Sale v. Haitian Centers Council, Inc.

PETITIONER:Chris Sale, Acting Commissioner, Immigration And Naturalization Service, et al.
RESPONDENT:Haitian Centers Council, Inc., et al.
LOCATION:White House

DOCKET NO.: 92-344
DECIDED BY: Rehnquist Court (1991-1993)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 509 US 155 (1993)
ARGUED: Mar 02, 1993
DECIDED: Jun 21, 1993

Harold Hongju Koh – on behalf of the Respondents
Maureen E. Mahoney – Deputy Solicitor General, Department of Justice, on behalf of the Petitioners

Facts of the case

According to Executive Order No. 12807 signed by President George H. W. Bush in 1992, the Coast Guard was required to force the return of all passengers discovered illegally traveling by sea from Haiti to the United States before reaching its borders without determining whether they qualify as refugees. The Haitian Centers Council, Inc., a collection of organizations representing illegal Haitian aliens and Haitians detained at Guantanamo, requested that the District Court for the Eastern District of New York delay the implementation of the order. The council argued that the order violated section 243(h) of the Immigration and Nationality Act of 1952 and Article 33 of the United Nations Protocol Relating to the Status of Refugees which protect individuals escaping potential prosecution from forced repatriation. The District Court denied the council’s request, but the Court of Appeals for the Second Circuit reversed.


Is Executive Order No. 12807 a violation of section 243(h) or Article 33?

William H. Rehnquist:

We’ll hear argument first this morning in Number 92-344, Chris Sale, Acting Commissioner, and the Immigration and Naturalization Service v. The Haitian Centers Council, Inc.–

Ms. Mahoney.

Maureen E. Mahoney:

Mr. Chief Justice and may it please the Court:

This case concerns the scope of the President’s emergency powers to adopt measures that he deems to be necessary to prevent a mass migration of aliens across the high seas and to the ability of the alien migrants to challenge those measures in United States courts.

Last May, in the first 20 days, more than 10,000 Haitians crowded into unseaworthy vessels and set sail for our shores.

The President determined that he could not stop this migration while continuing to offer the migrants any kind of asylum screening on board Coast Guard cutters or at off-shore locations such as Guantanamo.

He accordingly concluded that a change in the procedures was required in order to stop the migration and to save lives that he concluded would be lost if that number of people continued to flow out of Haiti in the vessels which are clearly unseaworthy.

He accordingly invoked his powers under the Immigration & Nationality Act, which are in the nature of emergency powers, to adopt the procedure that he thought were necessary, and those procedures provided that the Coast Guard should directly repatriate Haitians without asylum screening but that persons who genuinely feared persecution should be given an opportunity to seek admission as a refugee through asylum processing at the embassy.

William H. Rehnquist:

Ms. Mahoney, was this directive aimed at any Haitians who were leaving Haiti, or just Haitians who were leaving Haiti for the United States?

Maureen E. Mahoney:

It’s directed at Haitians who were leaving for the United States.

The executive order directs the Coast Guard to determine whether they have reason to believe that undocumented aliens are seeking entry into United States territorial waters, and the Coast Guard has enforced it in that way.

Once the procedures were changed, the exodus that had begun a number of months before was halted.

They were effective.

The problem that we face now is that the threat of the out-migration continues because the underlying conditions in Haiti that have caused people to wish to leave their country… a variety of political and economic conditions… continue to persist.

The President has accordingly determined that in order to prevent mass migration, just as last May, and also to prevent loss of life at sea, perhaps hundreds or thousands, the policy of direct repatriation must continue, but the President has also directed that efforts be made to fully fund the asylum processing in Haiti so that those who wish to come to the United States because they genuinely fear persecution will have an opportunity to adjudicate those claims expeditiously in Haiti and flee Haiti through those orderly procedures.

David H. Souter:

Ms. Mahoney, you don’t claim that section 1253(h) is unconstitutional, I take it?

Maureen E. Mahoney:

No, Your Honor, we’re not claiming that it’s unconstitutional.

David H. Souter:

Has any effort been made to amend the statute?

Maureen E. Mahoney:

Since this occurred?

David H. Souter:


Maureen E. Mahoney:

Not that I know of.

I don’t believe that… a bill might have been introduced, I really can’t say, but nothing has certainly gotten very far.

The Coast Guard is accordingly still under orders from the President to interdict Haitians and to repatriate them without conducting asylum screening.

The court of appeals, nevertheless, told… directed the commandant of the Coast Guard to disregard the procedures that had been established by the President and to resort to the procedures that had been suspended by the President last year in the national interest.

We respectfully ask this Court to reverse the order of the court of appeals and to permit the 20 military vessels that are currently stationed off the coast of Haiti to operate under the direction of the Coast Guard and the President and not the Federal courts.

William H. Rehnquist:

Ms. Mahoney, after the court of appeal’s ruling last spring, was an injunction actually entered by the district court?

Maureen E. Mahoney:

Yes, it was, Your Honor, but this Court stayed it.

William H. Rehnquist:

And was… did the injunction… was it directed against the Commandant of the Coast Guard and the Commandant of the naval base at Guantanamo Bay, too?

Maureen E. Mahoney:

Yes, I believe that it was directed against all of the defendants, and definitely against the Commandant of the Coast Guard.

William H. Rehnquist:

What did it command them to do?

Maureen E. Mahoney:

It commanded them not to return any interdicted Haitian who would be threatened with persecution in Haiti, and necessarily, in order to comply with that order, Your Honor, we would have to conduct some sort of asylum screening so that we could be in compliance with the injunction, otherwise we wouldn’t know whether we were returning someone who might fear persecution.

Anthony M. Kennedy:

Is the asylum screening, Ms. Mahoney, that’s taking place in Haiti pursuant to the Government’s obligations under section 1253?

Maureen E. Mahoney:

No, it is not, Your Honor.

The Government does not have obligations under 1253(h) outside of the territory of the United States.

Anthony M. Kennedy:

So this is just a gratuitous effort on the part of the Government.

Maureen E. Mahoney:

Well, it is a humanitarian effort on the part of the Government to provide an orderly way for persons with genuine fears of persecution in Haiti to seek asylum and come to the United States.

