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McNary v. Haitian Centers Council, U.S. Supreme Court, On Writ of Certiorari, U.S. Court of Appeals Second Circuit : Brief for the Petitioners</DIV>

<B><CENTER>No. 92-344</CENTER></B>
<BR><BR>
<HR>
<BR><BR>
<B><H4 ALIGN="CENTER">In the Supreme Court of the United States</H4></B>
<BR>
<BR><CENTER>OCTOBER TERM, 1992
<BR></CENTER>
<CENTER>GENE MC NARY, COMMISSIONER, IMMIGRATION AND</CENTER>
<CENTER>NATURALIZATION SERVICE, ET AL.. PETITIONERS</CENTER>
<BR><BR><I><CENTER>v.</CENTER></I>
<BR><BR><CENTER>HAITIAN CENTERS COUNCIL INC., ET. AL.</CENTER>
<BR>
<H5 ALIGN="CENTER"><I>ON WRIT OF CERTIORARI</I></H4>
<H5 ALIGN="CENTER"><I>TO THE UNITED STATES COURT OF APPEALS</I></H4>
<H5 ALIGN="CENTER"><I>FOR THE SECOND CIRCUIT</I></H4>
<BR>
<BR><B> <CENTER>BRIEF FOR THE PETITIONERS</CENTER>
</B><BR>
<BR><PRE>EDWIN D.WILIAMSON
<I>Legal Adviser</I>

ALAN J.KRECZKO
<I>Deputy Legal Adviser</I>

MICHELLE KLEIN SOLOMON
<I>Attorney</I>
Department of State
Washington, D.C. 20520

KENNETH W.STARR
<I>Solicitor General</I>

STUART M.GERSON
<I>Assistant Attorney General</I>

MAUREEN E.MAHONEY
<I>Deputy Solicitor General</I>

PAUL T.CAPPUCCIO
<I>Associate Deputy Attorney General</I>

EDWIN S.KNEEDLER
<I>Assistant to the Solicitor General</I>

MICHAEL JAY SINGER 
MALCOLM L.STEWART
<I>Attorneys</I>
Department of Justice
Washington, D.C. 20580
(202) 514-2217</PRE>
<HR>
<B><CENTER>QUESTION PRESENTED</CENTER></B>
<BR>
<BR><P>Whether the court of appeals properly ordered the district 
court to enter a preliminary injunction barring implementation of 
Executive Order No. 12,807, which was issued by the President on 
May 24, 1992, to authorize repatriation directly to Haiti of 
Haitian migrants interdicted by the United States Coast Guard on 
the high seas.</P>


<CENTER>II</CENTER><BR>
<BR><B><CENTER>PARTIES TO THE PROCEEDING</CENTER>
</B><BR>
<P>The petitioners are Lawrence Eagleburger, Acting Secretary 
of State (substituted as a party pursuant to Rule 35.3); William 
P. Barr, the Attorney General; Gene McNary, the Commissioner of 
the Immigration and Naturalization Service; Rear Admiral Robert 
Kramek and Admiral J. William Kime, United States Coast Guard; 
and the Commander of the United States Naval Base at Guantanamo 
Bay, Cuba.</P>

<P>The respondents are the Haitian Centers Council, Inc, the 
National Coalition for Haitian Refugees, Inc., the Immigration 
Law Clinic of the Jerome N. Frank Legal Services Organization of 
New Haven, Connecticut, and the following individual Haitian 
nationals: Dr. Frantz Guerrier, Pascal Henry, Lauriton Guneau, 
Medilieu Sorel St. Fleur, Dieu Renel, Milot Baptiste, Jean Doe, 
Roges Noel, A. Iris Vilnor, Mireille Berger, Yvrose Pierre and 
Mathieu Noel. The individual respondents brought the action on 
behalf of others similarly situated with respect to the 
interdiction program, including subclasses consisting of Haitian 
migrants who had been "screened in" or "screened out" or were 
awaiting screening, relatives of such individuals; and Haitian 
migrants who had retained one of the respondent organizations to 
represent them. Compl. &#182;&#182; 36-41 (J.A.--).
</P>
<BR>
<H4 ALIGN="CENTER"><B>In the Supreme Court of the United States</B></H4><BR>
<CENTER>OCTOBER TERM, 1992</CENTER>
<BR>
<BR><CENTER>No. 92-344</CENTER>
<BR>
<CENTER>GENE MC NARY, COMMISSIONER, IMMIGRATION AND</CENTER>
<CENTER>NATURALIZATION SERVICE, ET AL.. PETITIONERS</CENTER><BR>
<CENTER><I>v.</I></CENTER><BR>
<CENTER>HAITIAN CENTERS COUNCIL INC., ET. AL.</CENTER>
<BR>
<I><CENTER>ON WRIT OF CERTIORARI</CENTER>
<CENTER>TO THE UNITED STATES COURT OF APPEALS</CENTER>
<CENTER>FOR THE SECOND CIRCUIT</CENTER></I>
<BR>
<CENTER><B>BRIEF FOR THE PETITIONERS</B></CENTER>
<BR><BR>
<CENTER><B>OPINIONS BELOW</B></CENTER>
<BR>
<P>The court of appeals' opinions (Pet. App. 1a-72a, 73a-124a) 
are reported at 969 F.2d 1350 and 969 F.2d 1326. The district 
court's opinions (Pet. App. 125a-141a, 142a-163a, 164a-168a, 
169a-170a) are not reported. The Eleventh Circuit's opinions in 
<I>Haitian Refugee Center v. Baker </I>(Pet. App. 171a-189a, 190a-252a) 
are reported at 949 F.2d 1109 and 953 F.2d 1498.</P>

<CENTER><B>JURISDICTION</B></CENTER>

<P>The judgment of the court of appeals was entered on July 29, 
1992. The petition for a writ of certiorari was filed on August 
24, 1992, and was granted on October 5, 1992. J.A. . The 
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).</P>
<BR>

	


<B><CENTER>TREATIES, STATUTES AND</CENTER></B>
<B><CENTER>EXECUTIVE ORDERS INVOLVED</CENTER></B>
<BR>
<P>The U.N. Convention Relating to the Status of Refugees; U.N. 
Protocol Relating to the Status of Refugees; 1981 Agreement 
Effected by Exchange of Notes, U.S.Republic of Haiti; 6 U.S.C. 
701(a) and 702; 8 U.S.C. 1105a, 1157-1158, 1251-1253; 
Presidential Proclamation No. 4865; and Executive Orders Nos. 
12,807 and 12,324 are reproduced at J.A.____.</P>

<B><CENTER>STATEMENT</CENTER></B>
<BR>
<P>1. This case arises out of the President's exercise of his 
constitutional and statutory authority to establish a program for 
interdicting would-be illegal migrants on the high seas. See 8 
U.S.C. 1182(f), 1185(a); 14 U.S.C. 89. The interdiction program 
was instituted by a Proclamation issued by the President on 
September 29, 1981. Proc. No. 4865, 46 Fed. Reg. 48,107 (1981) 
(J.A. ). The President found that uncontrolled illegal 
immigration by sea is a "serious national problem" and 
"detrimental to the interests of the United States." <I>Ibid.</I> 
Accordingly, "to protect the sovereignty of the United States," 
he proclaimed that "[t]he entry of undocumented aliens from the 
high seas is hereby suspended and shall be prevented by the interdiction of certain vessels carrying such <A NAME="backfn1">aliens</A>." <I>Ibid.</I><A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fn.htm#fn1" HREF="b344fn.htm#fn1">(1)</A></P>

<P>On the same day, the President also issued Executive Order 
No. 12,324, 46 Fed. Reg. 48,109 (1981) (J.A. ), "to carry out the 
suspension [of entry] and interdiction" that had "concurrently 
been proclaimed." <I>Ibid.</I> The Order instructed the Coast Guard to 
intercept vessels suspected of transporting illegal migrants and 
to return all passengers without proper documentation to their 
country of



origin, subject to a proviso that any "person who is a refugee" 
would not be repatriated without his consent. '' Secs. 2(c)(1) and (3) 
(J.A.  ).</P>

<P>To implement the Executive Order, the Immigration and 
Naturalization Service (INS) conducted informal, nonadversarial 
"screening" interviews of interdictees on board Coast Guard 
cutters. Any interdictees who made a credible showing of 
political refugee status were tentatively "screened in" and 
brought to the United States, where they could file a formal 
application for political asylum under 8 U.S.C. 1158 -- and, in the 
process, attempt to establish that they were in fact "refugees" 
under 8 U.S.C. 1101(a)(42)(A). Interdictees unable to make such a 
threshold showing were "screened out" and returned immediately 
to Haiti. Pet. App. 75a-76a, 193a-197a.</P>

<P>The interdiction program has been effective in enforcing our 
immigration laws. Between 1981 and 1991, more than 25,000 
would-be illegal migrants were interdicted. From October 1991 to 
May 1992, an additional 35,000 individuals were interdicted. 
<A NAME="backfn2">Leahy</A> Decl. &#182;&#182; 3, 4 and attachments (DX 152; J.A.   ).<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fn.htm#fn2" HREF="b344fn.htm#fn2">(2)</A>  The 
program has also saved countless lives, as many of the boats 
could not have completed the long voyage to the United States.</P>

<P>2. a. The present crisis began with a military coup in Haiti 
on September 30, 1991, in which the democratically elected 
government of President Jean-Bertrand Aristide was overthrown. 
Although the United States temporarily halted repatriation of 
interdicted Haitian migrants following the coup, it resumed 
repatriations on November 18, 1991, when the immediate post-coup 
violence subsided Pet. App. 76a, 144a, 197a.</P>

<P>On November 19, 1991, the Haitian Refugee Center and others 
filed a suit (<I>HRC v. Baker</I>) in the Southern District of Florida. 
Pet. App. 76a. They contended, <I>inter alia</I>,



that the repatriations violated 8 U.S.C. 1253(h), which provides 
that the Attorney General shall not deport or return an alien to 
a country if he determines that the alien's life or freedom would 
be threatened on account of political opinion. The district court 
immediately entered a temporary restraining order. DX 22. Because 
interdictions were continuing at a high rate and Coast Guard 
vessels were seriously overcrowded, U.S. officials decided to 
house interdictees temporarily at the U.S. Naval Base at 
Guantanamo Bay, Cuba. Cummings Decl. &#182; 11 (DX 119).
</P>
<P>The district court in <I>HRC</I> subsequently certified a plaintiff 
class described below as (Pet. App. 7a):</P>
<BLOCKQUOTE>all Haitian aliens who are currently detained or who will in 
the future be detained on U.S. Coast Guard cutters or at 
Guantanamo Naval [B]ase who were interdicted on the high 
seas pursuant to the United States Interdiction Program and 
who are being denied First Amendment and procedural rights.</BLOCKQUOTE>

<P>See also J.A. . On December 3, 1991, the court then entered a 
preliminary injunction that continued the prohibition against 
repatriations. DX 120. The court relied on what it found to be a 
First Amendment right of plaintiff HRC to have access to the 
interdictees, and on Article 33.1 of the United Nations 
Convention Relating to the Status of Refugees, July 28, 1951, 189 
U.N.T.S. 160, which provides that a Contracting State shall not 
"expel or return ('refouler')" a refugee to a country where his 
life or freedom would be threatened on account of political 
<A NAME="backfn3">opinion</A>.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fn.htm#fn3" HREF="b344fn.htm#fn3">(3)</A>  At the same time, the court rejected the claim by the 
class of present and future interdictees under 8 U.S.C. 1253(h), 
explaining that "the statutory rights and protections asserted 
are reserved, by the very terms of the statute[ ],. to aliens 
within the United States." <I>Id.</I> at 63.</P>



<P>The Eleventh Circuit reversed the preliminary injunction, 
Pet. App. 171a-189a (<I>HRC I</I>), but the district court immediately 
entered further injunctions on other grounds. See Pet. App. 
l99a-202a. In late January 1992, the government sought emergency 
relief from the Eleventh Circuit, supported by evidence that the 
bar to repatriations was exacerbating the crisis by providing an 
incentive for Haitians to take to the seas. When the Eleventh 
Circuit failed to act promptly, the government sought a stay in 
this Court. This Court granted a stay the next day, and thus 
permitted repatriations to resume. 112 S. Ct. 1072 (1992). A few 
days later, the Eleventh Circuit reversed the remaining 
injunctions and ordered dismissal of the suit. Pet. App. 
190a-252a (<I>HRC II</I>). It expressly rejected the Haitian plaintiffs' 
claim under 8 U.S.C. 1253(h), explaining that Section 1253(h) "is 
found in Part V of the INA" and that "[t]he [relevant] provisions 
of Part V * * * only apply to aliens 'in the United States."' 
Pet. App. 215a (quoting 8 U.S.C. 1251, 1253(a)). This Court 
denied the HRC plaintiffs' certiorari petition on February 24, 
1992. 112 S. Ct. 1245.</P>

<P>3. Less than a month later, respondents filed this suit in 
the Eastern District of New York, raising essentially the same 
challenges to the interdiction program that had been rejected in 
<I>HRC</I>. See J.A. (2d Amend. Compl.). On April 6, 1992, the district 
court, relying on the First Amendment and the Due Process Clause, 
entered a preliminary injunction that (i) required petitioners to 
grant the respondent organizations "access" to interdictees 
housed at Guantanamo, and (ii) enjoined petitioners from 
reinterviewing or repatriating any interdictee who had been 
"screened in," without first allowing him to communicate with a 
<A NAME="backfn4">lawyer</A>. Pet. App. 142a-163a.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fn.htm#fn4" HREF="b344fn.htm#fn4">(4)</A>  The

court certified a class of "screened in plaintiffs" entitled to 
that relief.<I> Id.</I> at 161a-162a. After unsuccessfully seeking a 
stay in the court of appeals, the government sought relief in 
this Court, which granted a stay on April 22, 1992. 112 S. Ct. 
1714.</P>

<P>On June 10, 1992, the court of appeals vacated those 
portions of the preliminary injunction that required the 
government to grant the respondent organizations access to 
Guantanamo, but affirmed the prohibition against further 
processing or repatriation of "screened in" interdictees without 
affording them an opportunity to communicate with a lawyer. Pet. 
App. 73a-124a. On September 22, 1992, we filed a certiorari 
petition seeking review of the court of appeals' June 10 
decision. See <I>McNary v. Haitian Centers Council, Inc</I>., No. 
92-528.
</P>
<P>4. In May 1992, while the government's appeal of the 
preliminary injunction granting the respondent organizations 
access to Guantanamo was still pending before the Second Circuit, 
the number of individuals leaving Haiti surged dramatically: 
nearly 10,600 Haitians were interdicted in the first 20 days of 
that month, exceeding the total for the prior three months 
combined. By May 20, the tent camp at Guantanamo was nearing 
capacity. Leahy Decl. &#182;&#182; 5-6 (DX 152; J.A. ); Allen Decl. &#182;&#182; 2-3 
(DX 153; J.A. ). For that reason, and to avoid dangerous 
overloading of its cutters, the Coast Guard issued orders to 
interdict only boats in imminent danger of foundering. But the 
migration continued, in unseaworthy and overloaded boats. At 
about the same time, a Haitian boat capsized off Cuba, resulting 
in the death of approximately half the forty migrants aboard. 
Leahy Decl. &#182;&#182; 6, 7 (J.A. ). In addition, the State Department 
believed that a massive outmigration would make the United States 
"vulnerable to

pressure tactics from the de facto authorities in Haiti * * * to 
abandon the embargo and other measures designed to speed the 
return of democracy." Kanter Decl.&#182; 4 (DX 164; J.A. ).</P>

<P>At this juncture, the President had limited options. In 
light of the saturation of Guantanamo and Coast Guard cutters, 
the unwillingness of third countries to accept significant 
numbers of Haitian migrants, and the continuing massive outflow 
and risk of loss of life, the only practicable alternatives were 
either to bring all interdictees directly to the United States 
for screening, or to repatriate them all to Haiti immediately 
upon interdiction. Based on the judgment that the former course 
would precipitate a further outflow of a magnitude as yet unknown 
(with an even greater prospect of chaos and loss of life), the 
President concluded that all interdictees should be repatriated 
directly to Haiti. That conclusion was embodied in Executive 
Order No. 12,807, 57 Fed. Reg. 23,133 (1992) (J.A. ), issued May 
<A NAME="backfn5">24</A>, 1992, which replaced the 1981 Executive Order.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fn.htm#fn5" HREF="b344fn.htm#fn5">(5)</A>  At the same 
time, the President decided to provide all Haitians access to 
processing of applications for refugee admission to the United 
States at our Embassy in Port-au-Prince, pursuant to 8 U.S.C. 
1157 (Kanter Decl. &#182;&#182; 8,10-11 (J.A. )), and to assured adequate 
Embassy staffing for that purpose. The President also ordered an 
immediate increase in humanitarian aid for the people of Haiti, 
and called on the international community to furnish additional 
assistance. 28 Weekly Comp. Pres. Doc. 924 (1992) (J.A. ). We 
have


been informed by the State Department that as of October 30, 
1992, it had received applications on behalf of 16,666 persons 
since refugee processing began in Haiti earlier this year, that 
INS had adjudicated 2606 applications, and that 246 applications 
had been approved.</P>

<P>5. On May 27, 1992, respondents applied for a temporary 
restraining order to bar implementation of the May 24 Executive 
Order. Treating the application as a motion for a preliminary 
injunction, the district court denied relief. Pet. App. 
164a-168a. It held, inter alia, that "Section [1263(h)] is * * * 
unavailable as a source of relief for Haitian aliens in 
international waters." <I>Id</I>. at 167a-168a.</P>

