney General is charged with administering.
Ante, at 171-173. That suggestion is baseless. Under 8 U. S.
C. § l103(a), the Attorney General, with some exceptions, "shall be
charged with the administration and enforcement of this chapter and
all other laws relating to the immigration and naturalization of
aliens .... " The majority acknowledges this designation, but
speculates that the particular enforcement of immigration laws here
may be covered by the exception for laws relating to "'the powers,
functions, and duties conferred upon the President, the Secretary
of State, the officers of the Department of State, or diplomatic or
consular officers .... '"
Ante, at 171.9 The majority fails
to point out the proviso
9 The Executive Order at issue cited as authority 8 U. S. C. §
1182(f), which allows the President to restrict or "for such period
as he shall deem necessary, suspend the entry of all aliens or any
class of aliens as immigrant or nonimmigrants." The Haitians, of
course, do not claim a right of entry.
Indeed, the very invocation of this section in this context is
somewhat of a stretch. The section pertains to the President's
power to interrupt for as long as necessary
legal entries
into the United States. Illegal entries cannot be "suspended"-they
are already disallowed. Nevertheless, the Proclamation on which the
Order relies declares, solemnly and hopefully: "The entry of
undocumented aliens from the high seas is hereby
201
that directly follows the exception:
"Provided, however,
That ... the Attorney General .... shall have the power and duty to
control and guard the boundaries and borders of the United States
against the illegal entry of aliens .... " There can be no doubt
that the Coast Guard is acting as the Attorney General's agent when
it seizes and returns undocumented aliens.
Even the challenged Executive Order places the Attorney General
"on the boat" with the Coast Guard.10 The Order purports to give
the Attorney General "unreviewable discretion" to decide that an
alien will not be returned.ll Discretion not to return an alien is
of course discretion to return him. Such discretion cannot be
given; Congress removed it in 1980 when it amended the INA to make
mandatory
("shall not deport or
return") what had
been a discretionary function ("The Attorney General is authorized
to withhold deportation"). The Attorney General may not decline to
follow the command of § 243(h). If she encounters a refugee, she
must not return him to persecution.
The laws that the Coast Guard is engaged in enforcing when it
takes to the seas under orders to prevent aliens from illegally
crossing our borders are laws whose administration has been
assigned to the Attorney General by Congress, which has plenary
power over immigration matters.
Kleindienst v.
Mandel, 408 U.
S. 753, 766 (1972). Accordingly, there is no merit to the
argument that the concomitant legal restrictions placed on the
Attorney General by Congress do not apply with full force in this
case.
suspended .... " Presidential Proclamation No. 4865, 3 CFR 50,51
(19811983 Comp.).
10 Of course the Attorney General's authority is not dependent
on its recognition in the Order.
11 "[T]he Attorney General, in his unreviewable discretion, may
decide that a person who is a refugee will not be returned without
his consent."
202
B
Comparison with the pre-1980 version of § 243(h) confirms that
the statute means what it says. Before 1980, § 243(h) provided:
"The Attorney General is authorized to withhold
deportation of any alien ... within the United States to
any country in which in his opinion the alien would be subject to
persecution on account of race, religion, or political opinion and
for such period of time as he deems to be necessary for such
reason." 8 U. S. C. § 1253(h) (1976 ed., Supp. III) (emphasis
added).
The Refugee Act of 1980 explicitly amended this provision in
three critical respects. Congress (1) deleted the words "within the
United States"; (2) barred the Government from "return[ing]," as
well as "deport[ing]," alien refugees; and (3) made the prohibition
against return mandatory, thereby eliminating the discretion of the
Attorney General over such decisions.
The import of these changes is clear. Whether "within the United
States" or not, a refugee may not be returned to his persecutors.
To read into § 243(h)'s mandate a territorial restriction is to
restore the very language that Congress removed. "Few principles of
statutory construction are more compelling than the proposition
that Congress does not intend
sub silentio to enact
statutory language that it has earlier discarded in favor of other
language."
INS v.
CardozaFonseca, 480 U. S., at
442-443 (citations omitted). Moreover, as all parties to this case
acknowledge, the 1980 changes were made in order to conform our law
to the United Nations Protocol. As has been shown above, that
treaty's absolute ban on
refoulement is similarly devoid of
territorial restrictions.
The majority, however, downplays the significance of the
deletion of "within the United States" to improvise a unique
203
meaning for "return." 12 It does so not by analyzing Article 33,
the provision that inspired the 1980 amendments,13 but by reference
to a lone case from this Court that is not even mentioned in the
legislative history and that had been on the books a full 22 years
before the amendments' enactment.
In
Leng May Ma v.