The situation that we had before, when we were conducting screening on Coast Guard cutters and at Guantanamo, was causing thousands and thousands of people to essentially risk their lives so that they could get the opportunity to apply for asylum outside of their own country and the chance to come to the United States, even though the vast majority of those people will not ultimately be found to be eligible for asylum.

This unnecessarily creates the risk of loss of life at sea, and it interferes with our foreign policy initiatives, which very fundamentally depend upon bringing order and stability into that country.

Anthony M. Kennedy:

If a person in Haiti is found eligible for asylum, what steps are taken to allow him to enter the United States?

Maureen E. Mahoney:

They are transported to the United States, and hundreds of people have in fact been brought to the United States pursuant to that procedure, which again is being expanded by the President, and emergency refugee funding was just devoted to that.

We are not under an obligation to provide that process, but it is part of the procedures that the President had determined constitute an appropriate response to the emergency situation in Haiti.

In this way, the asylum claims can be made in an orderly way.

They can be adjudicated more effectively because persons at the embassy and asylum employees who are adjudicating the claims can look into the allegations.

Trying to conduct asylum interviews on Coast Guard cutters at Guantanamo did not produce results that really very accurately reflect the true nature of the claims.

Anthony M. Kennedy:

What is the authority of the United States to conduct such extrastatutory… take such extrastatutory steps?

Maureen E. Mahoney:

Oh, those are not extrastatutory.

That is a procedure that Congress adopted in section 1157.

It’s a procedure for refugee admissions for aliens who are outside the United States.

In fact–

Anthony M. Kennedy:

All right.

Maureen E. Mahoney:

–The system that Congress set up really reflects the differences in the obli… in the benefits that are to be afforded to aliens outside the United States and aliens who have reached our shores.

Congress provided that you could apply for asylum in the United States and it could be granted in the discretion of the Attorney General if you’ve reached our borders.

Outside the United States, you could only apply for asylum if the President determined in consultation with the Congress that a nation represented a particular… an area of humanitarian concern.

And Haiti is one of the very few nations in the world where we have actually established in-country asylum-processing centers… I believe there are only five or six… and this was done, again, to try to facilitate the adjudication of those claims and to stop this exodus which is threatening our foreign policy interests and humanitarian interests as well.

I’d like to emphasize that we do not–

Antonin Scalia:

None of this has anything to do with the legal issue in front of us, though, I believe.

The position you’ve taken is that you have no obligation to permit aliens to come to the United States in order that they may apply for asylum here.

Maureen E. Mahoney:

–That is correct, Your Honor.


Antonin Scalia:

So maybe we can talk about that legal issue.

Maureen E. Mahoney:

–The… the point here, Your Honor, is that the power that the President has under 1182(f) and 1185(a)(1) is to adopt procedures… these are in the nature of emergency powers, and they are to adopt procedures in response to crises abroad or international situations which he thinks to be appropriate in the national interest, and it is these combination of procedures, direct return plus the availability of the 207 screening, that makes for both a humanitarian policy and one that is certainly well within his legal authority.

The scope of the powers that were conferred by Congress were addressed by this Court in Knauff v. Shaughnessy in 1950 before the ’52 amendments to the INA, and there the Court emphasized that these powers were very broad, were in the nature of emergency powers, and in fact so broad that the President could in fact suspend exclusion hearings when he deemed it to be appropriate, even for aliens who had reached our borders.

In that case, the bride… alien bride of an American soldier was not allowed entry and was not given a hearing because the President had delegated unreviewable discretion to the Attorney General to deny such procedures when he thought it appropriate in the national interest.

Antonin Scalia:

Ms. Mahoney, who directs the Coast Guard under the current policy?

Maureen E. Mahoney:

The Department of Transportation, the Commandant of the Coast Guard.

The Attorney General has not issued any directives to the Coast Guard, Your Honor.

Antonin Scalia:

Does the Attorney General ordinarily have jurisdiction over the conduct of the United States on the high seas?

Maureen E. Mahoney:

No, Your Honor, the Attorney General does not.

Under 8 U.S.C. section 1357 his responsibilities are to enforce the immigration laws within the borders of the United States and within the territorial waters, so this further underscores that if Congress intended to limit the scope of the President’s emergency powers under 1182(f) and 1185(a)(1), surely they would not have simply written 1253(h) as a direction to the Attorney General and included it in parts 4 and 5, which deal with exclusion and deportation proceedings.

These are–

David H. Souter:

Ms. Mahoney, may I just interrupt you on one point before you get too far from it?

Isn’t there a law to the effect that the Coast Guard is deemed legally to be executing the policies of whatever department it may be responsive to so that if the Coast Guard is implementing a policy which is set by the Attorney General it would be treated as the Attorney General for statutory purposes?

Maureen E. Mahoney:

–Your Honor, you’re referring, I believe, to 14 U.S.C. section 89, and it does provide that when the Coast Guard is acting under the… basically as the agent of a particular department, that it will use its procedures, but here it is clear that the Coast Guard is acting at the direction of the President under the President’s powers under 1182(f) and 1185(a)(1), and that is a very different source of power than that which is conferred on the Attorney General to enforce our immigration laws within the boundaries of the United States.

The Attorney General is responsible for making refugee determinations in the course of exclusion and deportation proceedings, and I would note that 1253(h), the express language is directed to the Attorney General, and if the Attorney General makes a determination that a person would be subject to persecution, then they shall not be deported or returned.

That language simply has no bearing on the President’s exercise of his powers, separate powers under 1182(f).

David H. Souter:

So basically your argument is that 1253(f) is really irrelevant to the issue that we’ve got here.

Maureen E. Mahoney:

No, Your Honor, I wouldn’t say that it’s irrelevant.

I… I mean, certainly, it’s the issue that the court of appeals looked at and said it was not extraterritorial, which we agree with, but this simply shows that, given that the President was exercising authority under different sections, if Congress had intended to circumscribe those powers, it would not have written 1253(h) in the way that it did.