<P>6. On July 29, 1992, a divided Second Circuit panel reversed 
and ordered entry of a preliminary injunction, albeit without 
addressing the government's argument that the INA precludes 
judicial review of the interdiction program. Pet. App. 1a-72a.</P>

<P>a. The majority first held that the Haitian plaintiffs' 
claim under 8 U.S.C. 1263(h) is not barred under collateral 
estoppel principles by the Eleventh Circuit's holding in <I>HRC II </I>
that Section 1263(h) does not apply to aliens outside the United 
States. Pet. App. 7a-14a. The majority acknowledged that the<I> HRC</I> 
class includes "all Haitian aliens who are currently detained or 
who will in the future be detained * * * who were interdicted on 
the high seas pursuant to the United States Interdiction 
Program." <I>Id.</I> at 7a. But it believed that the class here consists 
of different plaintiffs, on the theory that interdictions after 
May 24 are not pursuant to the "United States Interdiction 
Program" referred to in <I>HRC</I>, but pursuant to a "different" 
program that provides for repatriation without screening. <I>Id</I>. at 
9a-11a. The majority also expressed the view that collateral 
estoppel should not apply because the May 1992 Executive Order 
constituted "an intervening change in the applicable legal 
context," because "few judicial resources would be saved by 
collaterally estopping these plaintiffs," and because "[t]he

federal judicial hierarchy deserves this opportunity to consider 
this weighty issue on the merits." <I>Id. </I>at 12a-14a.</P>

<P>Reaching the merits, the majority held that 8 U.S.C. 1253(h) 
applies to aliens outside the United States. It acknowledged the 
presumption against extraterritorial application of federal 
statutes, but found the presumption overcome here by the 
reference in Section 1253(h) to "any alien." Pet. App. 15a-18a. 
The majority disagreed with the Eleventh Circuit's view in <I>HRC ll </I>
that the various references in Part V of the INA to aliens "in 
the United States" establish that Section 1253(h) is so limited. 
<I>ld.</I> at 19a-21a. The government also argued that its inter-
pretation of Section 1253(h) is supported by Article 33.1 of the 
U.N. Convention, to which Section 1253(h) was meant to conform, 
pointing out that the May 1992 Executive Order formally construes 
Article 33.1 not to apply to aliens outside the territory of a 
Contracting State. The majority, however, rejected the 
President's construction of Article 33.1 (Pet. App. 23a-35a), 
labeling it a "litigating posture" (<I>id.</I> at 30a, 31a), and held 
that Section 1263(h) creates a right of non-repatriation that is 
independent of the rest of Part V of the INA. <I>Id</I>. at 35a.</P>

<P>b. Judge Walker dissented. Pet. App. 43a-62a. He would have 
found the interdictees' claim barred by collateral estoppel,<I> id.</I> 
at 43a-52a, because extraterritorial application of Section 
1253(h) was rejected in <I>HRC</I>, and because the certified class in 
this case ("all Haitian citizens who have been or will be 
screened in") is included within the <I>HRC</I> class of Haitians "who 
are currently detained or who in the future will be detained." 
<I>Id.</I> at 45a-46a. Judge Walker disagreed with the majority's view 
that the May 1992 Executive Order constituted an "intervening 
change" justifying a refusal to apply collateral estoppel, <I>id</I>. at 
46a-49a, noting that "the legal grounds upon which th[e] prior 
litigation was resolved" have not changed. <I>Id.</I> at 49a-50a. On the 
merits, Judge Walker found the language of 8 U.S.C. 1253(h) 
ambiguous, Pet. App. 52a-56a, but concluded that the background 
of the 1980 amendments --

including the parallel provisions of Article 33 of the 
Convention -- made it clear that Section 1263(h) does not apply 
outside the United States. Pet. App. 56a-58a.</P>

<P>7. Later in the day on July 29, 1992, the district court 
entered a preliminary injunction in accordance with the court of 
appeals' decision, barring repatriation to Haiti of "any 
interdicted Haitian" whose life or freedom would be threatened on 
account of his or her political opinion. Pet. App. 169a-170a. On 
August 1, 1992, this Court granted petitioners' application for a 
stay of the court of appeals' judgment and the district court's 
injunction.</P>

<B><CENTER>INTRODUCTION AND SUMMARY OF ARGUMENT
</B></CENTER><BR>
<P>The May 24, 1992, Executive Order represents the President's 
considered response to a life-threatening crisis on the high 
seas. By enjoining the President's action, the court of appeals 
has interfered directly with the operation of military vessels 
under his command and upset the delicate balance of diplomatic 
and other measures he instituted to resolve the broader crisis 
concerning that country. The effect can only be to encourage yet 
another massive outmigration from Haiti. The court of appeals' 
ruling, however, rests on four fundamental errors, each 
sufficient in itself to require reversal.</P>

<P>I. The INA precludes judicial review in this case. Congress 
expressly authorized review of determinations affecting aliens 
who are in the United States or at our borders and subject to 
deportation or exclusion proceedings. See 8 U.S.C. 1105a. The 
marked absence of comparable provisions for aliens beyond our 
shores impliedly precludes judicial review at their behest. 
Moreover, Congress enacted 8 U.S.C. 1105a in 1961 to confine 
judicial review of exclusion orders to habeas corpus proceedings, 
and thereby to overturn <I><CITE>Brownell v. Tom We Shung</CITE></I>, 362 U.S. 180 
(1956), which held that such orders were also subject to review 
in a declaratory judgment action under the APA.<I> A fortiori</I>, APA 
review is not available to aliens who have not even reached our

shores. That conclusion is reinforced by the nature of the action 
respondents challenge -- a policy instituted by the President 
pursuant to broad statutory authority, implemented on the high 
seas using military vessels, and integrated into the Nation's 
overall response to the international crisis concerning Haiti.</P>

<P>II. Respondents' claim that 8 U.S.C. 1253(h) prohibits their 
repatriation to Haiti is foreclosed under the doctrine of 
collateral estoppel by the Eleventh Circuit's decision in <I>HRC v. 
Baker</I>, which rejected such a claim. The plaintiffs in this case 
do not fall outside the <I>HRC</I> class on the theory that the 
"Interdiction Program" referred to in the <I>HRC</I> class definition 
ended with the 1992 Executive Order. The interdiction program was 
established by the 1981 Presidential Proclamation, which remains 
in effect. The 1992 Executive Order merely prescribed different 
procedures after interdiction. Nor has there been any amendment 
of 8 U.S.C. 1253(h) or other change in the legal principles on 
which the Eleventh Circuit relied in <I>HRC</I> that could render 
collateral estoppel inapplicable.</P>

<P>III. On the merits, the court of appeals' holding that 8 
U.S.C. 1253(h) applies to aliens on the high seas cannot be 
reconciled with the presumption against extraterritorial 
application of Acts of Congress, because there is no clear 
expression of congressional intent to apply Section 1253(h) 
outside the United States.

Paragraph (1) of Section 1253(h) provides that "[t]he 
Attorney General shall not deport or return any alien" to a 
country if he determines that the alien would be threatened with 
persecution. Section 1253(h) speaks only to the Attorney General 
because it is located in Part V of the INA, which prescribes 
procedures for expelling aliens from the United States -- a matter 
for which the Attorney General is responsible. There is no 
mention of the Coast Guard or any other agency that might 
encounter a potential refugee outside the United States. Further-
more, numerous provisions in Part V of the INA -- including 
paragraph (2) of Section 1253(h) itself --

expressly refer to aliens "in the United States," thereby 
confirming that Section 1253(h) applies only to such aliens.
</P>
<P>This interpretation of Section 1253(h) is confirmed by 
Article 33 of the U.N. Convention Relating to the Status of 
Refugees, after which Section 1253(h) was patterned. The 
President has formally construed Article 33 not to apply outside 
United States territory, and that interpretation is entitled to 
great weight. Nothing in paragraph 1 of Article 33 -- which 
provides that a Contracting State shall not "expel or return 
('refouler')" a refugee -- is to the contrary. The word "expel" in 
Article 33 obviously refers to an alien in the Contracting State, 
and one meaning of the French word "refouler" is "expel 
(aliens)," which indicates that the term "return ('refouler')" in 
Article 33 rests on a parallel territorial premise. Moreover, 
paragraph 2 of Article 33 expressly contemplates that a refugee 
protected by that Article has already arrived in his country of 
refuge. This territorial premise is woven into numerous other 
provisions of the Convention as well. In addition, the 
negotiating history conclusively demonstrates that this indeed 
was the parties' intent, and Article 33 was interpreted in that 
manner when the United States acceded to the Convention in 1968, 
when 8 U.S.C. 1253(h) was amended to conform to Article 33 in 
1980, and when the State Department addressed the issue in a 
formal policy statement in 1972, congressional testimony, and 
international negotiations.</P>

<P>Contrary to the court of appeals' view, the 1980 amendments 
to 8 U.S.C. 1253(h) that deleted the phrase "within the United 
States" did not extend it to aliens beyond our borders. The 
legislative history of those amendments shows that they had the 
far more modest purpose of applying Section 1253(h) in exclusion 
as well as deportation proceedings, because <I>Leng May Ma v. 
Barber</I>, 357 U.S. 185 (1958), had relied on the phrase "within the 
United States" in holding that the prior version of Section 
1253(h) did not apply in exclusion proceedings.</P>

<P>IV. Equitable principles in any event foreclose an award of 
injunctive relief to aliens outside the United States that bars 
implementation of the President's directives in this sensitive 
area of military operations and foreign policy.
</P>
<BR>
<BR><B><CENTER>ARGUMENT</CENTER></B>

<B><P>THE COURT OF APPEALS IMPROPERLY ENJOINED IMPLEMENTATION OF THE 
PRESIDENT'S DIRECTIVE IN EXECUTIVE ORDER 12,807 TO REPATRIATE IN-
TERDICTED HAITIAN MIGRANTS DIRECTLY TO HAITI</P></B>

<P><B>I.  JUDICIAL REVIEW OF THE PRESIDENT'S POLICY IS 
PRECLUDED BY THE IMMIGRATION AND NATIONALITY 
ACT</B></P>

<P>The Haitian plaintiffs in this case -- aliens who are outside 
the United States -- have no basis for invoking the jurisdiction of 
U.S. courts to seek the extraordinary relief ordered here. The 
only plausible basis for judicial review would be the cause of 
action established by the Administrative Procedure Act (APA), 5 
U.S.C. 701 <I>et seq.</I> But as the Eleventh Circuit held in <I>HRC II</I>, 
Pet. App. 204a-209a, the INA impliedly "preclude[s] judicial 
<A NAME="backfn6">review</A>" under the APA in this setting. See 5 U.S.C. 701(a)(1).<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fn.htm#fn6" HREF="b344fn.htm#fn6">(6)</A> </P>

<P>Whether a statute precludes judicial review "is determined 
not only from its express language, but also from the structure 
of the statutory scheme, its objectives, its legislative history, 
and the nature of the administrative action involved." <I><CITE>Block v. 
Community Nutrition Inst.</CITE></I>, 467 U.S. 340, 345 (1984); accord, 
<I><CITE>Department of the Navy v. Egan</CITE></I>, 484 U.S. 518, 530 (1988); <I><CITE>NLRB v. 
United Food & Commercial Workers Union</CITE></I>, 484 U.S. 112, 131-133 
(1987); see also <I><CITE>Switchmen's Union v. National Mediation Bd.</CITE></I>, 320 
U.S. 297, 301 (1943) ("type of problem involved" and "history of 
the statute" are "highly relevant"). Furthermore, any 
"presumption" of reviewability "runs




aground when it encounters concerns of national security," <I>Egan</I>, 
484 U.S. at 527 -- including, here, the President's conduct of 
foreign relations and his institution of measures outside the 
<A NAME="backfn7">United</A> States to protect the Nation's borders.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fn.htm#fn7" HREF="b344fn.htm#fn7">(7)</A>  These 
considerations require the conclusion that the INA forecloses 
review of the President's action.</P>

<P>A. The INA prescribes detailed procedures for administrative 
and judicial review of refugee and other determinations made with 
respect to aliens who have arrived in the United States but, in 
marked contrast, the Act contains no comparable provisions for 
administrative or judicial review at the behest of aliens outside 
the United States. Thus, the Act establishes detailed procedures 
for administrative hearings in both exclusion and deportation 
cases, 8 U.S.C. 1226, 1252, and specifically provides in 8 U.S.C. 
1105a for judicial review. Section 1105a(a) states that the 
procedure established by 28 U.S.C. 2341-2351, which provides for 
judicial review directly in the courts of appeals, "shall be the 
sole and exclusive procedure" for judicial review of final orders 
of deportation made under 8 U.S.C. 1252(b) against aliens "within 
the United States." Section 1105a(b) states that, "[n]otwith-
standing the provisions of any other law," an alien against whom 
a final order of exclusion has been made under 8 U.S.C. 1226 "may 
obtain judicial review of such order by habeas corpus proceedings 
and not otherwise." This

provision likewise is available only to aliens who have 
<A NAME="backfn8">already</A> arrived at our borders.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fn.htm#fn8" HREF="b344fn.htm#fn8">(8)</A> </P>

<P>By contrast, 8 U.S.C. 1167, which confers discretionary 
authority on the President and the Attorney General with respect 
to aliens outaide the United States who seek refugee status, does 
not provide for either administrative or judicial review. <I>HRC lI</I>, 
Pet. App. 206a. Accordingly, Congress's intent to preclude 
judicial review for such aliens is "'fairly discernible' in the 
detail of the legislative scheme," <I>Community Nutrition Inst.</I> 467 
U.S. at 351, for where "a statute provides a detailed mechanism 
for * * * judicial review of particular issues at the behest of 
[particular] persons, judicial review of those issues at the 
behest of other persons [is] impliedly precluded." <I>Id.</I> at 349; 
see also <I><CITE>United States v. Fausto</CITE></I>, 484 U.S. 439, 448-449 (1988); 
<I><CITE>United States v. Erika, Inc</I>.</CITE>, 456 U.S. 201, 208 (1982). This 
result conforms to Congress's traditional unwillingness to permit 
judicial review of immigration decisions concerning aliens who 
have "never presented [themselves] at the borders."<I> Brownell v. 
<A NAME="backfn9">Tom</A> We Shung,</I> 362 U.S.C. 180, 184 n.3 (1956).<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fn.htm#fn9" HREF="b344fn.htm#fn9">(9)</A> </P>

<P>B. When Congress enacted 8 U.S.C. 1106a(b) in 1961 (Pub. L. 
No. 87-301, Sec. 5(a), 76 Stat. 661), it did so for the specific 
purpose of precluding APA suits to challenge


exclusion decisions. Prior to those amendments, this Court had 
held in <I>Tom We Shung</I> that an alien could challenge an order of 
exclusion in a declaratory judgment action brought under Section 
10 of the APA, 6 U.S.C. 1009 (1962), rejecting the government's 
contention that judicial review was confined to habeas corpus 
proceedings, as it had been prior to enactment of the INA in 
1962. See 362 U.S. at 182, 184-185. The House Report on the 1961 
amendments contains an extensive discussion of <I>Tom We Shung</I>, and 
it expresses an intention to overrule that decision and to 
restore the prior practice of confining judicial review of 
exclusion matters to habeas corpus proceedings. See H.R. Rep. No. 
1086, 87th Cong., 1st Sess. 30-33 (1961); compare <I><CITE>Ardestani v. 
INS</CITE></I>, 112 S. Ct. 616, 618519 (1991). In light of Congress's 
preclusion of review under the APA even for aliens who have 
reached our borders, it follows <I>a fortiori</I> that aliens who have 
never reached our borders may not invoke the APA to challenge 
governmental actions in connection with their efforts to enter 
<A NAME="backfn10">the</A> United States.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fn.htm#fn10" HREF="b344fn.htm#fn10">(10)</A>  See also H.R. Rep. No. 1086,<I> supra</I>, at 33 
("The sovereign United States cannot give recognition to a 
fallacious doctrine that an alien has a 'right' to enter this 
country which he may litigate in the courts of the United States 
against the U.S. Government as a defendant.").
</P>
<P>It also is significant that even as the Court held in <I>Tom We 
Shung</I> that APA review was available to aliens who were 
challenging an order of exclusion, it pointedly did "not suggest, 
of course, that an alien who has never presented himself at the 
borders of this country may avail himself of the declaratory 
judgment action by bringing the action from abroad." 352 U.S. at 
184 n.3. The Court also

quoted a passage in the 1962 Senate Report on the INA stating 
that although the INA then omitted a provision limiting judicial 
review of exclusion determinations to habeas corpus proceedings, 
that omission was "not intended to grant any review of 
determinations made by consular officers." 352 U.S. at 185 n.6 
(quoting S. Rep. No. 1137, 82d Cong., 2d Sess. 28 (1952)). When 
Congress enacted 8 U.S.C. 1105a(b) in 1961 to overturn <I>Tom We 
Shung</I> in other respects, it did not disturb the settled 
understanding reflected in the Court's opinion that judicial 
review is not available to aliens outside the United States.</P>