Barber, 357 U. S. 185 (1958),
this Court decided that aliens paroled into the United States from
detention at the border were not "within the United States" for
purposes of the former § 243(h) and thus were not entitled to its
benefits. Pointing to this decision, the majority offers the
negative inference that Congress' removal of the words "within the
United States" was meant only to extend a right of nonreturn to
those in exclusion proceedings. But nothing in
Leng May Ma
even remotely suggests that the
only persons not "within the
United States" are those involved in exclusion proceedings. Indeed,
such a suggestion would have been ridiculous. Nor does the narrow
concept of exclusion relate in any obvious way to the amendment's
broad phrase "return any alien."
The problems with the majority's
Leng May Ma theory run
deeper, however. When Congress in 1980 removed the
12 The word "return" is used throughout the INA; in no instance
is there any indication that the word has a specialized meaning.
See,
e. g., 8 U. S. C. §§ 1l01(a)(27)(A)
("special immigrant" is one lawfully admitted "who is
returning from a temporary visit abroad" (emphasis added));
1l01(a)(42)(A) ("refugee" is a person outside his own country who
is "unable or unwilling to
return to" his country because of
persecution (emphasis added)); 1182(a)(7)(B)(i)(I) (nonimmigrant
who does not possess passport authorizing him "to
return to
the country from which" he came is excludable (emphasis added));
1252(a)(1) (deportable alien's parole may be revoked and the alien
"returned to custody" (emphasis added)); 1353 (travel
expenses will be paid for INS officers who "become eligible for
voluntary retirement and
return to the United States"
(emphasis added)). It is axiomatic that "identical words used in
different parts of the same act are intended to have the same
meaning."
Atlantic Cleaners &
Dyers, Inc. v.
United States, 286 U. S. 427,433
(1932).
13 Indeed, reasoning backwards, the majority actually looks to
the
American scheme to illuminate the
treaty. See
ante, at 180-181.
204
phrase "within the United States," it did not substitute any
other geographical limitation. This failure is exceedingly strange
in light of the majority's hypothesis that the deletion was
intended solely to work the particular technical adjustment of
extending protection to those physically present in, yet not
legally admitted to, the United States. It is even stranger given
what Congress did elsewhere in the Act. The Refugee Act revised the
immigration code to establish a comprehensive, tripartite system
for the protection of refugees fleeing persecution.14 Section 207
governs overseas refugee processing. Section 208, in turn, governs
asylum claims by aliens "physically present in the United States,
or at a land border or port of entry." Unlike these sections,
however, which explicitly apply to persons present in specific
locations, the amended § 243(h) includes no such limiting language.
The basic prohibition against forced return to persecution applies
simply to "any alien." The design of all three sections is
instructive, and it undermines the majority's assertion that §
243(h) was meant to apply only to aliens physically present in the
United States or at one of its borders. When Congress wanted a
provision to apply only to aliens "physically present in the United
States, or at a land border or port of entry," it said so. See §
208(a).15 An examination
14 For this reason, the majority is mistaken to find any
significance in the fact that the ban on return is located in the
part of the INA that deals as well with the deportation and
exclusion hearings in which requests for asylum or for withholding
of deportation "are ordinarily advanced."
Ante, at 173.
15 Congress used the words "physically present within the United
States" to delimit the reach not just of § 208 but of sections
throughout the INA. See,
e. g., 8 U. S. C. §§ 1159
(adjustment of refugee status); 1101(a)(27)(I) (defining "special
immigrant" for visa purposes); 1254(a)(1)(2) (eligibility for
suspension of deportation); 1255a(a)(3) (requirements for temporary
resident status); 1401(d), (e), (g) (requirements for nationality
but not citizenship at birth); 1409(c) (requirements for
nationality status for children born out of wedlock); 1503(b)
(requirement for appeal of denial of nationality status); and
1254a(c)(1)(A)(i), (c)(3)(B) (requirements for tem-
205
of the carefully designed provisions of the INA-not an elaborate
theory about a 1958 case regarding the rights of aliens in
exclusion proceedings-is the proper basis for an analysis of the
statute.16
C
That the clarity of the text and the implausibility of its
theories do not give the majority more pause is due, I think, to
the majority's heavy reliance on the presumption against
extraterritoriality. The presumption runs throughout the majority's
opinion, and it stacks the deck by requiring the Haitians to
produce "affirmative evidence" that when Congress prohibited the
return of "any" alien, it indeed meant to prohibit the interception
and return of aliens at sea.
The judicially created canon of statutory construction against
extraterritorial application of United States law has no role here,
however. It applies only where congressional intent is
"unexpressed."
EEOC v.
Arabian American Oil Co.,
499 U. S. 244,
248-259 (1991);
Foley Bros., Inc. v.
Filardo,
336 U. S. 281,
285 (1949). Here there is no room for
porary protected status). The majority offers no hypothesis for
why Congress would not have done so here as well.