It clearly is addressed to the Attorney General and his exercise of powers, and this is particularly so, given that the… given the broad interpretation of 1185(a)(1) that had already been adopted in Knauff v. Shaughnessy when Congress–

John Paul Stevens:

Isn’t it true that both 1182(f) and 1185 deal with the power of the President to prevent entry into the United States, rather than to return to any particular destination?

It addresses a different problem, I think.

Maureen E. Mahoney:

–I don’t believe so, Your Honor.

I think that those powers are very broad, they’re designed to give the… the President the authority to… it says to control the travel of aliens and prevent… not prevent, excuse me, and to prohibit attempts to enter.

John Paul Stevens:

That’s right.

It talks about entry.

Maureen E. Mahoney:


John Paul Stevens:

To suspend entry.

Maureen E. Mahoney:

To… to suspend entry, but 1185(a)(1) specifically talks about prohibiting travel, and by adopting rules and regulations that he deems appropriate.

John Paul Stevens:

Well, it deals with aliens who are to depart or enter, or attempt to enter or depart.

Maureen E. Mahoney:

Attempt to enter, Your Honor.

Maureen E. Mahoney:

Essentially, the proclamation in 1981 said that the attempt to enter the territorial waters of the United States on the high seas by undocumented aliens was prohibited.

So essentially what the President is doing here is enforcing and asking the Coast Guard to enforce that limitation that was established by proclamation for the purposes of protecting the sovereignty of the United States.

John Paul Stevens:

Not, but if there were another statute that said you shall never send anybody to Cuba, for example in so many words, that wouldn’t… this statute would be… the statute on the books would still leave the President full of power to control entry and departures from the United States.

Because the statute would then place a limit on where he could return someone.

He couldn’t send them to Cuba, and that’s what they argue here.

I don’t know if they’re right or not.

Maureen E. Mahoney:

Well… well, that could be, except that in this case these facts demonstrate that that would make the powers that have been conferred on the President ineffective under these circumstances.

The President has determined that he cannot do any sort of refugee screening or take them anywhere else.

He simply cannot enforce the interdiction program if he is prohibited from taking them back to Haiti.

John Paul Stevens:


Maureen E. Mahoney:

So, in other words, the… it would be difficult to believe that Congress intended to skirt… circumscribe the President’s authority in a way that he has to permit a mass migration across the seas to our shores.

I mean we’re talking about potentially 100,000 people.

John Paul Stevens:

Well… well maybe it’s impractical and unrealistic, but at least theoretically consistently with the law, he could interdict them and send them someplace other than… than Haiti.

Maureen E. Mahoney:


John Paul Stevens:

And that would be consistent with the statutory authority to keep everybody out of the United States.

Maureen E. Mahoney:


John Paul Stevens:

Maybe he can’t do that as a practical matter.

Maureen E. Mahoney:

–But he can’t do that.

That’s the point.

He can’t enforce–

John Paul Stevens:

But if you just look at the words, it’s consistent with the various–

Maureen E. Mahoney:

–He can’t enforce the prohibition and 1253(h) is not directed to the President, it’s directed to the attorney general.

John Paul Stevens:

–The attorney general, I understand.

Maureen E. Mahoney:

I’d also like to turn to the fact that the court of appeals didn’t address the threshold issue really, of why it could assert jurisdiction in this case, what was the cause of action here?

The APA does provide a cause of action, but we submit it does not provide a cause of action for aliens outside of the United States to challenge the President’s authority in this manner.

The whole history of our immigration laws has been to deny access to aliens outside the United States to U.S. courts.

And, in fact, if we look at the provisions of the Immigration and Nationality Act, they demonstrate very clearly that the way that aliens get a right to bring challenges in U.S. courts is to have territorial presence, to be here, to be at the borders or to be in the United States.

1105(a) specifically says that orders of exclusion, and that would include, for instance, orders saying that you are not allowed to come into the country which are issued to persons outside the United States as well as persons inside the United States, can only be challenged by persons who are at the border.

Orders of deportation, of course, can be challenged by people who are… are within the United States.

Anthony M. Kennedy:


Anthony M. Kennedy:

If a treaty that said it was a self-executing treaty had a provision in which the United States undertook not to deter any person from attempting to enter the United States, would an alien then have the authority to seek the assistance of our courts to prohibit the President from violating that treaty?

Maureen E. Mahoney:

Your Honor, if self-executing were meant to create a cause of action, an actual cause of action on behalf of that alien, I suppose that’s true.

But I don’t think that… certainly there’s nothing in the text of article 33 or in the convention as a whole that indicates that it itself creates causes of action that can be brought in United States courts.

Anthony M. Kennedy:

Do we have any treaties–

Maureen E. Mahoney:

And it was–

Anthony M. Kennedy:

–Which create causes of action analogous to the one we’re discussing in this hypothetical?

Maureen E. Mahoney:

–I don’t know the answer to that, Your Honor.

I can say, though, that in Amerada Hess recently, the Court did note that even though there were rather explicit obligations to pay compensation, it did not create a cause of action that was enforceable in United States courts because it didn’t say that.

And I don’t think that there… there is any language in the… in the protocol that would suggest that there is an independent cause of action.

It would be so contrary to the whole history of our immigration laws.

I mean I would point out, for instance, that under the Immigration and National Act even persons outside the United States who claim to be citizens are not permitted to bring an action in United States courts.

That’s because Congress has determined that the only way to bring that challenge is to get a certificate from the consular office in the foreign locality that you, basically, have probable cause to present a claim of citizenship, in which case they will permit you to come to the United States to make that challenge, but you cannot do it from outside the United States.

William H. Rehnquist:

Ms. Mahoney, does… does that mean that if, say, a Haitian appears at the American consulate in Port-au-Prince and makes a case for political asylum and the consul simply misunderstands the law and says there is no case, does that person then have no remedy in the United States courts unless–

Maureen E. Mahoney:

That’s correct, Your Honor.

In fact, there’s absolutely nothing in the statute that would provide any rights of review for persons who think that they have been unfairly denied, whether it be refugee admission or any of the other preferences that are established by the immigration laws.

And in the… in one APA action that this Court decided, Brownell v. Tom We Shung, the Court found that the APA could be used for an alien child who came to the borders of the United States and claimed a right to enter under the War Brides Act, but it noted in… in the course of reaching that conclusion that, of course, aliens outside the United States who have never reached our borders couldn’t possibly maintain a claim under the APA.