<P>C. The "nature of the administrative action" respondents 
challenge and the "type of problem involved" also weigh heavily 
against recognizing a right of judicial review here. <I>Community 
Nutntion Inst</I>., 467 U.S. at 345; <I>Switchmen's Union</I>, 320 U.S. at 
301. The interdiction policy was instituted by the President 
pursuant to his broad statutory authority to protect the Nation's 
borders and to restrict entry of any aliens or class of aliens 
"[w]henever the President finds" that their entry "would be 
detrimental to the interests of the United States." 8 U.S.C. 
<A NAME="backfn11">1182</A>(f).<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fn.htm#fn11" HREF="b344fn.htm#fn11">(11)</A>  The fact that the INA assigns this responsibility 
directly to the President is sufficient in itself to demonstrate 
that Congress did not contemplate any role for the courts. 
<I><CITE>Franklin v. Massachusetts</CITE></I>, 112 S. Ct. 2767, 2775-2776 (1992). So, 
too, is the fact that the Act grants authority in discretionary 
terms and conditions its exercise only upon a Presidential 
finding concerning the "interests of the United States," which 
renders the President's actions particularly unamenable to 
judicial

scrutiny. <I><CITE>United States ex ref. Knauff v. Shaughnessy</CITE></I>, 338 U.S. 
537, 542-543 (1950); <I><CITE>Ludecke v. Watkins</CITE></I>, 335 U.S. 160 (1948); see 
also <I><CITE>Webster v. Doe</CITE></I>, 486 U.S. 692, 600 (1988); <I><CITE>Chicago & Southern 
Air Lines, Inc. v. Waterman Steamship Corp</I>.</CITE>, 333 U.S. 103, 
110-114 (1948); <I><CITE>United States v. George S. Bush & Co.</CITE></I>, 310 U.S. 
371, 379-380 (1940).</P>

<P>The soundness of the INA's preclusion of review is 
especially evident in this case, because the measures respondents 
challenge -- interdiction of aliens on the high seas and 
repatriation to a foreign country, through use of military 
vessels and as part of the United States' overall response to the 
international crisis affecting Haiti -- are integral to the 
President's responsibilities as Commander in Chief (U.S. Const. 
Art. II, Sec. 2, Cl. 1) and the "sole organ of the nation in its 
external relations," <I><CITE>United States v. Curtiss-Wright Export Corp.</CITE></I>, 
299 U.S. 304, 319 (1936). The courts should not review the 
President's orders in this setting in the absence of the clearest 
expression of congressional intent to allow them to do so. There 
simply is no such expression here.</P>

<BR>
<P><B>II. 		RESPONDENTS' CLAIM UNDER 8 U.S.C. 
1253(h) IS BARRED UNDER COLLATERAL 
ESTOPPEL PRINCIPLES BY THE ELEVENTH 
CIRCUIT'S JUDGMENT IN <I>HRC v. BAKER</I>
</B></P>
<P>The statutory preclusion of review discussed in Point I, 
<I>supra</I>, is not the only obstacle to this suit. The doctrine of 
collateral estopped likewise bars respondents' challenge to the 
May 1992 Executive Order under 8 U.S.C. 1253(h), by virtue of the 
Eleventh Circuit's judgment in <I>HRC II</I>.</P>

<P>"[U]nder elementary principles of prior adjudication a 
judgment in a properly entertained class action is binding on 
class members in any subsequent litigation." <I><CITE>Cooper v. Federal 
Reserve Bank</CITE></I>, 467 U.S. 867, 874 (1984). Indeed, strict 
application of preclusion principles is essential to the proper 
functioning of the class action mechanism. As <PERSON>Judge Walker</PERSON> noted 
in dissent below, "[t]he policy behind the class action device 
is, of course, to facilitate the final

determination of numerous claims in one suit. This policy is not 
furthered by allowing subsequent collateral attacks by class 
members." Pet. App. 44a.</P>

<P>Although res judicata does not bar respondents' challenge to 
a change in policy that occurred after the conclusion of the <I>HRC </I>
litigation, collateral estoppel does bar this challenge because 
the dispositive legal issues and the parties to the class simply 
have not changed. "Under collateral estoppel, once a court has 
decided an issue of fact or law necessary to its judgment, that 
decision may preclude relitigation of the issue in a suit on a 
different cause of action involving a party to the first case." 
<I><CITE>Allen v. McCurry</CITE></I>, 449 U.S. 90, 94 (1980) (emphasis added). 
Indeed, the distinctive feature of collateral estoppel (as 
opposed to res judicata) is precisely that it does not depend 
upon an identity between the causes of action asserted in prior 
and subsequent litigation. <I><CITE>Montana v. United States</CITE>,</I> 440 U.S. 
147, 154 (1979); 1BJ. <I>Moore, Federal Practice</I> &#182; 0.441[2], at 724 
(2d ed. 1992).</P>

<P>The Eleventh Circuit held in<I> HRC II</I> that 8 U.S.C. 1253(h) 
does not apply to aliens who are not "in the United States." Pet. 
App. 214a-216a. That ruling bound a class of "[a]ll Haitian 
refugees who are currently detained or who in the future will be 
detained on United States Coast Guard Cutters and at Guantanamo 
Naval Base or elsewhere who were or will be interdicted on the 
high seas pursuant to the United States Interdiction Program and 
who are being denied * * * procedural rights." <I>HRC </I>2d Amend. 
Compl. (J.A. ); Pet. App. 7a. The Haitian plaintiffs in this case 
fall squarely within that definition: they have been or will be 
interdicted on the high seas pursuant to the President's 
interdiction program, and as in <I>HRC</I>, they allege a lack of 
suitable screening procedures. The court of appeals nevertheless 
held that the Haitian plaintiffs in this case are not bound by 
the judgment in <I>HRC II</I>. Its analysis cannot withstand scrutiny.
</P>
<P>A. The court below first held that the plaintiffs in this 
case do not fall within the class definition in <I>HRC</I> because the 
President's issuance of the May 1992 Executive Order marked an 
end to the "United States Interdiction Program" referred to in 
<I>HRC</I>. Pet. App. 9a-11a. That is wrong. As Judge Walker noted, both 
the 1992 Executive Order and its predecessor were issued to carry 
out the 1981 Presidential Proclamation, which was entitled "High 
Seas Interdiction of Illegal Aliens." Pet. App. 47a; see pages 
2-3, <I>supra</I>. It was the Proclamation, which remains in effect to 
this day, that established the interdiction program. Although the 
1992 Executive Order changed the manner in which Haitian migrants 
are processed <I>after </I>they are interdicted, it did not end the 
ongoing interdiction program or eliminate the identity of the 
parties who have challenged the government's procedures as 
inadequate under 8 U.S.C. 1253(h) both before <I>and</I> after that 
<A NAME="backfn12">Order</A>.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fn.htm#fn12" HREF="b344fn.htm#fn12">(12)</A></P>

<P>Accordingly, <I>all</I> Haitian migrants repatriated pursuant to the 
1992 Executive Order fall squarely within the class certified in 
<A NAME="backfn13"><I>HRC</I></A>.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fn.htm#fn13" HREF="b344fn.htm#fn13">(13)</A></P>

<P>The <I>HRC</I> plaintiffs did not draft their class definition with 
the intention of placing narrow limits on the scope of the class. 
Rather, they sought to ensure adjudication of the rights of <I>all</I> 
Haitian migrants who might thereafter be interdicted on the high 
seas and who might therefore benefit from a holding that 8 U.S.C. 
1253(h) applies in that setting -- a class that unquestionably 
includes the Haitian plaintiffs in this case. Moreover, insofar 
as the extraterritorial application of Section 1253(h) is 
concerned, Haitian migrants interdicted prior to May 24, 1992, 
share a community of interests with those interdicted thereafter. 
It accordingly is entirely fair that the plaintiffs in this case 
who invoke Section 1253(h) to challenge the 1992 Executive Order 
are bound by the judgment in <I>HRC II</I>.
</P>
<P>B. The court of appeals also held that respondents' claims 
under 8 U.S.C. 1253(h) are not precluded by the judgment in <I>HRC 
II</I> because the 1992 Executive Order constituted "an intervening 
change in the applicable legal context." Pet. App. 12a. That 
exception to ordinary preclusion principles, however, applies 
only where there have been "modifications in 'controlling legal 
principles,' [which] * * * could render a previous determination 
inconsistent with prevailing doctrine." <I>Montana</I>, 440 U.S. at 161. 
We may assume that collateral estoppel would be inapplicable here 
under that exception if Congress had amended 8 U.S.C. 1253(h), or 
if this Court had issued an intervening decision establishing 
that the Eleventh

Circuit's holding in <I>HRC ll</I> concerning the scope of Section 
<A NAME="backfn14">1253(h)</A> was erroneous.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fn.htm#fn14" HREF="b344fn.htm#fn14">(14)</A>  But here no change has been wrought in 
the legal principles on which the Eleventh Circuit relied in <I>HRC </I>
in sustaining the government's practices. All that has happened 
is that the President has modified those practices in certain 
respects by issuing the 1992 Executive Order. That Order 
necessarily assumes the correctness of the Eleventh Circuit's 
holding that Section 1253(h) is inapplicable to Haitian migrants 
interdicted on the high seas, and it therefore is in conformity 
with the "applicable legal context" that controlled the decision 
in <I>HRC II</I>. Moreover, a change in the defendants" own conduct 
manifestly does not constitute an "intervening change" in the 
controlling principles under which the legality of that conduct 
must be evaluated. It therefore does not fall within the 
exception on which the court below relied. See Pet. App. 49a-50a 
(Walker, J., dissenting); 18 C. Wright <I>et al</I>., <I>Federal Practice 
and Procedure</I> Sec. 4425, at 259 (1981); Restatement (Second) of 
Judgments Sec. 28(2)(b) and comment c (1982); see, <I>e.g.</I>, 
<A NAME="backfn15"><I><CITE>Commissioner</A> v. Sunnen</CITE></I>, 333 U.S. 591, 598-600 (1948).<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fn.htm#fn15" HREF="b344fn.htm#fn15">(15)</A> </P>

<P>In a related vein, the court of appeals adverted (Pet. App. 
12a) to this Court's observation that preclusion "may be 
inappropriate" in successive cases involving "unmixed questions 
of law," although the court of appeals omitted any mention of the 
further requirement that the successive cases be ones involving 
"substantially unrelated claims." <I>Montana</I>, 440 U.S. at 162-164; 
<I><CITE>United States v. Moser</CITE></I>, 266 U.S. 236, 242 (1924). The precise 
scope of this exception "may be difficult to delineate," but this 
case, like <I>Montana</I>, "poses no such conceptual difficulties." 440 
U.S. at 163. Because this suit was filed shortly after the 
judgment in <I>HRC II</I> became final and involves the same 
interdiction program, "the legal 'demands' of this litigation are 
closely aligned in time and subject matter to those in [<I>HRC</I>]." 
<I>Ibid.</I>, see also<I><CITE> United States v. Stauffer Chem. Co.</CITE></I>, 464 U.S. 
165, 172 (1984).</P>

<P>C. The court of appeals sought to bolster its refusal to 
apply collateral estoppel by expressing the view that the 
government had contravened "representations" made in its brief in 
opposition to the certiorari petition in <I>HRC</I>. Pet. App. 13a-14a. 
This reasoning is seriously flawed.
</P>
<P>1. The court's suggestion that the government acted in bad 
faith -- epitomized by its characterization of the government's 
conduct as "gamemanship of the rankest sort," Pet. App. 40a 
(Newman, J., concurring) is entirely unfounded. Although the 
brief in opposition in <I>HRC</I> described the government's 
then-current policy, it did not purport to guarantee that the 
policy would remain unchanged, and it would have been 
irresponsible to do so; in fact, the brief emphasized (at 8, 10, 
16) the need for the President to retain broad discretion to act 
without judicial interference. The May 1992 Executive Order was 
issued three full months after this Court denied certiorari in 
<I>HRC</I>, and it responded to a massive new wave of Haitian out 
migration and the resulting absence of available space

in the camps at Guantanamo. See pages 6-7, <I>supra</I>. The record thus 
refutes any suggestion that the government deliberately concealed 
an intention to change its policy in an effort to prevent review 
<A NAME="backfn16">by</A> this Court.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fn.htm#fn16" HREF="b344fn.htm#fn16">(16)</A> </P>

<P>2. As the court below recognized, "[a] discretionary denial 
of review * * * does not deprive a ruling of preclusive effect." 
Pet. App. 13a (citing Restatement (Second) of Judgments Sec. 28 
comment a). It follows that the contents of the government's 
brief opposing discretionary review by this Court of the Eleventh 
Circuit's judgment in <I>HRC lI</I> does not deprive that judgment of 
its binding effect. See Pet. App. 51a(Walker,J.,dissenting).
</P>
<P>The court of appeals apparently thought that it nevertheless 
was free to dispense with collateral estoppel in these 
circumstances on equitable grounds, for it elsewhere recited the 
proposition that issue preclusion may be inappropriate where "a 
new determination is warranted in order * * * to avoid 
inequitable administration of the laws." Pet. App. 11a (quoting 
Restatement (Second) of Judgments Sec. 28(2)(b), at 273). But that 
proposition does not give the courts free-roving power to 
dispense with collateral estoppel whenever they believe it would 
be "equitable" to do so. Rather, it applies where preclusion 
would be "inequitable" in the sense of subjecting 
similarly-situated parties to inconsistent legal regimes,<I><CITE> O'Leary 
v. Liberty Mut. Ins. Co.</CITE></I>, 923 F.2d 1062, 1069-1070 (3d Cir. 
1991); <I><CITE>Clark-Cowlitz Jt. Operating Agency v. FERC</CITE></I>, 826 F.2d 1074, 
1080 n.5 (D.C. Cir. 1987) (en banc); <I><CITE>Staten Island Rapid Transit 
Operating Auth. v. ICC</CITE></I>, 718 F.2d 533, 542 (2d Cir. 1983), and is 
therefore closely related to the

principle that intervening changes in controlling law may make 
issue preclusion inapplicable. See Restatement (Second) of 
Judgments's, Sec. 28 comment c, at 276-277; 1B J. Moore, <I>Federal 
Practice, supra</I>, &#182: 0.448, at 845, 848; see, <I>e.g., <CITE>Limbach v. 
Hooven & Allison Co.</CITE></I>, 466 U.S. 353, 362-363 (1984); <I>Sunnen,</I> 333 
U.S. at 699 (1983). Adherence to collateral estoppel produces no 
such in equity in this case, because <I>all </I>interdicted Haitian 
migrants continue to be bound by the <I>HRC ll </I>holding that 8 U.S.C. 
<A NAME="backfn17">1253(h)</A> is inapplicable on the high seas.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fn.htm#fn17" HREF="b344fn.htm#fn17">(17)</A> </P>

<P>3. A novel exception to established preclusion principles 
based on circumstances surrounding a denial of certiorari would 
be unsound in any event. This Court does not sit as a court of 
error; its essential function is to superintend the orderly 
development of federal law. See Sup. Ct. R. 10.1. Although the 
Court's certiorari decisions are undoubtedly influenced by 
additional factors, the primary focus is on the significance of 
the legal issues presented, rather than the importance of the 
case to a particular party. Thus, a change in circumstances that 
were not essential to the prior judgment is unlikely to have 
significantly affected this Court's decision to grant or deny 
certiorari. Moreover, an exception based on such considerations 
would plunge the lower courts into pure speculation and undermine 
the certainty and repose that preclusion principles are intended 
<A NAME="backfn18">to</A> promote.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fn.htm#fn18" HREF="b344fn.htm#fn18">(18)</A> </P>

<P>D. Consistent application of preclusion principles "is 
central to the purpose for which civil courts have been 
established," because it protects litigants "from the expense and 
vexation attending multiple lawsuits, conserves judicial 
resources, and fosters reliance on judicial action by minimizing 
the possibility of inconsistent decisions." <I>Montana</I>, 440 U.S. at 
153-154. The court of appeals ignored these considerations, 
explaining only that "[s]ince the dispositive question -- whether Sec. 
243(h) of the INA applies to conduct of the United States outside 
of our territorial waters -- is one purely of law, few judicial 
resources would be saved by collaterally estopping these 
plaintiffs from litigating this issue." Pet. App. 12a-13a. But 
the course of this litigation -- which has replicated the <I>HRC </I>
experience of a sequence of temporary restraining orders and 
preliminary injunctions, expedited briefings and hearings, and 
repeated stay applications to the court of appeals and this 
Court -- belies any notion that the "legal" character of the issues 
permits them to be resolved without significant adverse effect on 
the parties, the judicial system, and the national interest.</P>

<P>The United States prevailed in <I>HRC</I> after a full and fair 
hearing, and it was entitled to rely on that decision and avoid 
reinstatement of intrusive injunctions of the kind that the 
Eleventh Circuit set aside. Had the plaintiffs prevailed in <I>HRC 
II</I>, the government could hardly have escaped the preclusive 
effect of that judgment by

eliminating refugee screening and announcing that a new 
interdiction program was in effect. It is no more just or 
equitable to invoke that rationale to permit the plaintiffs to 
relitigate an issue previously resolved against them.
</P>
<BR>
<B>III.	<H5ALIGN=RIGHT>8 U.S.C. 1253(h) DOES NOT APPLY TO ALIENS OUTSIDE 
THE UNITED STATES</H5> 
</B>
<P>If the Court reaches the merits, it should reverse the court 
of appeals' holding that 8 U.S.C. 1263(h) prohibits 
implementation of the President's policy of repatriating 
interdicted Haitian migrants directly to Haiti. Section 1253(h) 
has no application to aliens outside the United States.
</P>
<P>Section 1253(h) must be construed in light of the "long-
standing principle of American law" that an Act of Congress is 
presumed "to apply only within the territorial jurisdiction of 
the United States" unless there is a "clearly expressed," 
"affirmative intention" by Congress to the contrary. <I><CITE>EEOC v. 
Arabian American Oil Co</CITE></I>., 111 S. Ct. 1227, 1230 (1991) (quoting 
<I><CITE>Foley Bros., Inc. v. Filardo</CITE></I>, 336 U.S. 281, 285 (1949), and <I><CITE>Benz 
v. Compania Naviera Hidalgo, S.A.</CITE></I>, 353 U.S. 138, 147 (1967)). 
That is especially so where, as here, it is contended that the 
Act confers a right on aliens outside the United States,<I> Arabian 
American Oil</I>, 111 S. Ct. at 1234; <I>Foley Bros.</I>, 336 U.S. at 
286 -- indeed, a right enforceable against the United States in 
United States courts. The presumption bars application of federal 
statutes to the high seas as well as foreign countries, for 
"[w]hen it desires to do so, Congress knows how to place the high 
seas within the jurisdictional reach of a statute." <I>Arabian 
American Oil,</I> 111 S. Ct. at 1235 (quoting<I><CITE> Argentine Republic v. 
Amerada Hess Shipping Corp.</CITE></I>, 488 U.S. 428, 440 (1989)). The 
requirement of a "clear statement" to that effect "assure[s] that 
the legislature has in fact faced, and intended to bring into 
issue, the critical matters involved" in extending the statute 
beyond our borders. <I><CITE>Astoria Fed. Sav. & Loan Ass'n v. Solimino</CITE></I>. 
111 S. Ct. 2166, 2170 (1991).</P>