16 Even if the majority's
Leng May Ma proposition were
correct, it would not support today's result. Leng May Ma was an
excludable alien who had been in custody but was paroled into the
United States. The Court determined that her parole did not change
her legal status, and therefore that her case should be analyzed as
if she were still "in custody." The Court then explained that "the
detention of an alien in custody pending determination of his
admissibility does not legally constitute an entry though the alien
is physically within the United States," and stated: "It seems
quite clear that an alien so confined would not be 'within the
United States' for purposes of § 243(h)." 357 U. S., at 188.
Leng May Ma stands for the proposition that aliens in
custody who have not made legal entries-including, but not limited
to, those who are granted the privilege of parole-are legally
outside the United States. According to the majority, Congress
deleted the territorial reference in order to extend protection to
such aliens. By the majority's own reasoning, then, § 243(h)
applies to unadmitted aliens held in United States custody. That,
of course, is exactly the position in which the interdicted
Haitians find themselves.
206
doubt: A territorial restriction has been deliberately deleted
from the statute.
Even where congressional intent is unexpressed, however, a
statute must be assessed according to its intended scope. The
primary basis for the application of the presumption (besides the
desire-not relevant here-to avoid conflict with the laws of other
nations) is "the commonsense notion that Congress generally
legislates with domestic concerns in mind."
Smith v.
United States, 507 U. S. 197, 204, n. 5
(1993). Where that notion seems unjustified or unenlightening,
however, generally worded laws covering varying subject matters are
routinely applied extraterritorially. See,
e. g.,
Hellenic Lines Ltd. v.
Rhoditis, 398 U. S. 306 (1970)
(extraterritorial application of the Jones Act);
Steele v.
Bulova Watch Co., 344 U. S. 280 (1952)
(Lanham Act applies extraterritorially);
Kawakita v.
United States, 343 U. S. 717 (1952)
(extraterritorial application of treason statute);
Ford v.
United States, 273 U. S. 593, 602 (1927)
(applying National Prohibition Act to high seas despite its silence
on issue of extraterritoriality) .
In this case we deal with a statute that regulates a
distinctively international subject matter: immigration,
nationalities, and refugees. Whatever force the presumption may
have with regard to a primarily domestic statute evaporates in this
context. There is no danger that the Congress that enacted the
Refugee Act was blind to the fact that the laws it was crafting had
implications beyond this Nation's borders. The "commonsense notion"
that Congress was looking inwards-perfectly valid in a case
involving the Federal Tort Claims Act, such as
Smith,-cannot
be reasonably applied to the Refugee Act of 1980.
In this regard, the majority's dictum that the presumption has
"special force" when we construe "statutory provisions that may
involve foreign and military affairs for which the President has
unique responsibility,"
ante, at 188, is completely wrong.
The presumption that Congress did not in-
207
tend to legislate extraterritorially has
less
force-perhaps, indeed, no force at all-when a statute on its face
relates to foreign affairs. What the majority appears to be getting
at, as its citation to
United States v.
Curtiss-Wright
Export Corp., 299
U. S. 304 (1936), suggests,
ante, at 188, is that in
some areas, the President, and not Congress, has sole
constitutional authority. Immigration is decidedly not one of those
areas. "'[O]ver no conceivable subject is the legislative power of
Congress more complete .... '"
Fiallo v.
Bell,
430 U. S. 787,
792 (1977), quoting
Oceanic Steam Navigation Co. v.
Stranahan, 214
U. S. 320, 339 (1909). And the suggestion that the President
somehow is acting in his capacity as Commander in Chief is thwarted
by the fact that nowhere among Executive Order No. 12807's numerous
references to the immigration laws is that authority even once
invokedP
If any canon of construction should be applied in this case, it
is the well-settled rule that "an act of congress ought never to be
construed to violate the law of nations if any other possible
construction remains."
Murray v.
Schooner Charming
Betsy, 2 Cranch 64, 117-118 (1804). The majority's improbable
construction of § 243(h), which flies in the face of the
international obligations imposed by Article 33 of the Convention,
violates that established principle.
III
The Convention that the Refugee Act embodies was enacted largely
in response to the experience of Jewish refugees in Europe during
the period of World War II. The tragic consequences of the world's
indifference at that time are well known. The resulting ban on
refoulement, as broad as the humanitarian purpose that
inspired it, is easily appli-
17 Indeed, petitioners are hard pressed to argue that restraints
on the Coast Guard infringe upon the Commander in Chief's power
when the President himself has placed that agency under the direct
control of the Department of Transportation. See Declaration of
Admiral Leahy, App. 233.
208
cable here, the Court's protestations of impotence and regret
notwithstanding.
The refugees attempting to escape from Haiti do not claim a
right of admission to this country. They do not even argue that the
Government has no right to intercept their boats. They demand only
that the United States, land of refugees and guardian of freedom,
cease forcibly driving them back to detention, abuse, and death.
That is a modest plea, vindicated by the treaty and the statute. We
should not close our ears to it.
I dissent.
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