But even the result that this Court reached in Brownell was overruled by Congress.

And the legislative history indicated it was a fallacious doctrine to suggest that aliens outside the United States could come into U.S. courts under the APA.

Antonin Scalia:

–Why wouldn’t they have a claim under the APA?

Is the APA also territorial only?

Maureen E. Mahoney:

No, Your Honor, I don’t believe that the APA is territorial only, but the INA precludes review.

It’s very much like… the provisions of the INA show that preclusion is intended.

It’s very much like Block v. Community Nutrition where there is a class of… of applicants or claimants, and here it’s aliens outside the United States, those who have no connection to our country or our territory, who are not given any rights… any rights of access to the courts.

And to construe the APA to nevertheless provide them access with the courts when it historically has never been done, seems to me to be a grave departure from our law, particularly in the circumstances of this case where it’s aliens outside the United States who are threatening to migrate en masse and, in fact, were migrating en masse, and they wish to come into the courts of the United States to challenge the action of the President in responding to that.

It seems to me that even if the Court were to think that an APA action might be appropriate, equitable relief under these circumstances certainly is not.

The President has determined that the national interest here is to pursue the procedures which he has established, and to suggest that the persons who wish to avoid the 207 processing in Haiti so that they can seek more beneficial asylum procedures or what they might view to be more beneficial asylum procedures in the United States, does not strike us as equitable relief.

As this Court noted in Webster v. Doe, the Court, when exercising powers under the APA, must determine whether the relief requested is appropriate equitable relief, and continues to have authority to dismiss relief, whether declaratory or injunctive, that does not represent an appropriate exercise of judicial power.

This is certainly such a case, where the President has determined that to adopt the procedures that the court of appeals has required will result in mass migration and the loss of hundreds and possibly thousands of lives at sea.

This is just not a sensible way to construe our laws, and certainly not one that we think Congress intended.

David H. Souter:

Does 1253(h) rest on the assumption that the… the powers over the very subject matter that you are describing, or the executive power over the very subject matter that you are describing will be exercised only by the attorney general, and is that why 1253(h) is addressed only to the attorney general?

Maureen E. Mahoney:

No, Your Honor, I think that 1253(h) is addressed only to the attorney general because it is only addressed to the removal of aliens within our territory and that is done only by the attorney general.

In fact, if we look at the language of 1253(h), I mean not only is it contained in two chapters that pertain just to exclusion and deportation procedures–

David H. Souter:

Well, may I… just because time is short–

Maureen E. Mahoney:


David H. Souter:

–May I interrupt you with another question.

If, in fact, we were to construe 1253(h) differently from the way you want us to do, and if we were to conclude that, in fact, 1253(h) does not have the territorial limitation for which you argue, then would it follow that the statute was… was enacted on the assumption that the authority over the subject matter… that the executive power over the subject matter would be exercised only through the attorney general?

Maureen E. Mahoney:

If I understand your question, Your Honor, you’re saying that we should conclude that the President’s authority was circumscribed or that he did not have authority to do this.

David H. Souter:

That… that it was circumscribed and it’s a circumscription which, at least as a Constitutional matter, is not presently before us.

Maureen E. Mahoney:

No, Your Honor, I don’t think we could construe it to circumscribe the President’s authority in that… in that light, especially since in Knauff v. Shaughnessy itself, the President suspended exclusion hearings which were required by statute for an alien bride who was entitled to admission so that she could be with her husband, if she was otherwise admissable.

So to say that… that the… the President’s powers could suspend those kinds of procedures in Knauff but nevertheless not permit the President to adopt procedures that are necessary to protect our sovereignty and to protect against a humanitarian tragedy at sea seems to me to be an inappropriate way to construe Congressional intent.

Particularly when we’re dealing with areas of foreign affairs powers where, as this Court noted in Curtis Wright, Congress is expected to grant extremely broad authority so that the President will be able to act in the national interest without the kinds of limitations that you might have in the domestic setting.

I’d further underscore that if we were to look to the… the protocol to which certainly this Court has… has reference to inform the interpretation of 1253(h), one of the key concerns of the negotiators was that they have the ability and the flexibility to prevent mass migrations.

Because no country can readily give up that kind of sovereign power so that it subjects itself essentially to an invasion of foreigners.

David H. Souter:

Was… was that concern expressed by others than the Dutch and the Swiss?

Maureen E. Mahoney:

Well, it… it was responded to by the President, I believe in July… in the July 11th negotiating session as well, saying that there was no great… he was responding to concerns that it might be applied extraterritorially and pointed out that the second paragraph specifically refers to where the alien is and that that was a territorial limitation.

And, in fact, if article 33 is looked at in context, it’s in a chapter called Administrative Remedies.

And article 32 refers to persons within the territory who are entitled to some limited protections from removal and… excuse me, 32 is expulsion, those who were lawfully admitted.

31 is people who are entitled to a lesser level of protection, and 33 is readily read to simply describe the procedures that can be used to remove those people from the territory and not creating some sort of freestanding obligation to undertake obligations outside the territory, particularly in light of the fact that this would create a mandatory duty of asylum which this Court in Cardoza-Fonseca and in Stevic recognized no one agreed to.

I’d like to save the remainder of my time for rebuttal.

Harry A. Blackmun:

Well, before you sit down, a couple of irrelevant questions.

Have you ever been in Haiti?

Maureen E. Mahoney:

No, Your Honor, I have not.

Harry A. Blackmun:

Are you familiar with a book called The Comedians by Graham Greene?

Maureen E. Mahoney:

No, Your Honor, I’m sorry, I’m not.

Harry A. Blackmun:

I recommend it to you.

Maureen E. Mahoney:

Thank you.

William H. Rehnquist:

Thank you, Ms. Mahoney.

Mr. Koh, we’ll hear now from you.

Harold Hongju Koh:

Mr. Chief Justice, and may it please the Court.

You’ve heard the Government’s case.

Harold Hongju Koh:

But, unfortunately, that case differs from the one that’s before you in four crucial respects.