<P>The presumption against extraterritoriality is powerfully 
reinforced here by the principle that statutes should be 
construed so as not to interfere with foreign policy, <I><CITE>Weinberger 
v. Rossi</CITE></I>, 456 U.S. 25, 31-32 (1982); <I><CITE>McCulloch v. Sociedad 
Nacional de Marineros de Honduras</CITE></I>, 372 U.S. 10, 19 (1963); <I>Benz</I>, 
363 U.S. at 147, or with the constitutional responsibilities and 
prerogatives of the President, <I>Franklin</I>, 112 S. Ct. at 2775-2776; 
<I><CITE>Public Citizen v. United States Dep't of Justice</CITE></I>, 491 U.S. 440, 
465-467 (1989); <I>Waterman Steamship Corp.</I>, 333 U.S. at 110-112. 
Furthermore, as this Court has repeatedly held, the power to 
exclude aliens, or to admit them on specified conditions, is 
"inherent in sovereignty, necessary for maintaining normal 
international relations and defending the country against foreign 
encroachments and dangers." <I><CITE>Kleindienst v. Mandel</CITE>,</I> 408 U.S. 753, 
766 (1972); see also <I><CITE>Landon v. Plasencia</CITE></I>, 459 U.S. 21, 33 (1982); 
<I><CITE>Fiallo v. Bell</CITE>,</I> 430 U.S. 787, 792 (1977);<I> Knauff</I>, 338 U.S. at 
642; <I><CITE>Fong Yue Ting v. United States</CITE></I>, 149 U.S. 698, 707-709 
(1893); <I><CITE>Nishimura Ekiu v. United States</CITE></I>, 142 U.S. 651, 669-660 
(1892). In the absence of a clear statement, an Act of Congress 
should not be construed to interfere with that fundamental 
attribute of sovereignty by barring measures undertaken by the 
President, pursuant to express statutory authorization, to 
prevent illegal entry of aliens.</P>

<P>In this case, there is no affirmative indication whatever -- much less a "clear statement" -- that Congress intended 8 U.S.C. 
1253(h) to apply to all actions of the U.S. Government outside 
the United States, and thereby to confer on aliens anywhere in 
the world who are attempting illegal entry into the United States 
a right to avoid repatriation. Nor is there any indication that 
Congress "faced" the "critical matters" that would be involved in 
conferring such a right on aliens outside the United States that 
can be enforced in U.S. courts against the Executive Branch 
officials responsible for the operation of military vessels on 
the high seas pursuant to orders of the President. To the 
contrary, the conclusion that Section

1253(h) applies only to aliens who are physically present in the 
United States is supported by (a) the text of Section 1253(h) and 
the structure of the INA as a whole; (b) the parallel scope of 
Article 33 of the U.N. Convention Relating to the Status of 
Refugees, as reflected in its text, negotiating history, 
ratification, implementation, and formal interpretations by the 
State Department; and (c) the legislative history of the 1980 
amendments to Section 1253(h).
</P>
<B><BLOCKQUOTE>A.	The Text Of Section 1253(h) And The Structure 
of The Act Establish That Section 1253(h) 
Does Not Apply To Aliens Outside The United 
States</BLOCKQUOTE></B>

<P>Nothing in the text of the INA supports the court of 
appeals' holding that 8 U.S.C. 1253(h) applies to actions of the 
Coast Guard or other Executive officials in carrying out the 
President's interdiction policy on the high seas.
</P>
<P>1. a. Paragraph (1) of Section 1253(h) provides:</P>

<BLOCKQUOTE>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.</BLOCKQUOTE>

<P>By its terms, this provision applies to actions of the Attorney 
General. That is not surprising, because Section 1253(h) is 
located in the part of the INA that is concerned with procedures 
for removing aliens from the United States (INA Part V, 8 U.S.C. 
1251-1260 - a matter for which the Attorney General is 
responsible. See 8 U.S.C. 1103; pages 35-36, <I>infra</I>. Neither 
Section 1253(h) nor any provision of Part V of the INA makes any 
mention of actions by the Coast Guard or any other agency that 
might encounter a potential refugee on the high seas or elsewhere 
outside the territory of the United States. Thus, even without 
regard to the presumption against extraterritoriality, the most 
natural reading of paragraph (1) of Section 1253(h) is that it 
bars the Attorney General

from sending an alien <I>from</I> the United States <I>to</I> a foreign country 
in the specified circumstances.
</P>
<P>b. Moreover, Section 1253(h) is triggered only "if the 
Attorney General determines" that the alien would be threatened 
with persecution. Cf. <I>Webster v. Doe</I>, 486 U.S. at 600. The 
Attorney General has made no such determination regarding Haitian 
interdictees who might be repatriated pursuant to the President's 
1992 Executive Order, because the President decided that 
determinations concerning Haitians who want to enter the United 
States as refugees will now be made at our Embassy in Haiti, 
pursuant to 8 U.S.C. 1167. That policy decision comports with the 
text of Section 1253(h) and with the overall statutory scheme (of 
which Section 1253(h) is a part) that Congress established in 
1980 to address refugee problems.</P>

<P>Section 1253(h) does not in itself either require the 
Attorney General to determine whether a particular alien would be 
subject to persecution in another country, or specify where or 
when such a determination must be made. Nor does it provide for 
the receipt of applications from aliens seeking relief. That is 
because other sections of the INA specify when and how such 
determinations must be made and those sections confirm that the 
determinations referenced in Section 1253(h) are to be made only 
with respect to aliens in the United States.</P>
<P>
The asylum provision of the INA, 8 U.S.C. 1158, specifically 
directs the Attorney General to "establish a procedure for <I>an 
alien physically present in the United States or at a land border 
or port of entry</I>, irrespective of such alien's status, to apply 
for asylum"; and it then provides that the Attorney General may, 
in his discretion, grant the alien asylum "if [he] determines" 
that the alien is a refugee within the meaning of the INA. 8 
U.S.C. 1158(a) (emphasis added). This Section of the INA thus 
addresses the subject of refugee status for those aliens who have 
reached our shores. Under implementing INS regulations, an asylum 
application is deemed also to constitute an application for 
withholding of deportation under

8 U.S.C. 1253(h), which, if granted, would bar the subsequent 
removal of the alien from the United States (either by 
deportation or exclusion) to a country in which he would be 
threatened with persecution. 8 C.F.R. 208.3(b), 208.16; see <I><CITE>INS 
v. Doherty</CITE></I>, 112 S. Ct. 719, 725 n.6 (1992); see also 8 U.S.C. 
1252(b) (requiring the Attorney General to adopt procedures 
necessary to determine deportability of aliens in the United 
States). But nothing in the INA or implementing regulations 
provides for receipt of applications for asylum or withholding of 
deportation from aliens <I>outside</I> the United States who claim to be 
refugees.</P>

<P>Measures regarding refugees outside the United States are 
instead governed by 8 U.S.C. 1157. The admission of refugees 
under that Section is committed to the discretion of the 
President, who -- after consultation with Congress, 8 U.S.C. 
1157(d) and (e), and considering the "foreign policy interests of 
the United States," 8 U.S.C. 1157(e)(6)C establishes the total 
number of refugees to be admitted annually and allocates that 
quota among refugees from various regions and categories. 8 
U.S.C. 1157(a). Within those allocations, the Attorney General 
then is authorized, in his discretion, to admit individual 
refugees who are determined to be "of special humanitarian 
concern to the United States." 8 U.S.C. 1157(c)(1). Implementing 
INS regulations provide for the filing of applications for 
admission with the overseas INS officer responsible for the 
geographic area in which the alien is located, 8 C.F.R. 207.1(a), 
207.3, and for waiting lists and priority handling to assure 
orderly processing. 8 C.F.R. 207.5.</P>

<P>In contrast to the asylum regime established under 8 U.S.C. 
1158 for aliens in the United States or at our borders, neither 8 
U.S.C. 1157 nor implementing regulations provides for treating an 
application for discretionary refugee admission under Section 
1157 as an application for withholding of deportation or return 
under Section 1253(h). That is because the <I>mandatory</I> relief 
afforded by Section 1253(h) is available only to aliens who are 
physically present in the United States. Congress made

refugee policy concerning aliens on the high seas and elsewhere 
outside the United States <I>discretionary</I> with the President under 
8 U.S.C. 1167. The court of appeals' holding that Section 1263(h) 
applies to Haitian interdictees on the high seas thus is 
inconsistent with the framework established by the INA for 
addressing refugee problems.
</P>
<P>c. The only textual basis the court of appeals cited for its 
contrary reading of Section 1253(h) was the reference in 
paragraph (1) to "any alien." In the court's view, that reference 
made it "plain" and "unambiguous" that Section 1263(h) applies to 
aliens outside the United States, because "aliens are aliens, 
regardless of where they are located." Pet. App. 16a; see also 
<I>id</I>. at 17a, 21a, 23a. The court's reasoning was both superficial 
and wrong. This Court made clear in <I>Foley Bros.</I> that such general 
references to the subject of the statute's regulation -- without 
any further provision expressly giving that regulation an 
extraterritorial reach -- do <I>not</I> overcome the presumption against 
extraterritoriality. Thus, in <I>Foley Bros</I>., the Court held that a 
statute requiring an eight-hour day provision in "[e]very 
contract made to which the United States * * * is a party" was 
inapplicable to contracts for work performed in a foreign 
country. 336 U.S. at 282. In light of the premise that Congress 
"is primarily concerned with domestic conditions," <I>Arabian 
American Oil</I>, 111 S. Ct. at 1230, the term "any alien" in 8 
U.S.C. 1263(h) (like the term "every contract" in the statute in 
<I>Foley</I>) must be understood to refer only to those in the United 
<A NAME="backfn19">States</A>.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fn.htm#fn19" HREF="b344fn.htm#fn19">(19)</A>  See also <I><CITE>Lujan v. Defenders of Wildlife</CITE></I>, 112 S. Ct. 
2130, 2160 n.4 (1992) (Stevens, J., concurring in the judgment) 
(Endangered Species Act's requirement that "[e]ach Federal 
agency" shall insure that "any action" it funds or carries out 
does not jeopardize "any" protected species "is

not sufficient to overcome the presumption against the 
<A NAME="backfn20">extraterritorial</A> application of statutes").<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fn.htm#fn20" HREF="b344fn.htm#fn20">(20)</A> 
</P>
<P>The court of appeals also found it significant that the INA 
defines "alien" to mean "any person not a citizen or national of 
the United States." See Pet. App. 16a (quoting 8 U.S.C. 
1101(a)(3)). That definition, however, merely identifies <I>who</I> is 
potentially covered by the INA; it does not specify <I>where</I> any 
particular provision of the INA applies. Moreover, the court of 
appeals' reliance on the statutory definition is foreclosed by 
<I>Arabian American Oil.</I> There, the Court held that the broad 
definitions of "employer," "commerce," and "industry affecting 
commerce" in 42 U.S.C. 2000e(b), (g) and (h) were insufficient to 
extend Title VII of the Civil Rights Act of 1964 beyond the 
territory of the United States. In so ruling, the Court 
reiterated its prior holdings that even where an Act of Congress 
has broad definitional or jurisdictional provisions, it must be 
interpreted to apply only to domestic conduct in the absence of 
"specific language" to the contrary, <I>McCulloch</I>, 372 U.S. at 19 --
<I>i.e.</I>, in the absence of "words which definitely disclose an 
intention to give it extraterritorial effect," <I><CITE>New York Central 
R.R. v. Chisholm</CITE></I>, 268 U.S. 29, 31 (1925). See 111 S. Ct. at 1232. 
The words "any alien" simply do not satisfy that standard. 
Neither the court of appeals nor respondents have identified any 
other "specific language" in paragraph (1) of

Section 1253(h) (or elsewhere in the INA) that "definititely 
disclose[s]" an intention to apply Section 1263(h) to aliens 
beyond our borders and, in particular, to limit the authority of 
the President to order repatriation of aliens interdicted on the 
<A NAME="backfn21">high</A> seas.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fn.htm#fn21" HREF="b344fn.htm#fn21">(21)</A></P>

<P>2. Paragraph (2) of Section 1263(h), which carves out 
exceptions to the prohibition in paragraph (1), confirms that 
Section 1253(h) applies only to aliens in the United States. Of 
particular relevance here, paragraph (2)(C) provides that 
withholding of deportation or return is not available to an 
"alien [who] has committed a serious nonpolitical crime outside 
the United States <I>prior to the arrival of the alien in the United 
States</I>" (emphasis added). This exception presupposes that the 
alien involved has arrived "in the United States." Two other 
exceptions

likewise refer to the "United States," expressing a determination 
to protect the "community of the United States" and "security of 
the United States" from the presence of undesirable aliens. See 8 
U.S.C. 1253(h)(2)(B) and (D) (Supp. II 1990). There is, by 
contrast, no mention in paragraph (2) (or paragraph (1)) of 
aliens beyond our borders. Compare <I>Arabian American Oil</I>, 111 S. 
Ct. at 1234 (similarly noting Title VII's mention of "states" but 
not foreign nations). Thus, Section 1253(h)'s "only geographic 
reference[s]," <I>Defenders of Wildlife</I>, 112 S. Ct. at 2150 
(Stevens, J., concurring in the judgment), confirm its domestic 
focus.</P>

<P>3. The interpretation of Section 1253(h) evident from its 
terms is also compelled by the statutory context in which it 
appears. Section 1253(h) is located in Part V of the INA, 8 
U.S.C. 1251-1260, which prescribes standards and procedures for 
expelling aliens from the United States. Section 1251, entitled 
"reportable aliens," identifies which aliens are subject to 
expulsion. It begins by stating that "[a]ny alien<I> in the United 
States</I> * * * shall, upon the order of the Attorney General, be 
deported," if he falls within any of a number of enumerated 
categories. 8 U.S.C. 1251(a) (emphasis added). Section 1252, 
entitled "Apprehension and deportation of aliens," then provides 
for arrest and detention of the alien; deportation proceedings 
before a special inquiry officer; a final order of deportation; 
and removal of the alien "from the United States" by the Attorney 
General. 8 U.S.C. 1252(a)-(c).</P>

<P>Section 1253, in turn, is entitled "Countries to which 
aliens shall be deported." Its inapplicability to aliens outside 
the United States is established by subsection (a), which states 
that "[t]he deportation of an alien <I>in the United States</I> * * * 
shall be directed by the Attorney General," either to a country 
designated by the alien that is willing to accept him or to 
another country. 8 U.S.C. 1253(a) (emphasis added); see <I>Doherty</I>, 
112 S. Ct. at 722. Subsection (h) of 8 U.S.C. 1253, at issue 
here, simply places a limitation on the countries (specified in

subsection (a)) to which the Attorney General may send an alien 
who is unlawfully "in the United States."</P>

<P>In sum, the text and structure of Part V of the INA as a 
whole (see<I><CITE> McCarthy v. Bronson</CITE></I>, 111 S. Ct. 1737, 1740 (1991)) 
refute the notion that Section 1253(h) confers a free-standing 
right upon aliens anywhere in the world. See also<I> HRC II</I>, Pet. 
App. 216a; <I><CITE>HRC v. Gracey</CITE></I>, 600 F. Supp. 1396, 1404 (D.D.C. 1986), 
aff'd on other grounds. 809 F.2d 794 (D.C. Cir. 1987).</P>

<BLOCKQUOTE><B>B.	The Limited Territorial Reach of Section 
1253(h) Is Confirmed By The Comparably 
Limited Reach Of Article 33 Of The United 
Natione Convention Relating to The Status 0f 
Refugees, After Which Section 1253(h) Was 
Patterned</B>
</BLOCKQUOTE>
<P>The limited territorial scope of Section 1253(h) is also 
supported by the parallel scope of Article 33 of the U.N. 
Convention Relating to the Status of Refugees. As this Court has 
noted, Section 1253(h) was revised by the Refugee Act of 1980, 
Pub. L. No. 99-912, Sec. 203(e), 94 Stat. 107, to conform its 
language to Article 33. See <I><CITE>INS v. Stevic</CITE></I>, 467 U.S. 407, 421 
(1984); <CITE><I>INS v. Cardoza-Fonseca</I></CITE>, 480 U.S. 421, 428-429, 436-437, 
440 n.25 (1987); H.R. Rep. No. 608, 96th Cong., 1st Sess. 18 
(1979); H.R. Con, Rep. No. 781, 96th Cong., 2d Sess. 20 (1980).
</P>
<P>In Section 2 of his May 1992 Executive Order, the President, 
in accordance with the considered opinions of the Attorney 
General and the Secretary of State (Pet. App. 30a-31a; see 
J.A.,), formally set forth his interpretation that the terms of 
Article 33 "do not extend to persons located outside the 
territory of the United States." This interpretation by the 
Executive is entitled to "great weight." <I><CITE>United States v. Stuart</CITE></I>, 
489 U.S. 353, 369 (1989); <I><CITE>Sumitomo Shoji America, Inc. v. 
Avagliano</CITE></I>, 457 U.S. 176, 184-185 (1982); <CITE><I>Kolovrat v. Oregon</I></CITE>, 366 
U.S. 187, 194 (1961). It also respects the fundamental right of 
the respective Contracting States -- inherent in their sovereignty 
and "[i]n accord with ancient principles of international law of 
nation states," <I>Kleindienst v.

