SALE, ACTING COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE, ET AL. v. HAITIAN CENTERS COUNCIL, INC., ET AL.
No. 92-344
Supreme Court of the United States
Argued March 2, 1993—Decided June 21, 1993
509 U.S. 155
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
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.
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
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 сountry 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
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 nо person who is a refu-
In the ensuing decade, the Coast Guard interdicted approximately 25,000 Haitian migrants.10 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-
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
In the meantime the Haitian exodus expanded dramatically. During the six months after October 1991, the Coаst 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),
On May 23, 1992, President Bush adopted the second choice.13 After assuming office, President Clinton decided
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 the destruction of their property because of their political beliefs and affiliations“; and that thousands of Haitian refugees “have set out in small boats that
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 оf 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
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
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
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 INA
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 “understоod” 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
“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.)
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
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 U. S. 185
“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 Chew v. Colding, 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 INA, 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 excludablе aliens for purposes of
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
IV
Although the protection afforded by
Like the text and the history of
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. I. 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
Article 33.1 uses the words “expel or return (‘refouler‘)” as an obvious parallel to the words “deport or return” in
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
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 Rеfugee Center v. Gracey, 257 U. S. App. D. C. 367, 413, 809 F. 2d 794, 840 (1987) (footnotes omitted). From the time of the Convention, commentators have consistently agreed with this view.40
The drafters of the Convention and the parties to the Protocol—like the drafters of
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 Stаtes 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
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.
At the first reading the representatives of Bеlgium, 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
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
“This case presents a painfully common situation in which desperate people, convinced that they cаn 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. I. 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. Stevic, 467 U. S. 407, 418, 421 (1984). Today‘s majority nevertheless decides that the forced repatriation of
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,1 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
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 frеedom 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.
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)—I 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 I. 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 thе 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-
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
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 sеnt 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
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, tо 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 préparatoires) 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
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 rеfugees. “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).
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.
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
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 . . . .”
A
Like the treaty whose dictates it embodies,
“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.”
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
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.11 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
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.
Comparison with the pre-1980 version of
“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
The majority, however, downplays the significance of the deletion of “within the United States” to improvise a unique
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
The problems with the majority‘s Leng May Ma theory run deeper, however. When Congress in 1980 removed the
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
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-
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
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-
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.
Notes
“(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 bе threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.”
Section 243(h)(2),
“(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
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.”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, ¶¶ 54 and 55, pp. 11-12 (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.
The majority also cites secondary sources that, it claims, share its reading of the Convention. Sеe 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
The Executive Order at issue cited as authority
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
“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. Stevic, 467 U. S., at 415.
Of course the Attorney General‘s authority is not dependent on its recognition in the Order.Seсtion 1158(a) provides: “The Attorney General shall establish a procedure for any 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).
“[T]he Attorney General, in his unreviewable discretion, may decide that a person who is a refugee will not be returned without his consent.”“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 (
“(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 (U. S. T. I. A. S. 6577; 19 U. 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-
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-
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.
Indeed, reasoning backwards, the majority actually looks to the American scheme to illuminate the treaty. See ante, at 180-181.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.,