First, the right we claim is not a right of entry.

It’s simply the right not to be returned to Haiti, a country where our clients face political persecution.

These interdictions are going on over 700 miles away from the United States.

They are going on right outside Haiti.

People are fleeing from Haiti to anywhere they can get to.

There are some 700 islands, if you refer to a map, between here and Haiti.

People coming from Port-au-Prince could go to the Bahamas.

They could go the Caymans.

They can go to Mexico, Cuba, the Virgin Islands, Honduras, Turks and Caicos, the Dominican Republic, but they cannot because we’ve erected a floating Berlin Wall around Haiti which keeps people in.

Secondly, our claim is–

William H. Rehnquist:

Mr. Koh, uh, uh, Ms. Mahoney says that the order is directed just at Haitians who are leaving Haiti for the United States.

Harold Hongju Koh:

–Your Honor, they are not interdicting people and asking them: Are you going to the United States?

They are interdicting everyone, without regard and without asking them where they’re going.

And that’s precisely the problem.

William H. Rehnquist:

Well, then, are… are they… are they out of compliance with the President’s order?

Harold Hongju Koh:

Your Honor, if someone was coming from 700 miles away and past many countries, it would be quite a while before we were sure what their ultimate destination was.

And there’s no way that we can establish exactly where they are going.

Our own clients… uh… in another part of the case who are being held at Guantanamo, all intended to go elsewhere.

Nevertheless, the interdiction order is not designed to keep Haitians out of the United States.

If that were the case, the interdiction could be set up 13 miles outside the United States.

Instead, it’s set up 13 miles outside of Haiti.

William H. Rehnquist:

Well, if you set up an interdiction order 13 miles outside the United States you turn people back for what may be a very perilous hundreds of miles of… of journey.

Harold Hongju Koh:

I understand that, Your Honor, but if you refer to the Government’s brief, on page three, they point out that under the old interdiction program, the one that operated under President Reagan and President Bush for more than 10 years, where there was minimal screening applied, that that program was very effective, and that it saved thousands of lives.

They have not explained why a program which now dispenses with the screening and returns people directly to their persecutors is somehow safer.

This is not rescue.

This is aiding and abetting their persecutors by delivering refugees directly into the hands of those people that they are fleeing from.

Now, the Defendant in this case is not the President.

We have not sued him and he is not here.

And we do not challenge his constitutional authority to direct foreign and military policy.

Harold Hongju Koh:

The President has issued no national emergency order.

He has not issued a new proclamation.

Indeed, that’s a core… uh… point of their case.

William H. Rehnquist:

You… you have joined the commandant of the Coast Guard and the Commandant of Guantanamo?

Harold Hongju Koh:

That’s right, Your Honor.

Miss Mahoney conducted her entire argument without reference to the order which is at issue here.

And if you refer to pages 378 to 379 of the joint appendix, what you will see is that the President has not ordered that people be returned to Haiti.

Indeed, on the joint appendix, at 327, and I will read it to you, the press release that was issued on the day the Kennebunkport order issued:

“President Bush has issued an executive order which will permit the Coast Guard to begin returning Haitians to Haiti. “

And if you look at the order itself, he says that the secretary… the Department of Transportation shall issue appropriate instructions… he does not say what makes them appropriate.

And then in 2(c)(3)… I’m sorry… 2… uh… (c)(3) “to return the vessel”… in other words, there is no despot… dispute that what he’s… uh… suggesting are instructions about return…

“when there is reason to believe that an offense is being committed against the U.S. immigration laws. “

In other words, the Coast Guard here is supposed to be enforcing the immigration laws, and as Justice Souter pointed out, that brings them firmly under 14 U.S.C. 89(b).

And then,

“provided, however, that the attorney general, in his unreviewable discretion, may decide that a person who is a refuge will not be returned without his consent. “

That is the target of 243(h).

The attorney general does not have unreviewable discretion to decide whether someone who is a refugee may be returned.

That discretion was removed from him by 1253(h), which says in unambiguous terms,

“The attorney general shall not return any alien– “

John Paul Stevens:

Yes, but, Mr. Koh, that’s the issue.

I mean, if… if the statute doesn’t apply outside the United States, then he does have unreviewable discretion.

And that’s what we have to decide.

Harold Hongju Koh:

–Well, Your Honor, the point that we have made in our brief is that you must look to the broader purposes of this statute.

If what the Government says is–

John Paul Stevens:

Yes, I understand.

But do… would you not agree that if 243(h)… and neither the statute nor the treaty applies outside the United States, then there’s nothing wrong with giving him unreviewable discretion?

Harold Hongju Koh:

–Well, that’s a further point of our contention.

The Government suggests that what we are arguing here is somehow that 243(h) applies worldwide, and to any chance encounter between Haitians and the attorney general.

That is not what we’re contesting.

What we are contesting is that in the unprecedent–

John Paul Stevens:

It… it’d really help me if I… I understood what your answer to my question was.

Harold Hongju Koh:

–Your Honor, what we’re saying is that the question here is when the attorney general takes the immigration laws out onto the high–

John Paul Stevens:

Let me just state my question, so you understand it clearly.

If you agree, which I know you don’t, that neither the treaty nor the statute applies outside the territory of the United States, then would you not also agree that the attorney general has unreviewable discretion to return someone who is apprehended outside the United States?

Harold Hongju Koh:

–If the issue were posed that way, yes, I would agree, Your Honor.

But the question is not that.

The question is: When the attorney general takes the immigration laws out onto the high seas, as he has done here, then do the restraints of the statute travel with him?

Now, as the Government points out, the authority that they claim is from 212(f) and 215(a).

Those provisions also, by the way, are not extraterritorial.

There is nothing that gives them an extraterritorial scope.

What takes them extrator… territorially is that the attorney general has taken them out onto the high seas.

But they want the power without the restraint that goes along with it.

And our point is simply that when U.S. officials, themselves, choose to exercise their authorities, their immigration authorities, on the high seas, they must follow the statute that they invoke as the basis of their authority.

They can’t have it both ways.

They can’t have the power without the constraint.

And understand, Your Honors, that the motive, the humanitarian motive that is raised repeatedly in the Government’s position, is irrelevant.