Mandel</I>, 408 U.S. at 753 -- to exclude aliens. See also <I>Nishimura 
Ekiu</I>, 142 U.S. at 669-660; L. Oppenheim, <I>International Law </I>
675-676 (Lauterpacht 8th ed. 1955). Just as 8 U.S.C. 1253(h) 
should not be construed to dispense with that sovereign right on 
the part of the United States alone in the absence of the 
clearest expression of congressional intent (see page 28,<I> supra</I>), 
so too Article 33 of the U.N. Convention should not be construed 
to dispense with that sovereign right on the part of the 
Contracting States generally, in the absence of the clearest 
expression of agreement among them to do so. Cf. <I><CITE>Bowen v. Public 
Agencies Opposed to Social Secunty Entrapment</CITE></I>, 477 U.S. 41, 62-53 
(1986) (contracts construed to avoid foreclosing exercise of 
<A NAME="backfn22">sovereign</A> authority).<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fn.htm#fn22" HREF="b344fn.htm#fn22">(22)</A> </P>

<P>There is no evidence that the Contracting States agreed to 
extend Article 33 to the high seas and elsewhere throughout the 
<A NAME="backfn23">world</A>.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn23" HREF="b344fna.htm#fn23">(23)</A>  Indeed, the President's contrary interpretation is 
supported by: (1) the text of Article 33 and the Convention as a 
whole, (2) its negotiating history, (3) the United States' 
accession to the Convention, (4) Congress's understanding when it 
implemented Article 33

in 1980, and (5) subsequent international negotiations and the 
<A NAME="backfn24">Department</A> of State's construction of the Convention.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn24" HREF="b344fna.htm#fn24">(24)</A> 
</P>
<P>1. a. Article 33 contains no express statement or other 
affirmative indication that it was intended to impose obligations 
on a Contracting State outside its own territory. Paragraph 1 of 
Article 33 provides that "[n]o Contracting State shall expel or 
return ('refouler') a refugee in any manner whatsoever to the 
frontiers of a territory where his life or freedom would be 
threatened" on account of his political opinion. The most natural 
reading of this language is that it expresses an essentially 
unitary prohibition against removal of a refugee <I>from</I> the 
"Contracting State"<I> to</I> a foreign territory in the specified 
circumstances, irrespective of the manner in which the removal 
might be accomplished. The prohibition against "expelling" 
plainly has in mind a refugee who is within the territory of the 
Contracting State. The succeeding phase rounds out that 
prohibition by providing that a refugee is likewise not to be 
sent ("return[ed]") from the Contracting State to the foreign 
territory in any <I>other</I> "manner". This reading is consistent with 
the French word "refouler," which immediately follows (and 
defines) "return" in paragraph 1. Significantly, one meaning of 
"refouler" -- a

meaning specifically relevant to this case -- is "expel (aliens)." 
<I>Cassell's French Dictionary</I> 627 (1978). Under this meaning, 
"return ('refouler')," like "expel," connotes ejection of an 
alien from within the territory of the Contracting State.
</P>
<P>The court of appeals rejected this interpretation because it 
believed that it would render the term "return ('refouler')" 
redundant by effectively revising Article 33.1 to forbid a 
Contracting State to "expel or expel" an alien Pet. App. 29a. The 
court was wrong. Insertion of the French word "refouler" after 
"return" in the English text demonstrates that the latter is used 
as a term of art. Although its meaning is similar to that of 
"expel," the two terms are not identical. As the background and 
negotiating history of the Convention show (see pages 42-44, 
<I>infra</I>) and as the court of appeals in fact acknowledged (Pet. 
App. 29a)"expel" likewise is a term of art in this setting, 
referring to the formal process for removing an alien who was 
admitted to the country. See <I>ibid.</I> (discussing Article 32, which 
restricts the authority of Contracting States to "expel a refugee 
lawfully in their territory"). Refoulement, by contrast, connotes 
"summary reconduction" (mere physical relocation) of an 
individual. G. Goodwin-Gill, <I>The Refugee in International Law</I> 69 
(1983). Thus, as the court of appeals itself pointed out, 
refoulement is "to be <I>distinguished</I> from expulsion or 
deportation, the more formal process whereby a lawfully resident 
alien may be required to leave a state, or be forcibly ejected 
therefrom." Pet. App. 29a (quoting G. Goodwin-Gill,<I> supra</I>, at 69) 
(emphasis added).</P>

<P>By the court's own reasoning, then, "expel" and "return 
('refouler')" are<I> not</I> redundant under our interpretation of 
Article 33. Rather, they describe two different ways in which an 
alien might be physically removed from the Contracting State's 
territory, and they make clear that Article 33 (unlike, <I>e.g.</I>, 
Articles 26, 28, and 32) applies equally to individuals who have 
been lawfully admitted and those who are in the State's territory 
but not yet lawfully

admitted. By the same token, as the court of appeals also 
recognized (Pet. App. 29a), its interpretation of "return 
('refouler')" to include repatriation of an alien from anywhere 
in the world would render superfluous the prohibition against 
"expel[ling]" an alien to a foreign country where he is 
threatened with persecution, because the latter action would in 
any event be barred by the all-encompassing prohibition against 
<A NAME="backfn25">"return"</A> of the alien to such a country.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn25" HREF="b344fna.htm#fn25">(25)</A> </P>
<P>b. Our interpretation of paragraph 1 of Article 33 is 
confirmed by paragraph 2, which states that the benefit of 
Article 33 may not be claimed by a refugee who is a danger to the 
security of "the country in which he is." This

paragraph, which is the only territorial reference in the 
Article, contemplates that a refugee is covered only if he is 
"in" a "country" of refuge. Thus, read as a whole, Article 33 
applies only to a refugee who is within the territory of a 
Contracting State. See, <I>e.g., <CITE>Air France v. Saks</CITE></I>, 470 U.S. 392, 
397-400 (1985) (construing together the liability provisions of 
the Warsaw Convention).</P>

<P>c. The text and structure of the Convention as a whole lend 
further support to this interpretation. As the court of appeals 
acknowledged (Pet. App. 26a-27a), the premise that the Convention 
is limited to the territory of the Contracting State is woven 
throughout its provisions. See Arts. 4, 15,17.1, 18, 19.1, 21,23, 
<A NAME="backfn26">24</A>, 26, 27, 28, 31.1, 32.1.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn26" HREF="b344fna.htm#fn26">(26)</A>  Moreover, Article 40.1 (entitled 
"Territorial Application Clause") provides that a State may, at 
the time of signature, ratification, or accession, "declare that 
this Convention shall <I>extend</I> to all or any of the territories 
for the international relations of which it is responsible" 
(emphasis added). Accordingly, Article 40.1 indicates that a 
Contracting State's obligations under Article 33 do not 
automatically extend beyond its metropolitan territory even to 
its territories or possessions, much less to the high seas and 
throughout the entire world, as the court of appeals held. See 
<A NAME="backfn27">Pet.</A> App. 67a (Walker, J., dissenting).<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn27" HREF="b344fna.htm#fn27">(27)</A> </P>

<P>d. The court of appeals erroneously relied on language in 
Article 1.3 of the Protocol stating that the Protocol "shall be 
applied by the States Parties hereto without any geographic 
limitation." Pet. App. 28a (quoting 19 U.S.T. at 6225). As is 
evident from the remainder of the quoted sentence (which the 
court omitted), the "geographic limitation" to which Article 1.3 
of the Protocol refers is the one contained in the definition of 
the term "refugee" in Article 1 of the 1951 Convention, which 
permitted a Contracting Party either to limit its obligations to 
refugees from Europe, or to extend them to refugees from 
<A NAME="backfn28">elsewhere</A> as well.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn28" HREF="b344fna.htm#fn28">(28)</A>  It is, by contrast, Article 7.4 of the 
Protocol (which carries forward some features of Article 40 of 
the Convention) that addresses the "territorial" scope of the 
<A NAME="backfn29">Contracting</A> State's obligations.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn29" HREF="b344fna.htm#fn29">(29)</A> </P>


<P>2. Any lingering doubt on the extraterritoriality issue is 
dispelled by the official minutes of the Conference of 
Plenipotentiaries that adopted Article 33 in the form in which it 
was ratified. The Swiss delegate expressed the

view at one session of the Conference that "expel" "related to a 
refugee who had already been admitted to the territory of a 
country," while "return" related to "refugees who had already 
entered a country but were not yet resident there." Conference of 
Plenipotentiaries, <I>Summary Record of the 16th Meeting</I>, U.N. Doc. 
A/CONF. 2/SR.16, at 6 (July 11, 1951). The representatives of 
France, Belgium, Germany, Italy, the Netherlands, and Sweden 
agreed.<I> Id. </I>at 6, 11-12. At a subsequent session, the Dutch 
delegate reiterated the Swiss interpretation of "expulsion" and 
"'return' ('<I>refoulement</I>')," and he stated that based on his 
intervening conversations with other representatives as well, 
there appeared to be a "general consensus" in favor of it.<I> Id.</I>, 
<I>35th Meeting</I>, U.N. Doc. A/CONF.2/SR.35, at 21 (July 25, 1951). 
The Dutch delegate then asked to have the record show that the 
Conference was in agreement with this interpretation, "[i]n order 
to dispel any possible ambiguity" and to ensure that "mass 
migrations across frontiers or * * * attempted mass 
migrations" -- the precise context of this case are "not covered by 
article 33." <I>Ibid</I>. "There being no objection," the President of 
the Conference ordered that interpretation "placed on record." 
<I>Ibid</I>. The President further suggested that "refouler" be placed 
in brackets after"return" every place the latter word appears in 
the English text, and that suggestion was "adopted unanimously." 
<I>Id</I>. at 21-22.
</P>
<P>On this record, the word "refouler" in paragraph 1 of 
Article 33 can only be understood to embody a deliberate decision 
<A NAME="backfn30">by</A> the Contracting States (including the United States<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn30" HREF="b344fna.htm#fn30">(30)</A>) to 
incorporate the territorial limitation we urge into the text of 
the Convention. Pet. App. 63a-66a (Walker, J., dissenting); see 
also <I>Gracey</I>, 809 F.2d at 840 & nn. 132,

<A NAME="backfn31">133</A> (Edwards, J., concurring and dissenting).<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn31" HREF="b344fna.htm#fn31">(31)</A>  Commentators, 
including the former United Nations High Commissioner for 
Refugees, have read Article 33 in the same manner. See Aga Khan, 
<I>Legal Problems Relating to Refugees and Displaced Persons</I>, 149 
<A NAME="backfn32">Recueil</A> des Cours (Hague Academy of Int'l Law) 287, 318 (1976).<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn32" HREF="b344fna.htm#fn32">(32)</A> </P>




<P>3. The inapplicability of Article 33 to the repatriations 
challenged here is also reflected in the United States' 
ratification of the U.N. Protocol, by which this Nation agreed to 
be bound by Article 33 of the 1961 Convention. The United States 
became a party to the Protocol on the understanding that our 
existing immigration laws already provided the protections that 
Article 33 required, and that Article 33 therefore could be 
implemented through Section 1253(h) as it then existed. <I>Stevic</I>, 
467 U.S. at 417-418. That understanding, and the domestic focus 
of the Convention's provisions affording protections and rights 
to refugees, were reflected in the President's Letter of 
Transmittal to the Senate. The President stated that "most 
refugees <I>in this country</I> already enjoy the protection and rights 
which the Protocol seeks to secure for refugees <I>in all 
countries</I>," and that "[a]ccession to the Protocol would not 
impinge adversely upon established practices under existing laws 
<I>in the United States</I>." Exec. K, 90th Cong., 2d Sess. iii (1968) 
(emphasis added). The Secretary of State elaborated (<I>id.</I> at 
viii):
</P>
<BLOCKQUOTE>[F]oremost among the rights which the Protocol would 
guarantee to refugees is the prohibition (under Article 33 
of the Convention) against their expulsion or return to any 
country in which their life or freedom would be threatened. 
This article is comparable to Section 243(h) of the 
Immigration and Nationality Act, 8 U.S.C. 1254 [<I>sic</I>], and it 
can be implemented within

the administrative discretion provided by existing 
<A NAME="backfn33">regulations</A>.[<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn33" HREF="b344fna.htm#fn33">(33)</A>]
</BLOCKQUOTE>
<P>The Foreign Relations Committee expressed a similar view in 
<A NAME="backfn34">recommending</A> approval of the Protocol.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn34" HREF="b344fna.htm#fn34">(34)</A></P>
<P>
Significantly, when Article 33 was ratified on the basis of 
this understanding, Section 1253(h) expressly applied only to 
aliens "within the United States," 8 U.S.C. 1153(h)(1976); 
relying on that phrase, this Court had held that Section 1253(h) 
did not even apply to aliens who were physically present in the 
United States but subject to exclusion proceedings. See <I>Stevic</I>, 
467 U.S. at 415 (citing <I>Leng May Ma v. Barber</I>, 357 U.S. 185, 187 
(1958)); see also <I><CITE>INS v. Stanisic</CITE></I>, 395 U.S. 62, 71 (1969).<I>A 
fortiori</I>, Haitian migrants affected by the President's May 1992 
Executive Order, who are altogether outside the United States, 
enjoy no rights under Article 33 as it was ratified. See <I>Gracey</I>, 
<A NAME="backfn35">809</A> F.2d at 841 (Edwards, J., concurring and dissenting).<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn35" HREF="b344fna.htm#fn35">(35)</A> 
</P>
<P>4. The territorial limitation on application of Article 33 
was recognized not only at the time of the United States' 
accession to the Protocol, but also when Congress amended Section 
1253(h) as part of the Refugee Act of 1980. As noted above, 
Section 1253(h) was amended primarily to conform its language to 
that of Article 33 of the Convention, and thus to carry it into 
effect in U.S. Law. See page 36, <I>supra</I>. It therefore is 
significant that the legislative history of the 1980 Act shows 
that Congress understood the Convention to apply only to 
"refugees <I>within the territory of the contracting states</I>." H.R. 
<A NAME="backfn36">Rep.</A> No. 608,<I> supra</I>, at 17 (emphasis added).<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn36" HREF="b344fna.htm#fn36">(36)</A> </P>

<P>5. Subsequent events confirm that Article 33 applies only to 
aliens within the territory of the Contracting State.</P>
<P>a. This understanding is reflected first in international 
efforts, subsequent to the Protocol, to draft a convention on 
territorial asylum. Compare <I>Eastern Airlines</I>, 111 S. Ct. at 
1499-1600. Those efforts were preceded by the U.N. General 
Assembly's adoption of a non-binding Declaration on Territorial 
Asylum. Article 3(1) of that Declaration provided that no person 
who is entitled to seek and enjoy asylum from persecution "shall 
be subjected to measures such as rejection at the frontier or, if 
he has already entered the territory in which he seeks asylum, 
expulsion

or compulsory return to any State in which he may be subjected to 
persecution." G.A. Res. 2312, 22 U.N. GAOR Supp. (No. 16) at 31, 
U.N. Doc. A/6716 (1967). This text makes clear that the 
prohibition against expulsion and return, which was directly 
parallel to that in Article 33, was to apply only to aliens who 
had "already entered the territory" of the contracting State. It 
was well understood that the non-binding prohibition against 
rejection at the frontier went beyond Article 33 of the 
Convention. See Weis, 7 Can. Y.B. Int'l L. at 142; accord, 
Grahl-Madsen,<I> An International Convention on Territorial Asylum </I>
33 (2d ed. 1976).</P>

<P>In the mid-1970s, efforts were renewed to draft a convention 
on territorial asylum. Ultimately, a group of experts established 
by the General Assembly proposed a draft convention, Article 3 of 
which again rested on the same territorial premise. It stated: 
"No person entitled to the benefits of this Convention <I>who is in 
the territory of a contracting State</I> shall be subjected by such 
contracting State to measures such as <I>return or expulsion</I> which 
would compel him to return to a territory where his life or 
freedom would be threatened" (emphasis added). Article 3 further 
provided that a Contracting State shall use its "best endeavors" 
to ensure that no person will be rejected at its frontiers if 
there are well-founded reasons to believe that rejection would 
subject him to persecution. U.N. Group of Experts on the Draft 
Convention on Territorial Asylum, <I>Report and Consolidated Text of 
Articles</I>, at 16, 34, U.N. Doc. AIAC.174/M1SC.3/GE.75-6119 (June 
10, 1975) [<I>Experts' Report</I>]. Significantly, the initial proposal 
to reword this provision came from the United States, which took 
the position that "the principle of non-refoulement * * * should 
only apply to persons in the territory of a Contracting State." 
<A NAME="backfn37"><I>Id.</I></A> at 14.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn37" HREF="b344fna.htm#fn37">(37)</A> 
</P>
<P>b. The Secretary of State adopted the same position in the 
domestic context in a policy memorandum on asylum he transmitted 
to all federal agencies and published in the Federal Register in 
<A NAME="backfn38">January</A> 1972. See 37 Fed. Reg. 3447.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn38" HREF="b344fna.htm#fn38">(38)</A>  There, the Secretary 
explained that the United States' asylum policy was informed by 
the 1961 Convention, to which the United States had acceded by 
ratifying the U.N. Protocol, particularly "its explicit 
prohibition against the forcible return of refugees to conditions 
of persecution." <I>Ibid.</I> The Secretary explained that "[a]s a party 
to the Protocol, the United States has an international treaty 
obligation for its implementation<I> within areas subject to 
jurisdiction of the United States.</I>" <I>Ibid</I>. (emphasis added). The 
State Department took the same position in testimony before 
<A NAME="backfn39">Congress</A> in 1980.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn39" HREF="b344fna.htm#fn39">(39)</A>  And in 1989, in the specific context of the 
Haitian interdiction program, the Department formally 
communicated to Congress its view, based on the text of Article 
33, its negotiating history, and the practice of the 
international community, that Article 33 "extends only to persons 
who have gained entry into the territory of the Contracting 
State." <I>Haitian Detention and Interdiction: Hearing Before the 
Subcomm. on Immigration, Refugees, and International Law of the 
House Comm. on the Judiciary</I>,


101st Cong., 1st Sess. 36-43 (1989) (statement of Alan J. 
<A NAME="backfn40">Kreczko</A>, Deputy Legal Adviser, Dep't. of State).<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn40" HREF="b344fna.htm#fn40">(40)</A> 
</P>
<P>c. Later in 1989, the United States reaffirmed this position 
to the international community at a meeting of the Executive 
Committee of the U.N. High Commissioner for Refugees. At that 
meeting, the U.S. representative stated that Article 33 
"pertained only to persons already in the country and not to 
those who arrived at the frontier or who were travelling with the 
intention of entering the country but had not yet arrived at 
their destination." <I>Summary Record of the 442nd Meeting</I> at 16, 
U.N. Doc. A/AC.96/SR.442 (1989). No party to the Convention 
expressed disagreement. Similarly, notwithstanding the

controversy surrounding the United States' policy concerning 
Haitian migrants, no State questioned the United States' position 
at the most recent annual meeting of the Executive Committee in 
October of this year.</P>

<P>6. In sum, the President's interpretation of Article 33 as 
applying only to persons within the territory of the Contracting 
State finds compelling support in the text of Article 33, its 
negotiating history, its ratification by the United States in 
1968, its implementation by Congress in 1980, and the official 
interpretation by the State Department. By the same token, there 
is no basis on this historical record for the court of appeals' 
unseemly attempts to dismiss as a mere "litigating posture" (Pet. 
App. 31a, 32a) the interpretation of Article 33 formally adopted 
by the President on behalf of the United States as party to the 
Protocol and as a member of the international community.</P>

<BLOCKQUOTE><B>C.	The 1980 Amendments To Section 1253(h) Do Not Give It 
Extraterrtitorial Reach</B></BLOCKQUOTE>

<P>Despite the compelling support in the text of the INA and in 
Article 33 of the Convention for construing 8 U.S.C. 1253(h) in 
conformity with the presumption against extraterritoriality, the 
court of appeals held that the 1980 amendments to Section 1253(h) 
gave it a world-wide scope. The court noted that prior to 1980, 
Section 1253(h) provided that "[t]he Attorney General is 
authorized to withhold deportation of any alien within the United 
States" to a country in which the alien would be subject to 
persecution (see 8 U.S.C. 1253(h) (1976)), while the amended 
version provides that "[t]he Attorney General shall not deport or 
return any alien" to such a country. The court found it 
significant that the 1980 amendments bar "return" as well as 
deportation and omit the phrase "within the United States." See 
Pet. App. 15a, 19a, 20a For at least three reasons, the court of 
appeals read far too much into those changes.</P>

<P>1. This Court has twice recognized that the 1980 revisions 
of Section 1253(h) were merely clarifying amendments designed to 
conform its language to that of Article 33. <I>Stevic</I>, 467 U.S. at 
421; <I>Cardoza-Fonseca</I>, 480 U.S. at 436-437. The revisions on which 
the court of appeals relied are consistent with that modest 
purpose, because Article 33 also contains the phrase "or return" 
(albeit with the parenthetical modifier "refouler"), but nothing 
parallel to "within the United States." There is no reason to 
believe that Congress intended those changes to have the further 
effect of rendering Section 1253(h) world-wide in scope, because 
Congress understood in 1980 that the Protocol (and therefore 
Article 33 of the Convention) applies to "refugees within the 
territory of the contracting states." H.R. Rep. No. 608, <I>supra</I>, 
at 17.</P>

<P>2. Prior to the 1980 amendments, this Court had held that 
the benefits of Section 1253(h) were confined to aliens in 
deportation proceedings, and were not available to "excludable" 
aliens who were apprehended at the border and paroled into the 
United States. <I>Leng May Ma</I>, 357 U.S. at 187; accord, <I>Stanisic</I>, 
395 U.S. at 71. That holding rested on the Court's conclusion 
that such aliens were not among those "within the United States" 
in the "technical sense" in which that phrase was used in Section 
1253(h). <I>Stanisic</I>, 395 U.S. at 71; see <I>Leng May Ma</I>, 357 U.S. at 
<A NAME="backfn41">190</A>.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn41" HREF="b344fna.htm#fn41">(41)</A> </P>

<P>Against this background, if Congress wanted to extend the 
benefits of Section 1253(h) to aliens in exclusion proceedings, 
the most logical way to accomplish that result was to delete the 
phrase ("within the United States") upon which this Court had 
relied in holding that

such aliens were not covered by that Section. As Judge Walker 
pointed out, the legislative history of the 1980 amendments 
indicates that the revisions on which the court below relied were 
intended to do precisely that. See Pet. App. 68a (quoting H.R. 
Rep. No. 608, supra, at 30) (emphasis omitted) (changes "require 
* * * the Attorney General to withhold deportation of aliens who 
qualify as refugees and who are in exclusion as well as 
deportation proceedings"); accord, S. Rep. No. 256, <I>supra</I>, at 
<A NAME="backfn42">17.</A><A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn42" HREF="b344fna.htm#fn42">(42)</A>And as Judge Walker also pointed out, Pet. App. 69a, the 
addition of "return" serves to clarify that intent, because 
"deport," as used in Part V of the INA, does not as a "technical" 
matter encompass the removal of excludable aliens, <I>Leng May Ma</I>, 
357 U.S. at 187, while "return" does. Thus, at most, the 
amendments to 8 U.S.C. 1253(h) extended its coverage to aliens in 
exclusion proceedings. <I>Gracey</I>, 809 F.2d at 840-841 (Edwards, J., 
<A NAME="backfn43">concurring</A> and dissenting)<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn43" HREF="b344fna.htm#fn43">(43)</A> ; Note, 80 Colum. L. Rev. at 1131. By 
contrast, there is not the slightest suggestion in the 
Legislative history of the 1980 amendments that Section 1253(h) 
was also to apply to aliens beyond our borders. Surely, some 
mention would have been made if Congress had intended such a 
<A NAME="backfn44">dramatic</A> departure.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn44" HREF="b344fna.htm#fn44">(44)</A> </P>

<P>3. Finally, nothing in the text of Section 1253(h), even as 
amended, states that it applies outside the United States. At 
most, paragraph (1) is silent on the question. Under <I>Arabian 
American Oil</I> mere silence forecloses extraterritorial 
application, for only "specific language" to that effect vrill 
suffice. See 111 S. Ct. at 1231-1232.</P>

<P>What is more, the amended text of Section 1253(h), like the 
prior text, affirmatively demonstrates a domestic

focus. As Judge Walker pointed out, "Congress' decision in the 
1980 amendments to continue to address the provision to the 
'Attorney General' * * * indicates that [Section 1253(h)(1)] as 
amended was to be applied to * * * aliens over which the Attorney 
General had operational jurisdiction, and not to other refugees 
or potential refugees outside United States territory who might 
be encountered by other United States government personnel, be 
they Coast Guard, military, or the like." Pet. App. 59a-60a. 
Furthermore, although the 1980 amendments deleted the phrase 
"within the United States" from what is now paragraph (1) of 
Section 1253(h), they <I>added</I> no less than <I>four</I> references to the 
"United States" in the new paragraph (2) of Section 1253(h), 
which contains the various exceptions to the withholding 
requirement in paragraph (1). Exception (C) in paragraph (2) 
demonstrates that Section 1253(h) presupposes the alien's 
"arrival * * * in the United States," and exceptions (B) and (D) 
manifest a concern for the "community of the United States" and 
"security of the United States," respectively.</P>

<P>In short, the inference the court of appeals drew from the 
deletion of "within the United States" from paragraph (1) is more 
than offset by the addition of paragraph (2), and by the 
background and text of the amendments as a whole. The court of 
appeals' interpretation is also entirely implausible, for it 
ascribes to Congress the intent (without saying so) to use a 
two-word phrase buried in the body of Section 1253(h) -- "or 
return" -- to confer a free-standing right of non-repatriation on 
aliens throughout the world.</P>

<BR>
<B>Footnotes</B>
<BR>
<BR>
<A NAME="fn1"><P>1 .Several</A> days prior to the Proclamation, the United States had entered into an agreement with Haiti 
permitting U.S. officials to interdict and board Haitian flag vessels suspected of carrying illegal migrants. 
Agreement Effected by Exchange of Notes, U.S.-Republic of Haiti, Sept. 23, 1981, 33 U.S.T. 3559, 
T.I.A.S. No. 10,241 (J.A.	).<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344b.htm#backfn1" HREF="b344b.htm#backfn1">Return to text</A></P>
<A NAME="fn2"><P>2 .We</A> have been informed by the Coast Guard that an additional 1634 Haitian migrants were interdicted 
from June through October of this year, including 731 in October alone.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344b.htm#backfn2" HREF="b344b.htm#backfn2">Return to text</A></P>
<A NAME="fn3"><P>3 .The</A> United States acceded to Article 33.1 of the Convention by ratifying the U.N. Protocol Relating to 
the Status of Refugees, Jan. 31, 1967,19 U.S.T. 6223, T.l.A.S. No. 6577, 189 U.N.T.S. 150.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344b.htm#backfn3" HREF="b344b.htm#backfn3">Return to text</A></P>
<A NAME="fn4"><P>4 .The</A> government had continued the practice of paroling into the United States under 8 U.S.C. 
1182(d)(5) most Haitian migrants who made a sufficient threshold showing to be screened in. The INS 
decided, however, to reinterview at Guantanamo those interdictees who were tentatively screened in but 
found to have a communicable disease (most often the HIV virus) that rendered them excludable under 8 
U.S.C. 1182(a)(1)(A)(i) (Supp. II 1990). See Pet. App. 82a-83a, 147a; 92-528 Pet.6-8, 12-13 & n.13.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344b.htm#backfn4" HREF="b344b.htm#backfn4">Return to text</A></P>
<A NAME="fn5"><P>5 . Although</A> the 1992 Executive Order does not require screening of interdictees, it provides that "the 
Attorney General, in his unreviewable discretion, may decide that a person who is a refugee will not be 
returned without his consent." Sec. 2(c)(3). Under Coast Guard instructions, an interdictee will not be 
repatriated immediately to Haiti if the commanding officer believes that he would be in immediate and 
exceptionally grave physical danger. In that situation, the commanding officer is to provide temporary 
refuge and seek direction from higher authority. Leahy Decl. &#182; 12 (J.A. ).<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344b.htm#backfn5" HREF="b344b.htm#backfn5">Return to text</A></P>
<A NAME="fn6"><P>6 . For </A>the reasons stated in Point 11, <I>infra</I>, the Eleventh Circuit's holding in <I>HRC II</I> that the INA 
precludes judicial review pursuant to the APA, Pet. App. 214a-216a, binds respondents here under 
collateral estoppel principles. See Pet. 13 n.7.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344c.htm#backfn6" HREF="b344c.htm#backfn6">Return to text</A></P>
<A NAME="fn7"><P>7 . Even</A> where it applies, "[t]he presumption favoring judicial review of administrative action is just 
that -- a presumption." <I>Community Nutrition In.'t.</I>. 467 U.S. at 341. And although the Court has observed 
that the presumption may be overcome only upon a showing of "clear and convincing evidence," the Court 
has never applied that standard "in the strict evidentiary sense"; it is sufficient that "the congressional 
intent to preclude judicial review is 'fairly discernible in the statutory scheme.'"<I> Id. </I>at 350-351 (quoting 
<I><CITE>Data Processing Serv.  v. Camp</CITE></I>, 397 U.S. 150, 157 (1970)).<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344c.htm#backfn7" HREF="b344c.htm#backfn7">Return to text</A></P>
<A NAME="fn8"><P>8 .See</A> 8 U.S.C. 1226(a) (special inquiry officer has authority to determine whether an "arriving alien" 
who has been detained under 8 U.S.C. 1225 shall be allowed to enter or shall be excluded and deported); 8 
U.S.C. 1225(a) (referring to aliens "arriving at ports of the United States," "being brought into the United 
States," or "coming into the United States"); 8 U.S.C. 1225(b) ("port of arrival").<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344c.htm#backfn8" HREF="b344c.htm#backfn8">Return to text</A></P>
<A NAME="fn9"><P>9 .This</A> principle is reflected in the settled rule that visa decisions by U.S. consular officers are 
unreviewable. See <I>Tom We Shung</I>, 352 U.S. at 185 n.6; <I><CITE>Li Hing of Hong Kong, Inc. v. Levin</CITE></I>, 800 F.2d 
970, 971 (9th Cir. 1986); <I><CITE>Wan Shih Heieh v. Kiley</CITE>,</I> 569 F.2d 1179, 1181 (2d Cir.), cert. denied, 439 U.S. 
828 (1978); <I><CITE>Te Kuei Liu v. INS</CITE></I>, 645 F. Supp. 279, 285 (5th Cir. 1981); <I><CITE>Pena v. Kissinger</CITE></I>, 409 F. Supp. 
1182, 1185-1188 (S.D.N.Y. 1976). See also <I>HRC II</I>, Pet. App. 207a-209a (discussing <I><CITE>Cobb v. Murrell</CITE>,</I> 
386 F.2d 947 (5th Cir. 1967), and <I><CITE>Braude v. Wirtz</CITE></I>, 350 F.2d 702 (9th Cir. 1965)).<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344c.htm#backfn9" HREF="b344c.htm#backfn9">Return to text</A></P>
<A NAME="fn10"><P>10 . Aliens</A> beyond our borders likewise have no right to challenge those governmental actions in habeas 
corpus proceedings, <I><CITE>Johnson v. Eisentrager</CITE></I>, 339 U.S. 763, 771, 777-781, 790-701 (1950); cf. <I><CITE>United 
States v. Verdugo Urquidez</CITE></I>, 494 U.S. 259, 269, 271, 273-275 (1990), and indeed respondents have not 
sought habeas corpus relief.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344c.htm#backfn10" HREF="b344c.htm#backfn10">Return to text</A></P>
<A NAME="fn11"><P>11 . Similarly</A>, 8 U.S.C. 1185(a)(1) grants the President broad discretion to impose restrictions on aliens 
attempting to enter the United States, and 14 U.S.C. 89(a) authorizes the Coast Guard (which operates 
under the direction of the President) to interdict vessels on the high seas where violations of U.S. law are 
concerned and to take "appropriate" action after doing so.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344c.htm#backfn11" HREF="b344c.htm#backfn11">Return to text</A></P>

<A NAME="fn12"><P>12 .	 This</A> conclusion is supported by the complaint in <I>HRC</I>. Paragraph 32 of that complaint leads off 
its factual description of the "Interdiction Program" by stating "On September 29, 1981, the President 
issued Proclamation 4865, FR Doc. 81-28828, 46 Fed. Reg. 48107 ('the Proclamation'), which announced 
a program of 'interdiction: on the high seas of vessels transporting aliens.'" J.A. . The "United States 
Interdiction Program" mentioned in the class definition in paragraph 62(a) of the complaint (J.A. ) 
presumably refers to the "program of 'interdiction'" mentioned in paragraph 32 -- a program embodied in 
the Proclamation. Furthermore, paragraph 62(a) describes three separate element of class membership: it 
refers to all Haitian refugees (1) "who are currently detained or who in the future will be detained"; (2) 
"who were or will be interdicted on the high seas pursuant to the United States Interdiction Program"; 
and (3) "who are asserting violations of their * * * procedural rights." The "Interdiction Program" is 
mentioned only in the second of these elements, which is limited to the interdiction itself (<I>i.e.</I>, to the 
interception of vessels). The alleged violation of "procedural right" resulting from repatriation without 
screening occurs only <I>after</I> interdiction, and it is covered by a separate element of the class definition that 
does not refer to the "Interdiction Program." Accordingly, although respondents allege that elimination of 
screening constitutes a new type of post-interdiction "procedural violation," it does not constitute a new 
"Interdiction Program."<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344d.htm#backfn12" HREF="b344d.htm#backfn12">Return to text</A></P>