Because if, as Justice Stevens has pointed out… uh… the attorney general’s discretion were unreviewable, then the attorney general could simply shoot everyone on the high seas.

His motive would be irrelevant.

If this were in fact the case in the current day, the attorney general could send the Coast Guard out to apprehend fleeing Nazis and deliberately return them to their pre… persecutors.

If Chinese students were outside the United States or Salman Rushdie was outside the United States, they could be returned to China and Iran, respectively, for the worst of motives, because there would be no law governing their conduct.

And, indeed, Your Honor, if President Aristide himself were coming from Haiti, someone who undeniably has a fear of political persecution, he would be returned, no questions asked, directly into the hands of his persecutors.

This has a broader worldwide implication.

If this interpretation is true, the Germans, facing a flow of refugees from Bosnia, could take to the high seas, apprehend Bosnians, and deliberately return them to Serbian death camps, because they are under no constraint of law.

Antonin Scalia:

Since it is good for it to be that way, it must be that way.

Is… is that your argument?

I mean, well, it seems that we have a statute in front of us, in the text in front of us, one can create horribles… all sorts of horribles, but simply to acknowledge it is a horrible is not necessarily to acknowledge that there is a law against it, is it?

Harold Hongju Koh:

Justice Scalia, there is a law against it.

It says that the attorney general–

Antonin Scalia:

Well, let’s talk about the law.

Uh… in… in… in… in Stevic, we discussed the prior version of 1253, which we said complied with article 33 and the protocol… substantially conformed with it.

Antonin Scalia:

And we said that the later amendment made some changes, but not substantial ones.

And that prior version, which we said complied with… uh… the protocol, that prior version read very explicitly the attorney general was authorized to withhold, disporz… disportation… uh… deportation of any alien within the United States to any country in which, in his opinion, the alien would be subject to persecution.

Harold Hongju Koh:


Antonin Scalia:

That one contained explicitly a territorial limitation.

And in Stevic we thought that complied with article 33 and with the protocol.

Harold Hongju Koh:

–Justice Scalia, I would… uh… differ with your interpretation of the case.

The holdings in the earlier determinations or the earlier determinations or the earlier cases of this Court regarding 243(h) did not address the question of… uh… the Refugee Act of 1980 and what it did to the previous version of the statute.

In… there were three important changes made.

May… or in the discretionary power in the attorney general was made mandatory… the word “return” was added, and the words, “within the United States” were dropped.

In other words, it’s now made, “shall not return any alien”, where before it was, “may return an alien”.

Now, what’s Stevic held, and this was also the burden of… of the long footnote in Justice Stevens’ opinion in Cardoza-Fonseca is that the… uh… conformance of the United States to article 33 compelled the discretion of the attorney general under the old 243(h) and all that the Refuge Act did in 1980 was to make it mandatory.

What is… is going on here is that lower executive officials, operating pursuant to discretion, supposedly given by an executive order, have rewritten the statute back to the way it was.

Instead of saying “may”, it now says… instead of saying “shall”, it now says “may”.

Instead of saying “any aliens”, they would read it to say

“any aliens within the United States. “

And instead of saying “deport or return”, they would eliminate the word “return”.

Antonin Scalia:

Well, here’s what we said in Stevic.

We said there were of course differences between the protocol and the text of domestic law.

The most significant difference was that article 33 gave the ref… refugee an entitlement to avoid deportation to a country in which his life or freedom would be threatened, whereas domestic law merely provided the attorney general with discretion.

The attorney general, however, could naturally accommodate the protocol… and so… and it mentions a few other… uh… differences.

You would think–

Harold Hongju Koh:


Antonin Scalia:

–That if one of the differences was no extraterritorial application, that would have been… would have been a prominent one that… that we would have mentioned.

Harold Hongju Koh:

–But, Your Honor, if you read on, what you will see is that it was suggested that the attorney general honored the dictates of article 33, and thereby exercised his discretion in conformity with it.

Antonin Scalia:

Yes, but we mention nothing about extraterritoriality.

Harold Hongju Koh:

Your Honor, that’s because no extraterritorial interceptions and returns were going on at the time.

Antonin Scalia:

But… but that language leaps out at you, “within the United States”, in the earlier version.

Harold Hongju Koh:

Your Honor–

Antonin Scalia:

And if we had thought that that was a difference from the protocol and from article 33, we would certainly have noticed it.

Harold Hongju Koh:

–Your Honor, we cite here simply plain language.

Harold Hongju Koh:

It used to say

“any alien within the United States. “

and that’s precisely the language that they removed.

And Cardoza-Fonseca says that nothing is clear, that language that was removed should be not be sub silentio added into another provision.

Antonin Scalia:

Well, but we acknowledge that even with that language, before it was removed, it was in conformity with article 33 and the protocol.

And we also say in the opinion that the changes were not meant to make any substantial changes, but were to conform the law with what the practice had been.

Harold Hongju Koh:

But that illustrates, Justice Scalia, is the point that was raised by Justice Kennedy.

Article 33 is self-executing, so that the attorney general could not exercise his discretion, under the statute, to deport people from within the United States back to their persecutors.

What happened was that the discretion was being exercised in conformity with article 33.

The revision in 1980 brought the two into line explicitly by using the same language, “shall not return any aliens”.

And the only way that this can be avoided is to read those words out to read “within the United States” back in.

Sandra Day O’Connor:

Mr. Koh, what did the 11th Circuit think the statute meant, and determine that it meant, in the case that was brought there in the 11th Circuit?

Harold Hongju Koh:

Your Honor, the 11th Circuit accepted in dictum the assertion which is now being made by the Government.

Which is that the removal of the words “within the United States” was meant to encompass deportables, as well as excludables.

Sandra Day O’Connor:

Now, are you going to address any question of collateral estoppel in your comments today?

Harold Hongju Koh:

Yes, I will.

As we pointed out in our brief, collateral estoppel requires the same parties, the same issue, in an issue that was actually litigated and necessarily determined.

Our people were not there.

That’s as simple as that.

They were different parties.

These are screened in Haitians who have credible fears of persecution.