<A NAME="fn13"><P>13 .Ironically</A>, the only class certified thus far by the district court in the present case consists of Haitian 
migrants who were "screened in" under the policy that was in effect prior the May 1992 Executive Order. 
Pet. App. 162a. Even if the court of appeals were correct that the "United States Interdiction Program" 
referred to in <I>HRC</I> ended on May 24, all members of the certified class here were interdicted under that 
Program, and thus fall within the <I>HRC</I> class definition. See also Reply Br. Pet. Stage 6-7 n.4.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344d.htm#backfn13" HREF="b344d.htm#backfn13">Return to text</A></P>
<A NAME="fn14"><P>14 . Even</A> then, however, the proper course would be for respondents and other Haitians who are members 
of the <I>HRC</I> class to file a motion for relief from the judgment in <I>HRC</I> itself, on the ground that "it is no 
longer equitable that the judgment should have prospective application" in light of the intervening 
amendment or ruling, or that the new development constitutes a "reason justifying relief from the 
operation of the judgment." Fed. R. Civ. P. 60(b)(5)-(6); cf. <I><CITE>Rufo v. Inmates of Suffolk County Jail</CITE></I>, 112 S. 
Ct. 748, 762-763 (1992).<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344d.htm#backfn14" HREF="b344d.htm#backfn14">Return to text</A>
</P>
<A NAME="fn15"><P>15 .The</A> court of appeals did not suggest that the May 1992 Executive Order constituted a change in <I>facts</I> 
essential to the judgment in <I>HRC II</I> that would render collateral estoppel inapplicable. See <I>Montana</I>, 440 
U.S. at 159-160. In rejecting the <I>HRC</I> plaintiffs' claims under 8 U.S.C. 1253(h), the Eleventh Circuit did 
not rely on any determination as to the existence or adequacy of the refugee screening procedures then in 
place; it held that 8 U.S.C. 1253(h) is altogether inapplicable to aliens outside the United States. Pet. App. 
214a-216a; see Pet. App. 84a-85a (Walker, J., dissenting). Accordingly, a modification or elimination of 
screening procedures does not alter any of the facts on which the judgment in <I>HRC II</I> necessarily rested. 
Compare <I>Montana</I>, 440 U.S. at 158-162.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344d.htm#backfn15" HREF="b344d.htm#backfn15">Return to text</A></P>
<A NAME="fn16"><P>16 .Although</A> the brief in opposition discussed (at 2-3) the screening procedures, that was hardly the focus 
of the argument against certiorari. The brief explained (at 9, 13-14, 18-20) that the Eleventh Circuit was 
correct in holding that 8 U.S.C. 1253(h) does not apply to migrants encountered on the high seas and that 
there was no conflict among the courts of appeals, but it did not contend that the then-current screening 
policy made the case an inappropriate "vehicle" for this Court's consideration of the statutory issue.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344d.htm#backfn16" HREF="b344d.htm#backfn16">Return to text</A></P>
<A NAME="fn17"><P>17 .Nor</A> may federal courts decline to apply issue preclusion simply because the legal question is important 
or because the correctness of the prior decision is not free from doubt, as the majority below also 
suggested. Pet. App. 13a-14a; <I>id</I>. at 41a (Newman, J., concurring); see <I>McCurry</I>, 449 U.S. at 101; 18 C. 
Wright <I>et al.</I>, <I>supra</I>,Sec. 4426, at 265 ("If relitigation were permitted whenever it might result in a more 
accurate determination, in the name of 'justice,' the very values served by preclusion would be quickly 
destroyed.").<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344d.htm#backfn17" HREF="b344d.htm#backfn17">Return to text</A></P>
<A NAME="fn18"><P>18 .To</A> determine whether a change in circumstances involves facts essential to a prior judgment requires 
a relatively straightforward inquiry, based on a reading of the earlier court's opinion and an assessment of 
whether its analysis might have produced a different result if it had been applied to the facts in the second 
case. See <I>Montana</I>, 440 U.S. at 158-162. But because this Court does not typically explain its decisions to 
deny certiorari, there is no comparably reliable means of determining what factual alterations might have 
induced the Court to grant review. See <I><CITE>Singleton v. Commissioner</CITE></I>, 439 U.S. 940, 942-946 ( 1978) 
(Stevens, J., respecting the denial of certiorari). Moreover, an exception to collateral estoppel that attached 
significance to non-essential facts before the Court when certiorari was denied would encourage litigants 
to file meritless certiorari petitions in the hope of forestalling application of collateral estoppel in 
subsequent cases.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344d.htm#backfn18" HREF="b344d.htm#backfn18">Return to text</A></P>
<A NAME="fn19"><P>19 . Other</A> provisions of the INA likewise use the phrase "any alien," without any basis for including 
aliens outside the United States. See, e.g., 8 U.S.C. 1252(b) ("special inquiry officer shall conduct 
proceedings under this section to determine the deportability of any alien").<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344e.htm#backfn19" HREF="b344e.htm#backfn19">Return to text</A></P>
<A NAME="fn20"><P>20 .The</A> court of appeals stated that the presumption against extraterritorial application "has no relevance 
in the present context." Pet. App. 17a. The court reasoned that the presumption "is a canon of construction 
"'whereby <I>unexpressed</I> congressional intent may be ascertained,'" while here, in its view, Congress 
extended Section 1253(h) to the high seas by applying it to "any alien." <I>Ibid.</I> (quoting <I>Foley Bros.</I>, 336 
U.S. at 285) (emphasis added). The court of appeals got it backwards. The presumption is not irrelevant in 
this case; it is the starting point of analysis. The general reference to "any alien" plainly does not 
constitute the sort of specific expression of congressional intent that is necessary to overcome the 
presumption against extra-territoriality.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344e.htm#backfn20" HREF="b344e.htm#backfn20">Return to text</A></P>
<A NAME="fn21"><P>21 . After</A> concluding that Section 1253(h) applies to Haitian interdictees who have never arrived at our 
borders, the court of appeals held that repatriation of such interdictees without screening violates that 
Section's prohibition against "deport[ing] or return[ing]" an alien to a country where he is threatened with 
persecution. The court recognized that the word "deport" applies only to an alien who is already in the 
United States, Pet. App. 20a, but it believed that "return" covers the present situation because it means "to 
bring, send, or put (a person or thing) back to or in a former position." Pet. App. 22a (quoting <I>Webster's 
Third New International Dictionary</I> 1941 (1976)). The court's definition of "return" adds nothing to its 
conclusion, because that definition is also fully consistent with our interpretation: the Attorney General 
may not "send" an alien <I>from</I> the United States "back" to Haiti if he would be threatened with persecution 
there.
The court of appeals also found it significant that although the word "return" in Section 1253(h) is 
followed by the phrase "to a country [where he would be threatened with persecution]," Congress "made 
no mention of where the alien (who may be anywhere, within or without the United States) must be 
returned >from.'" Pet. App. 22a (brackets added by court). This reasoning, too, was seriously flawed. The 
phrase "to a country * * * " modifies "deport" as "well as "return," and "deport" indisputably refers to 
removal of an alien <I>from</I> the United States. In any event, such negative inferences are insufficient to 
overcome the presumption against extraterritoriality. <I>Arabian American Oil</I>, 111 S. Ct. at 1231-
1232,1233-1234.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344e.htm#backfn21" HREF="b344e.htm#backfn21">Return to text</A></P>
<A NAME="fn22"><P>22 .In</A> contrast to the U.N. Refugee Convention, agreements concerning refugee seamen obligate a 
contracting party to admit a refugee in certain circumstances. See Hague Agreement Relating to Refugee 
Seamen, Nov. 23, 1957, 506 U.N.T.S. 126; Hague Protocol Relating to Refugee Seamen, June 12, 1973, 
965 U.N.T.S. 445. Those agreements, which cross-reference the U.N. Refugee Convention and Protocol, 
are concerned with seamen who are not entitled to admission to the territory of any State other than a 
State where they have a well-founded fear of persecution. See 2 D.P. O'Connell, <I>The International Law of 
the Sea</I> 790-791 (1984).<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344e.htm#backfn22" HREF="b344e.htm#backfn22">Return to text</A></P>

<BR>
<BR>
<A NAME="fn23"><P>23 .Nations</A> have demonstrated that they know how to place the high seas within the reach of a treaty 
when they desire to do so. Compare<I> Arabian American Oil,</I> 111 S. Ct. at 1235 (quoting <I>Argentine 
Republic</I>, 488 U.S. at 440). See, <I>e.g.</I>, Geneva Convention on the High Seas, Apr. 29, 1958, [1962] 13 
U.S.T. 2312, T.I.A.S. No. 5200; U.N. Convention on the Law of the Sea, Dec. 10, 1982, 21 I.L.M. 1261. 
The U.N. Refugee Convention contains no comparable provisions that render Article 33 applicable to 
aliens encountered on the high seas.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344e.htm#backfn23" HREF="b344e.htm#backfn23">Return to text</A></P>
<A NAME="fn24"><P>24 . Even</A> if Article 33 did apply to aliens outside the United States, it would not afford them any privately 
enforceable rights. In its June 10 decision, the Second Circuit correctly recognized that the U.N. Protocol 
(including its incorporation of Article 33) is not judicially enforceable because the Protocol does not grant 
rights beyond those afforded by domestic law. See Pet. App. 11Oa n.13. This holding by the court below 
was consistent with its own prior rulings, see <I><CITE>Bertrand v. Sava</CITE></I>, 684 F2d 204, 218-219 (1982); <I><CITE>Chim Ming 
v. Marks</CITE></I>, 505 F.2d 1170, 1172 (1974), aff'g 367 F. Supp. 673, 677-679 (S.D.N.Y. 1973), as well as those 
of every other court of appeals that has considered the question, including the Eleventh Circuit in <I>HRC 
II</I>. See Pet. App. 173a; <I><CITE>United States v. Aguilar</CITE>,</I> 883 F.2d 662, 680 (9th Cir. 1989), cert. denied, 111 
S.Ct. 751 (1991); <I><CITE>Pierre v. United States</CITE></I>, 547 F.2d 1281, 1289 (5th Cir.), vacated on other grounds, 434 
U.S. 962 (1977); see also<I> Gracey</I>, 600 F. Supp. at 1401, 1406.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344e.htm#backfn24" HREF="b344e.htm#backfn24">Return to text</A></P>

<A NAME="fn25"><P>25 . The</A> court of appeals also cited respondents' reliance on other meanings of the French word "refouler," 
such as "drive back" or "repulse." Pet. App. 28a; see Resp. C.A. Br. 17 (citing M. Dubois, <I>Dictionnaire 
Larousse</I> 631 (1981)). Unlike the definition on which we rely ("expel (aliens)"), however, those 
definitions do not specifically relate to the subject of this case. In any event, the existence of several 
French definitions is fatal to the court's conclusion (Pet. App. 26a, 29a) that the "plain language" of 
Article 33.1 compels the interpretation it adopted and forecloses consideration of the negotiating history. 
See <I><CITE>Eastern Airlines, Inc. v. Floyd</CITE>,</I> 111 S. Ct. 1489, 1497-1499 (1991) (looking to negotiating history to 
ascertain meaning of French text).</P>

<P>Moreover, in quoting these alternative definitions below, respondents apparently intended to argue that 
the term "return ('refouler')" prohibits a contracting State from rejecting an alien who has arrived at its 
borders, while "expel" prohibits ejection of an alien from within its borders. There are at least three 
problems with this argument. First, it is inconsistent with respondents' primary argument (that the term 
"return" applies to the Contracting State wherever it may act), which would extend Article 33 far beyond 
rejection of those aliens who arrive at the State's own borders. Second, the negotiating history shows that 
the drafters specifically rejected respondents' alternative interpretation of "return," in order to ensure that 
Article 33.1 would not require a Contracting State to permit a mass influx of refugees across its borders. 
See pages 42-44, <I>infra. </I>Third, Article 33.1 would be inapplicable in this case even if "return ('refouler')" 
were interpreted to mean to "drive back" or "repulse" aliens from the Contracting State's borders, because 
the Haitian migrants interdicted off the coast of Haiti are not at the borders of the United States.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344e.htm#backfn25" HREF="b344e.htm#backfn25">Return to text</A></P>
<A NAME="fn26"><P>26 . See</A> also Art. l.F.b (emphasis added) (excluding from the Convention's protections any person with 
respect to whom there are serious reasons for considering that "he has committed a serious non-political 
crime outside the country of refuge <I>prior to his admission to that country as a refugee</I>"). Compare 8 U.S.C. 
1253(h)(2)(C), discussed at pages 34-35, <I>supra</I>.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344f.htm#backfn26" HREF="b344f.htm#backfn26">Return to text</A></P>
<A NAME="fn27"><P>27 .Paragraph</A> 2 of Article 40 permit a Contracting State to extend the Convention to other territories after 
it ratifies or accedes to the Convention, subject, where necessary, to the consent of the governments of 
those other territories; and paragraph 3 encourages Contracting States to do so. Numerous declarations of 
territorial application have been filed with the Secretary General of the U.N. under Article 40. See U.N., 
<I>Multilateral Treaties Deposited With the Secretary General: Status as of December 30, 1990</I>, at 210-211 
(1991).<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344f.htm#backfn27" HREF="b344f.htm#backfn27">Return to text</A></P>
<A NAME="fn28"><P>28 .The</A> Convention also limited the term "refugee" to persons who satisfied the definition as a result of 
events occurring before January 1, 1951. See Arts. I.A, I.B. Article 1.2 of the Protocol defines "refugee" to 
have the same meaning as under Article 1 of the Convention, but without the 1951 cut-off date. Article 
1.3 of the Protocol then provides that the Protocol shall be applied by States parties "without any 
geographic limitation. save that existing declarations made by States already Parties to the Convention in 
accordance with article lB(l)(a) of the Convention, shall, unless extended under article IB(2) thereof, 
apply also under the present Protocol." As a result of Article 1.3 of the Protocol, nations that were parties 
to the 1951 Convention could, when they ratified the Protocol, maintain any limitations they had 
previously declared on the geographic area-of-origin of the refugees to whom they assumed obligations; 
but nations that adhere to the Convention only by becoming parties to the Protocol may not limit their 
obligations in that manner.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344f.htm#backfn28" HREF="b344f.htm#backfn28">Return to text</A></P>
<A NAME="fn29"><P>29 .Article</A> 7.4 provides that declarations of territorial application made by a State pursuant to paragraphs 
1 and 2 of Article 40 of the Convention shall be deemed to apply to the Protocol as well, and that 
paragraghs 2 and 3 of Article 40 "shall be deemed to apply <I>mutatis mutandis</I> to the present Protocol."<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344f.htm#backfn29" HREF="b344f.htm#backfn29">Return to text</A></P>
<A NAME="fn30"><P>30 . The</A> United States' delegate was present at the July 11 and 25 sessions. U.N. Doc. A/CONF.2/SR.16, 
at 2; U.N. Doc. A/CONF. 2/SR.35, at 2.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344f.htm#backfn30" HREF="b344f.htm#backfn30">Return to text</A></P>
<A NAME="fn31"><P>31 .The</A> background of the Convention lends still further support to this conclusion, as explained in 
Nehemiah Robinson, <I>Convention Relating to the statute of Refugees: Its History, Contents, and Interpre-
tation</I> 160-163 (1953). As Robinson noted (at 162), an important study published by the United Nations in 
1949 as a prelude to the Convention had used the term "expulsion" to mean "the juridical decision taken 
by the judicial or administrative authorities whereby an individual is ordered to leave the territory of the 
country." U.N. Dep't of Social Affairs, <I>A Study of Statelessness</I> 60 (1949). By contrast, the <I>Study </I>had used 
the term "reconduction" (which it regarded as the equivalent of "refoulement") to mean "the mere physical 
act of ejecting from the national territory a person who has gained entry or is residing therein irregularly," 
and not "to signify the act of preventing a foreigner who has presented himself at the frontier from 
entering the national territory."<I> Id</I>. at 60 & n.1. Robinson, too, regarded "reconduction" to be "the 
equivalent of 'refoulement,'" and he noted that reconduction "was changed by the Ad Hoc Committee 
[on Statelessness, which prepared the first draft of the Convention,] to the word 'return.'" Robinson, <I>supra.</I> 
at 162; see <I>Report of the Ad Hoc Comm. on Statelessness and Related Problems</I>, U.N. Doc. E/AC.32/5, at 
7 (Draft Convention Art. 28) (Feb. 17, 1950). This background reinforces our submission that Article 33.1 
states what is essentially a unitary prohibition against a Contracting State's ejection of a refugee from its 
territory, whatever the means and whatever the legal status of the refugee. See pages 38-39, <I>supra</I>.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344f.htm#backfn31" HREF="b344f.htm#backfn31">Return to text</A></P>
<A NAME="fn32"><P>32 . See</A> also Robinson, <I>supra</I>, at 160-163; 2 A. Grahl-Madsen, <I>The Status of Refugees in International 
Law</I> 94 (1972); Hailbronner, <I>Non-Refoulement and "Humanitarian" Refugees: Customary International 
Law or Wishful Legal Thinking?</I>, 26 Va. J. Int'l L. 857, 861-62 (1986); Chooi Fong, <I>Some Legal Aspects 
of the Search for Admission Into Other States</I>, 1981 Brit. Y.B. Int'l L. 53, 69; Weis, <I>The United Nations 
Declaration on Territorial Asylum</I>, 7 Can. Y.B. Int'l L. 92, 123-124 (1969); Pugash, <I>The Dilemma of the 
Sea Refugee: Rescue Without Refuge</I>, 18 Harv. Int'l L. J. 577, 591 (1977); Note, <I>The Right of Asylum 
Under United States Law</I>, 80 Colum. L. Rev. 1125, 1126-1127 (1980).
Even Goodwin-Gill, who advocates that the principle of non-refoulement be given a broader scope that 
would include non-rejection at the frontier, acknowledges that the negotiating history of the 1951 
Convention is inconsistent with that view. See G. Goodwin-Gill, <I>supra</I>, at 74 ("At the 1951 Conference, 
no formal objection appears to have been raised to the Swiss interpretation of <I>non-refoulement</I>, limiting 
its application to those who have already entered state territory.");<I> ibid</I>. ("the fact remains that states were 
not prepared to include in the Convention any article on admission of refugees; <I>non-refoulement</I> in the 
sense of even a limited obligation to allow entry may well have been seen as coming too close to the 
unwished-for duty to grant asylum").<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344f.htm#backfn32" HREF="b344f.htm#backfn32">Return to text</A>
</P>
<A NAME="fn33"><P>33 . As</A> the Court explained in <I>Stevic</I> and <I>Cardoza-Fonseca</I>, although withholding of deportation under 
Section 1253(h) was then discretionary, INS could conform its decisions to Article 33 by exercising its 
discretion in favor of withholding where the standards in Article 33 were met. See 467 U.S. at 429 n.22; 
480 U.S. at 429.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344f.htm#backfn33" HREF="b344f.htm#backfn33">Return to text</A></P>
<A NAME="fn34"><P>34 .S.</A> Exec. Rep. No. 14, 90th Cong., 2d Sess. 2 (1968) ("It is understood that the protocol would not 
impinge adversely upon the Federal and State laws of this country."); see also 114 Cong. Rec. 29,391 
(1968) (Sen. Mansfield) (same); <I>id.</I> at 27,757 (Sen. Proxmire).<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344f.htm#backfn34" HREF="b344f.htm#backfn34">Return to text</A></P>
<A NAME="fn35"><P>35 .The</A> State Department witness who testified at the Senate hearing similarly described the Protocol as 
"a universal covenant designed to secure necessary protection <I>in asylum countries</I> for those fleeing from 
their homelands because of persecution, and also, importantly, those rights which are necessary to their 
re-establishment as self-supporting members of other societies." S. Exec. Rep. No. 14, <I>supra</I>, at 4; see also 
<I>ibid</I>. (emphasis added) ("refugees <I>in the United States</I> have long enjoyed the protection and the rights 
which the protocol calls for, on at least a basis equal to that which signatories to the protocol would 
undertake to implement for refugees <I>within their respective territories</I>");<I>id.</I> at 6 (accession to the Protocol 
"does not in any sense commit the Contracting State to enlarge its immigration measures for refugees"); 
<I>id</I>. at 10 ("there is nothing in this protocol which implies or puts any pressure on any contracting state to 
accept additional refugees as immigrants"); <I>id</I>. at 16 (noting that the United Kingdom had not filed a 
declaration under the "territorial clause" of the Convention (Article 40) making it applicable to refugees 
from China who were in Hong Kong);<I> id</I>. at 19 (it is "absolutely clear that "nothing in the protocol * * * 
requires the United States to admit new categories or numbers of aliens").<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344f.htm#backfn35" HREF="b344f.htm#backfn35">Return to text</A></P>
<A NAME="fn36"><P>36 .The</A> President's 1968 Letter of Transmittal and the Secretary of State's accompanying letter concerning 
the Protocol were made part of the record of the House Hearings on the Refugee Act. See <I>Refugee Act of 
1979: Hearings on H.R. 2816 Before the Subcomm. on Immigration, Refugees, and International Law of 
the House Comm. on the Judiciary</I>, 96th Cong., 1st Sess. 349-353 (1979) [1979 House Hearing]; see also 
<I>id</I>. at 335-349, 353-356 ("producing Convention and Protocol).<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344f.htm#backfn36" HREF="b344f.htm#backfn36">Return to text</A></P>
<A NAME="fn37"><P>37 . Compare</A> Proposal by the Expert of the United States, U.N. Doc. A/AC.174/Informal Working Paper 
No. 4 (Apr. 29, 1975), in <I>Documents of the U.N. Group of Experts on the Draft Convention on Territorial 
Asylum</I> 80 (1976), with <I>Experts' Report</I>, <I>supra</I>, at 110-112, 132; see also 1975 <I>Digest of the United States 
Practice in International Law</I> at 156-158.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344f.htm#backfn37" HREF="b344f.htm#backfn37">Return to text</A></P>

<A NAME="fn38"><P>38 .As</A> the administering agency, the views of the State Department are entitled to deference. The reasons 
for according deference to agency interpretations of domestic statutes have even greater force when it 
comes to interpretation of treaties, given the importance of addressing foreign policy issues with a single 
voice. <I>Curtiss-Wright</I>, 299 U.S. at 319.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344f.htm#backfn38" HREF="b344f.htm#backfn38">Return to text</A>  </P>
<A NAME="fn39"><P>39 .See</A><I> The Situation in Liberia, Spring 1980-Update: Hearing Before the Subcomm. on Africa of the 
House Comm. on Foreign Affairs</I>, 96th Cong., 2d Sess. 10 (1980) (testimony of William T. Lake, Deputy 
Legal Adviser, Dep't. of State) ("The obligation of a party to the Protocol * * * is not to return an 
applicant who presents his claim for asylum inside the territory of the United States.").<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344f.htm#backfn39" HREF="b344f.htm#backfn39">Return to text</A></P>

<A NAME="fn40"><P>40 .The</A> court of appeals relied on a 1981 opinion of the Office of Legal Counsel in which OLC concluded 
that the proposed interdiction of Haitian flag vessels would not violate the Convention and observed that 
"[i]ndividuals who claim that they will be persecuted * * * must be given an opportunity to substantiate 
their claims." 5 Op. Off. Legal Counsel 242, 248 (1981) (J.A. ); see Pet. App. 31a. The premise of this 
statement -- that Article 33 applies to aliens outside the territory of the United States -- was not accompanied 
by any analysis of the Convention's text and negotiating history or the formal pronouncements to the 
contrary by the State Department between 1972 and 1980. The failure of the OLC opinion to examine the 
premise that Article 33 applied on the high seas may perhaps have been due to the fact (which has just 
come to our attention) that the same premise was also assumed by some State Department personnel at the 
time -- likewise without analysis and, apparently, without awareness of the negotiating history and the State 
Department's own prior pronouncements to the contrary. In any event, this unexamined premise within 
the government was short-lived. In 1985, the United States, in<I> HRC v. Gracey, supra,</I> formally restated its 
prior public position that Article 33 does <I>not</I> apply to aliens outside the United States, relying on the 
negotiating history of the Convention, subsequent international negotiations, and other materials that 
confirm that reading. Furthermore, in opinions dated December 11 and 12, 1991, respectively, the 
Department of State's Legal Adviser and the Assistant Attorney Ceneral for OLC examined the issue at 
length and concluded that Article 33 does not apply in this setting. Pet. App. 31a; J.A., . The 1991 OLC 
opinion expressly reversed the conclusory statement in the 1981 OLC opinion relied upon by the court 
below.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344f.htm#backfn40" HREF="b344f.htm#backfn40">Return to text</A></P>
<A NAME="fn41"><P>41 . Accord</A>, <I><CITE>In re Pierre</CITE></I>, 14 I.& N. Dec. 467, 470 (1973), aff'd, 547 F.2d 1281 (5th Cir. 1977);<I><CITE> In re 
Cenatice</CITE></I>, 16 I.& N. Dec. 162, 164 (1977); see also <I>Plyler v. Doe</I>, 457 U.S. 202, 212-213 n.l2 (1982) 
(noting <I>Leng May Ma</I>'s holding that an alien paroled into the United States was not "within the United 
States" for purposes of Section 1253(h), which reflected the "longstanding distinction" between exclusion 
and deportation proceedings).<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344f.htm#backfn41" HREF="b344f.htm#backfn41">Return to text</A>
</P>
<A NAME="fn42"><P>42 . The</A> same understanding was expressed by witnesses for Amnesty International, U.S.A., during the 1979 hearings on version of the bill that contained the changes (addition of "return" and deletion of "within the United States") on which the court of appeals relied.  See <I>1979 House Hearings</I> 14-15 (section of bill amending 8 U.S.C. 1253 (h)).
 Although the witnesses urged the committee to revise the provision further to make withholding mandatory, they stated that "Amnesty does welcome the modest proposed change in section 243(h) which would remove the technical distinction presently advanced by the Immigration and Naturalization Service between deportation and exclusion of aliens." <I>Id.</I> at 169.  During hearings in 1977 on a predecessor bill containing similar revisions, the Commissioner of INS likewise understood their purpose to be to "make withholding of exclusion, as well as expulsion proceedings." See <I>Admission of Refugees into the United States: Hearings on H.R.3056 Before the Subcomm. On Immigration, Citizenship, and International Law of the House Comm. On the Judiciary</I>, 95th Cong. 1st Sess.81 (1977); <I>id.</I> at 12 (relevant section of bill); see also <I>id.</I> At 83, 84, 94.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344f.htm#backfn42" HREF="b344f.htm#backfn42">Return to text</A></P>

<A NAME="fn43"><P>43 . Judge</A> Edwards noted that Section 1253(h) is broader than Article 33 of the Convention insofar as it 
applies to exclusion proceedings. 809 F2d at 841. As Judge Edwards pointed out (<I>ibid</I>., note 136), in June 
1980, INS revised its regulations to implement the Refugee Act of 1980. Those regulations provided that 
after institution of exclusion or deportation proceedings against an alien, requests for asylum under 8 
U.S.C. 1158 must be filed with the immigration judge, and such requests "shall also be considered as 
requests for withholding exclusion or deportation pursuant to section 243(h) of the Act [8 U.S.C. 
1253(h)]." 45 Fed. Reg. 37,394 (1980) (adding 8 C.F.R. 208.3(b) (1981)). Current regulations likewise 
provide for withholding relief in exclusion as well as deportation proceedings. See 8 C.F.R. 236.3; see 
also <I>In re Rodriguez-Palma</I>, 17  I.& N. Dec. 465, 467 n.2 (1980) (because amended Section 1253(h) does 
not contain the phrase "within the United States," relief "is now available in both exclusion and 
deportation proceedings").<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344f.htm#backfn43" HREF="b344f.htm#backfn43">Return to text</A></P>
<A NAME="fn44"><P>44 .The</A> Conference Report, for example, refers to the amendments merely as providing for "withholding 
deportation," without even mentioning the word "return." See H.R. Conf. Rep. No. 781, <I>supra</I>, at 20. 
Similarly, although the section-by-section analysis of the bill in the House Report notes the extension of 
the provision to exclusion as well as deportation proceedings, the more general discussion of the bill refers 
only to "deportation." Compare H.R. Rep. No. 608, <I>supra</I>, at 20, with <I>id</I>. at 30. These shorthand 
descriptions reinforce the conclusion that Section 1253(h) was intended to apply only to aliens who are 
physically present in the United States. That was the interpretation given to Section 1253(h) in a 1980 
report prepared by the Congressional Research Service for the Senate Judiciary Committee soon after the 
1980 amendments. See Staff of 96th Cong., 2d Sess., <I>Review of U.S. Refugee Resettlement Programs and 
Policies</I> 15 (Comm. Print 1980) (Section 1253(h) "is applicable only to aliens who are in the United 
states").<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344f.htm#backfn44" HREF="b344f.htm#backfn44">Return to text</A></P>
<A NAME="fn45"><P>45 . The</A> question is not simply whether an injunction should have issued once the court of appeals 
construed 8 U.S.C. 1253(h) (and Article 33 of the U.N. Convention) to apply in this setting. The courts 
below should have held as a threshold matter that this is not an appropriate case for injunctive or other 
equitable relief and dismissed this suit, without even reaching the issue of the application of 8 U.S.C. 
1253(h) and Article 33. See <I><CITE>American Foreign Service Ass'n v. Garfinkel</CITE></I>, 490 U.S. 153, 161 (1989); see 
also <I>Webster v. Doe</I>, 486 U.S. at 604-605.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344g.htm#backfn45" HREF="b344g.htm#backfn45">Return to text</A></P>
<A NAME="fn46"><P>46 . Injunctive</A> relief restraining the operation of U.S. military vessels on the high seas is all the more 
inappropriate because it was sought by and granted to aliens who not only are outside the United States, 
but are nationals and residents of the foreign nation that is the very subject of the President's actions. The 
President, to whom the Constitution and Acts of Congress assign primary responsibility in this area, has 
assessed the overall situation and determined that the interests of the Haitian nationals concerned and 
other interests at stake are properly served by the policy he instituted on May 24, 1992: direct repatriation 
to Haiti, albeit with (i) an exception for interdictees who are threatened with immediate and grave 
physical danger (see note 5, <I>supra</I>), and (ii) provisions for the orderly processing of requests by Haitian 
nationals for admission to the United States as refugees under 8 U.S.C. 1157, vrhich Congress enacted in 
1980 specifically to govern the admission of refugees from outside the United States. It is not the role of a 
U.S. court to second-guess the adequacy of this admissions mechanism fashioned by Congress and the 
President, or to "balance" the interests of aliens abroad in circumventing that mechanism against other 
interests the court might deem relevant.

More than 15,000 Haitian nationals have availed themselves of the opportunity to file an application 
under 8 U.S.C. 1157 at the U.S. Embassy in Haiti. Although many residents of Haiti might choose to set 
out for the United States without prior approval under that Section,
nothing in the INA grants them a right to do so. And nothing in the record supports the notion that there 
is a threat of persecution to members of the respondent class of such pervasiveness and magnitude that it 
would render relief under Section 1157 meaningless or justify the sweeping injunctive relief ordered by 
the court of appeals (see also Reply Br. Pet. Stage 6-7 n.4 - even if we assume, arguendo, that the courts 
below could properly weigh the competing equities in this setting.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344g.htm#backfn46" HREF="b344g.htm#backfn46">Return to text</A></P>

<BR>
<P><B>IV.	EQUITABLE PRINCIPLES PRECLUDE THIS SUIT AND THE RELIEF 
RESPONDENTS SEEK</B></P>

<P>We have explained in Point I, <I>supra</I>, that respondents' 
judicial assault on the conduct of the interdiction program is 
precluded by the INA, which furnishes a right of judicial review 
only to aliens within the United States. But even if review is 
not statutorily foreclosed, the APA does not excuse courts from 
their duty "to dismiss any action or

deny relief on any other appropriate legal or equitable ground." 
6 U.S.C. 702(1). That provision was enacted in 1976, in response 
to recommendations by the Administrative Conference (H.R. Rep. 
No. 1666, 94th Cong., 2d Sess. 4 (1976); S. Rep. No. 996, 94th 
Cong., 2d Sess. 3 (1976)), to ensure that the APA's waiver of 
sovereign immunity does not allow courts to "decide issues about 
foreign affairs, military policy, and other subjects 
inappropriate for judicial action." See <I>Sovereign Immunity: 
Hearing Before the Subcomm. on Admin. Practice and Procedure of 
the Senate Comm. on the Judictary</I>, 91st Cong., 2d Sess. 136 
(1970) (report of Administrative Conference Committee on Judicial 
Review). The court of appeals' refusal to dismiss this suit in 
equity, and its decision instead to order injunctive relief, 
<A NAME="backfn45"> transgress</A> this fundamental limitation.<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn45" HREF="b344fna.htm#fn45">(45)</A></P>

<P>Since the President issued the new Executive Order on May 
24, 1992, the Haitian migrant crisis has largely dissipated. The 
injunctive relief ordered by the court of appeals, if allowed to 
stand, will recharge that crisis, with all of its attendant 
problems: loss of life; interference with the conduct of foreign 
policy, the operation of military vessels on the high seas, and 
the use of a U.S. military base on hostile foreign soil in Cuba; 
and diversion of the limited resources of the State Department, 
Navy, Coast Guard, and INS from the tasks to which they have been 
assigned by the President and Congress. It will also impede the 
flexibility the President requires to address the migrant problem 
within the broader context of the sensitive and fluid situation 
affecting Haiti generally,

which is the subject of ongoing diplomatic and economic measures. 
And it will undermine the ability of this Nation to speak with 
one voice, through the President, regarding the scope of the 
United States' obligations under Article 33 of the Convention, 
which the court of appeals, in the course of its opinion, has 
unilaterally extended to the high seas and throughout the world. 
Especially in the absence of an Act of Congress that purports to 
extend the equitable powers of federal courts into this sensitive 
area with far greater specificity than do the general judicial 
review provisions of the APA, "[t]he separation of powers 
problems present here make this virtually a textbook case for 
refusing such discretionary relief." <I><CITE>Ramirez de Arellano v. 
Weinberger</CITE></I>, 746 F.2d 1600, 1661 (D.C. Cir. 1984) (en banc) 
(Scalia, J., dissenting), vacated on other grounds, 471 U.S. 1113 
(1985); see also <I><CITE>Sanchez-Espinoza v. Reagan</CITE></I>, 770 F.2d 202, 208 
<A NAME="backfn46">(D.C.</A> Cir. 1986).<A W3MIRHREF="http://avalon.law.yale.edu/diana/b344fna.htm#fn46" HREF="b344fna.htm#fn46">(46)</A> 
</P>
<CENTER><B>CONCLUSION</B></CENTER>

<P>The judgment of the court of appeals should be reversed, and 
the case remanded to the district court with directions to 
dismiss the relevant portions of the complaint.</P> <P>Respectfully 
submitted.</P>

<PRE>EDWIN D. WILIAMSON
<I>Legal Adviser</I>

ALAN J. KRECZKO
<I>Deputy Legal
Adviser</I>

MICHELLE KLEIN SOLOMON
<I>Attorney</I>

KENNETH W. STARR
<I>Solicitor General</I>

STUART M. GERSON
<I>Assistant Attorney General</I>

MAUREEN E. MAHONEY
<I>Deputy Solicitor General</I>

PAUL T. CAPPUCCIO
<I>Associate Deputy Attorney General</I>

EDWIN S. KNEEDLER
<I>Assistant to the Solicitor General</I>

MICHAEL JAY SINGER 
MALCOLM L. STEWART
<I>Attorneys</I>

NOVEMBER 1992</PRE>

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