And they were not adequately represented by–

Sandra Day O’Connor:

Well, if you read the court’s description of the class, it certainly is broad enough to include the people that you have… uh… that you’re representing today.

Harold Hongju Koh:

–We would challenge that, Your Honor, as the 2nd Circuit pointed out below.

The class definition was people who have been detained or will be detained on cutters and Guantanamo.

We concede that that was part of it.

But the second provision was, who are interdicted pursuant to the… the U.S. interdiction program.

At the time there was a lawful program of interdiction and screening.

Now, there is an illegal program of interdiction without screening.

Those are different programs.

Harold Hongju Koh:

Third, the claim was that were challenging… that the class includes people who were challenging a violation of their procedural rights.

Those people who were screened in and found to have credible fears of persecution claimed no challenge or no violation of their procedural rights, because they had benefitted by those procedures.

So we were not encompassed in the class.

Even assuming arguendo that we were encompassed in the class, we were not adequately represented by the people who were there.

They were all screened out.

And they were neither adequate nor typical of our class.

And, for that reason, different parties were there.

Your Honor, this is similar to… uh… the opinion in the Falcon case, General Telephone v. Falcon, where a conclusion was made that an employee could not adequately represent the class that consisted of both employees or applicants for employment, because they are different groups.

Or, to give another example, Martin v. Wilkes, whether the white fire fighters are precluded by the black fire fighters.

Again, here, they are both Haitians, but one group is a group without credible fears of persecution, who are therefore economic migrants, and our class are those who have the most fear of all.

And that’s precisely the point.

This is not a polite, bloodless process which is going on.

Our clients, our named Plaintiff, Mr. Bertrand and Mr. Remy, who my own co-counsel counseled, these people were interdicted on the high seas.

Their boats were destroyed by the Coast Guard.

They were taken to Guantanamo, where they were held behind barbed wire in U.S. captivity for months.

And then, when they asked for lawyers, before they had an asylum hearing, they were forced back onto the boats and returned to Haiti.

I am… uh… I will point you out the trial affidavits, on pages 51 to 65 of our joint appendix, at Port-au-Prince, Mr. Bertrand was driven off the boat with fire hoses.

He was fingerprinted, identified by the Haitian military.

That night he was… uh… taken from his bed, beaten, his left arm was fractured, and he fled into hiding.

And he would now flee again, but for this program.

He has a credible fear of persecution.

He would be screened in, but for this policy, which does not recognize a legitimate distinction between political refugees and economic migrants.

Now, the point–

William H. Rehnquist:

Mr. Koh, do you agree with Ms. Mahoney that if a Haitian makes an application for political at the consultant in Port-au-Prince, and the consul does not follow applicable law in processing it, that Haitian, nonetheless, does not have a remedy in the United States courts.

Harold Hongju Koh:

–Yes, we do, and this comes back to the point that I was making with Justice Stevens.

We are not talking about whether 243(h) applies to any random encounter between an alien and a U.S. official outside the United States.

What we are talking about is a case where the United States, in an unprecedent move, intentionally goes out on the high seas, takes people into their custody.

It is the act of taking them into their custody outside the United States that brings them within the control of the attorney general, and it is that act which then, authorizing them to be returned, makes the Coast Guard an agent of the attorney general for the returned.

Now, Justice O’Connor raised the question, could they have been referring, when they withdrew the words “within the United States”, to excludables as well as deportables.

The short answer to that, Your Honor, is had they intended merely to reach deportables and excludables, they could have said shall not return any alien physically present in the United States.

Harold Hongju Koh:

If you examine the Government’s reply brief, you will see that on page 14 the Government concedes this point.

It says,

“The essential characteristic shared by those in exclusion and deportation proceedings are both are physically present in the United States. “

In other words, there was no need for Congress to delete the words “within the United States” altogether.

And there is no valid claim that what was actually going on here is that they… the pen slipped, because at the same time that they deleted the words “within the United States”, they added the words

“physically present within the United States. “

into 208.

That was part of the procedure that was going on at the same time.

In short, what happened in 1980 was that Congress was creating three statutory classes of aliens.

First, aliens within the United States, those lawfully admitted, who are subject to deportation proceedings.

Secondly, those physically present in the United States who are either deportable or excludable.

And third, any aliens, those… wherever they are taken a hold of.

And that’s precisely the point.

Someone becomes a refugee not when they make it to the United States, they become a refugee when they flee the… when they clear their own borders.

Then they have escaped their persecutor.

And the question is not whether we need to let them in, the question is why do we at that point take them back to their persecutor.

There are many other things we could do.

We can interdict and screen them, as was done for 10 years.

We could let them go to third country sites.

We could just let them sail on to the Bahamas and Caimans.

Antonin Scalia:

Mr. Koh, could I ask you another question about the prior suit.

If… if, as you say, the… the prior suit involved only screened-out Haitians, would not the screened-out class, at least, be bound by that prior litigation?

Harold Hongju Koh:

That’s right, Your Honor, and we represent no screened-outs here.

Antonin Scalia:

And pardon me?

Harold Hongju Koh:

We represent no screened-outs here.

Antonin Scalia:


So… so whatever decree would come out of this litigation would not… would not apply to that group.

Harold Hongju Koh:

It would affect those people who have been screened in or who will be screened in.

And I should point out that the Government’s–

Antonin Scalia:

How can this injunction apply to only… you know, only that class and not the other class.

Antonin Scalia:

I don’t quite see how it would work.

Harold Hongju Koh:

–All that we’re… the Government has no… they claim to have a problem with the injunction.

What they have a problem with is the statute.

The statute says you shall not return any alien without screening.

If… the point of our clients, the 150 who were screened in and then returned, is they would flee again were screening reinstituted.

To reinstitute screening, as was done for 10 years under President Reagan and President Bush, would not create a massive inflow.

Last year, over a 9 month period with no serious attempt to restore the democratic government of Haiti, in uncontrolled migration 37,000 people came of whom only something like 10,000 were screened in.

And if you examine the amicus brief of the American Jewish Committee, you will see that 900,000 Cubans have been admitted, that 200,000 Eastern Europeans, that nations many times smaller than ours have shown much more generosity.

And we’re not asking that they be admitted.

All we’re asking is that they be given some form of temporary safe haven outside of Haiti, the country that they’re fleeing from.

Our amicus briefs by Amnesty International and Americas Watch and the two court rule applying to the district court findings of fact and the Second Circuit’s affirmance of that, demonstrate that there’s heightened political repression currently occurring in Haiti, and also evidence that specific plaintiffs who have been returned have been abused, were tortured, and are in hiding for fear of their lives.

So why return these people directly into the hands of their persecutors?

This is tantamount to being accomplices to their persecution.

And in the same way as the rules against torture and genocide were set up to be universal proscriptions, we cannot see any reason why a country would have no power to send someone back to their persecutors in their own territory where they’re most powerful, but then somehow have such power on the high seas where they have no sovereignty.

And this also disproves the point about the presumption against extraterritoriality.

This is an international statute.

It controls refugee flows in and out of the United States.

It effectuates a treaty, an international treaty.

It effectuates an international human rights norm.

And most conclusively, our officials have themselves taken these laws extraterritorially, and now that… they argue that this presumption against extraterritoriality should somehow apply to rewrite the statute to add words that were taken out previously.

Now, Ms. Mahoney has suggested that what is not required is asylum screening, but the kind of screening that went on before was preasylum screening.

And you can examine the joint appendix at 378; what was asked was whether they had a credible fear of persecution.

If you lack such a fear, you could be returned.

This was a… a nononerous procedural burden.

And the fact that the new policy is effective and has terrified people so that they will not flee is not a reason why it’s legal.

I’m sure that shooting them would also… or drowning them would also dissuade people from coming, but that is our shame, that is not the reason why it’s a legal policy.

This also rebuts their point about reviewability, for if it is true that the only way that an alien outside the United States can get review of a generally applicable Government policy is through habeas or exclusion then, again, the attorney general could simply order that all Haitians coming on the high seas be shot and that would be unreviewable.

The Japan whaling case and Cardoza-Fonseca both… both made it absolutely clear that what’s going on here is immigration.

It’s a construction of an immigration statute.

Of course it touches on foreign policy, immigration cases always do, but the Court can construe the statutes in a manner which is consistent with the plain language of the statute, the plain language of the treaty which here is also “return”.

Harold Hongju Koh:

Return is return is refolai is return.

In other words, you don’t take people back, and there should be no doubt as to what’s going on here because the executive order that’s being invoked says, “you shall not”… that is what is being done is “return”.

So even if there is some confusion as to what “return” means, that is what the executive order authorizes.

The Government repeatedly cites the Knauff case, but the Knauff case had to do with a claim of inherent executive power over immigration.

What is going on here is a power which is purportedly being executed pursuant to statute.

And I would note Justice Jackson’s powerful dissent in that case, where he said security, like liberty, is dangerous, for many other crimes that are committed in its name.

This is essentially what’s going on here, Your Honor.

In short, the plain meaning of the statute, the mutually reinforcing plain meaning of the statute and the treaty make it clear that lower executive officials shall not return any aliens to conditions of persecution without regard to their physical location.

Once they have cleared their own frontiers, they become subject to the statute.

Once they come under the attorney general’s control, he can do many things with them, and we do not tell him what he must do with them, we only tell him that he cannot return them.

Ironically, the only option that is forbidden is the one that has been chosen here.

Anthony M. Kennedy:

Do you take the position that it’s irrelevant whether the treaty is self executing or not self executing, because it’s been executed through the statute?

Harold Hongju Koh:

We believe that that only reinforces our result.

It… by the way, if the treaty is self executing, as we assert, it eliminates any claim that the Coast Guard or the President are not bound by the treaty.

And we believe it’s absolutely clear, and we–

Anthony M. Kennedy:

But it’s… you’re… you’re… it’s not fatal to your case to find that the treaty is not self executing because of the statute, I take it.

Harold Hongju Koh:

–Because of the statute, which expressly embodies the treaty.

So we win either way, and we direct you to the attention… your attention to the amicus brief of the Lawyers Committee which examines the self executing question.

Your Honor, in closing, ours is a Nation of refugees.

Most of our ancestors came here by boat.

If they could do this to the Haitians, they could do this to any of us.

Because the Second Circuit correctly ruled that blanket summary return violates the plain language of the statute and the treaty, its judgment should be affirmed.

Thank you.

William H. Rehnquist:

Thank you, Mr. Koh.

Ms. Mahoney, you have 2 minutes remaining.

Maureen E. Mahoney:

There’s a basic principle in our law that is reflected in Johnson v. Eisentrager, it’s reflected in the INA, it’s reflected in the construction of 243(h) that governed here for 30 years, that ordinarily an alien’s right to protection from a country only arises when they arrive in the territory of the United States.

It is not at all unusual that aliens outside the United States should not have rights under U.S. law or access to its courts.

I’d like to emphasize that the removal of the language v. Barber, that that language meant it could not apply in exclusion proceedings.

David H. Souter:

Then… then why didn’t it say so?

I mean why didn’t it simply refer to exclusion rather than return?

Maureen E. Mahoney:

The word return, as Judge Walker notes in his dissent, had been used as a reference in statutes before to the manner in which you exclude people from the United States.

If the statute had read deport or exclude to a country where they would be threatened with persecution, it wouldn’t make any sense.

So in order to respond to the concern that… that the INS had that they’d like to go ahead and extend it to exclusion proceedings, they need to add… take out “within the United States” and add another word.

This was done voluntarily by the INS when the ’80 act was being amended.

In fact, Stevic and Cardoza-Fonseca say that it is important to look at how the act was being interpreted in the 12-year period after accession to the protocol and prior to the amendment, because we should conclude that what we were doing during that 12-year period was consistent with the protocol.

And contrary to what Mr. Koh has said, the INS in fact, and the BIA took the position repeatedly that 243(h) had not been extended to exclusion proceedings.

In Matter of Pierre that was settled by the BIA, it still during that period applied only to persons who were within the United States, but we believed that we were in compliance with the protocol and, in fact, we were.

William H. Rehnquist:

Thank you, Ms. Mahoney.

The case is submitted.