509 U.S. 155 (1993), 92-344, Sale v. Haitian Centers Council, Inc.

Docket Nº:No. 92-344
Citation:509 U.S. 155, 113 S.Ct. 2549, 125 L.Ed.2d 128, 61 U.S.L.W. 4684
Case Date:June 21, 1993
Court:United States Supreme Court

Page 155

509 U.S. 155 (1993)

113 S.Ct. 2549, 125 L.Ed.2d 128, 61 U.S.L.W. 4684




No. 92-344

United States Supreme Court

June 21, 1993

Argued March 2, 1993



An Executive Order directs the Coast Guard to intercept vessels illegally transporting passengers from Haiti to the United States and to return those passengers to Haiti without first determining whether they qualify as refugees, but “authorize[s] [such forced repatriation] to be under-taken only beyond the territorial sea of the United States.” Respondents, organizations representing interdicted Haitians and a number of Haitians, sought a temporary restraining order, contending that the Executive Order violates § 243(h)(1) of the Immigration and Nationality Act of 1952 (INA or Act) and Article 33 of the United Nations Convention Relating to the Status of Refugees. The District Court denied relief, concluding that § 243(h)(1) does not protect aliens in international waters and that the Convention’s provisions are not self-executing. In reversing, the Court of Appeals held, inter alia, that § 243(h)(1) does not apply only to aliens within the United States and that Article 33, like the statute, covers all refugees, regardless of location.


Neither § 243(h) nor Article 33 limits the President’s power to order the Coast Guard to repatriate undocumented aliens intercepted on the high seas. Pp. 170–188.

(a) The INA’s text and structure demonstrate that § 243(h)(1)—which provides that “[t]he Attorney General shall not deport or return any alien . . . to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country . . .”—applies only in the context of the domestic procedures by which the Attorney General determines whether deportable and excludable aliens may remain in the United States. In the light of other INA provisions that expressly confer upon the President and other officials certain responsibilities under the immigration laws, § 243(h)(1)’s reference to the Attorney General cannot reasonably be construed to describe either the President or the Coast Guard. Moreover, the reference suggests that the section applies only to the Attorney General’s normal responsibilities under the INA, particularly her conduct of deportation and exclusion hearings in which requests for asylum or for withholding of deportation under § 243(h) are ordinarily advanced. Since the INA nowhere provides

Page 156

for the conduct of such proceedings outside the United States, since Part V of the Act, in which § 243 is located, obviously contemplates that they be held in this country, and since it is presumed that Acts of Congress do not ordinarily apply outside the borders, see, e. g., EEOC v. Arabian American Oil Co., 499 U.S. 244, § 243(h)(1) must be construed to apply only within United States territory. That the word “return” in § 243(h)(1) is not limited to aliens in this country does not render the section applicable extraterritorially, since it must reasonably be concluded that Congress used the phrase “deport or return” only to make the section’s protection available both in proceedings to deport aliens already in the country and proceedings to exclude those already at the border. Pp. 171–174.

(b) The history of the Refugee Act of 1980—which amended § 243(h)(1) by adding the phrase “or return” and deleting the phrase “within the United States” following “any alien”—confirms that § 243(h) does not have extraterritorial application. The foregoing are the only relevant changes made by the 1980 amendment, and they are fully explained by the intent, plainly identified in the legislative history, to apply § 243(h) to exclusion as well as to deportation proceedings. There is no change in the 1980 amendment, however, that could only be explained by an assumption that Congress also intended to provide for the statute’s extraterritorial application. It would have been extraordinary for Congress to make such an important change in the law without any mention of that possible effect. Pp. 174–177.

(c) Article 33’s text—which provides that “[n]o . . . State shall expel or return (‘refouler’) a refugee . . . to . . . territories where his life or freedom would be threatened . . .,” Article 33.1, and that “[t]he benefit of the present provision may not . . . be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is [located],” Article 33.2—affirmatively indicates that it was not intended to have extraterritorial effect. First, if Article 33.1 applied on the high seas, Article 33.2 would create an absurd anomaly: Dangerous aliens in extraterritorial waters would be entitled to 33.1’s benefits because they would not be in any “country” under 33.2, while dangerous aliens residing in the country that sought to expel them would not be so entitled. It is more reasonable to assume that 33.2’s coverage was limited to those already in the country because it was understood that 33.1 obligated the signatory state only with respect to aliens within its territory. Second, Article 33.1’s use of the words “expel or return” as an obvious parallel to the words “deport or return” in § 243(h)(1) suggests that “return” in 33.1 refers to exclusion proceedings, see Leng May Ma v. Barber, 357 U.S. 185, 187, and therefore has a legal meaning narrower than its common meaning. This suggestion is reinforced by the parenthetical reference to the French word “refouler,”

Page 157

which is not an exact synonym for the English word “return,” but has been interpreted by respected dictionaries to mean, among other things, “expel.” Although gathering fleeing refugees and returning them to the one country they had desperately sought to escape may violate the spirit of Article 33, general humanitarian intent cannot impose uncontemplated obligations on treaty signatories. Pp. 179–183.

(d) Although not dispositive, the Convention’s negotiating history— which indicates, inter alia, that the right of non-refoulement applies only to aliens physically present in the host country, that the term “refouler” was included in Article 33 to avoid concern about an inappropriately broad reading of the word “return,” and that the Convention’s limited reach resulted from a hard-fought bargain—solidly supports the foregoing conclusion. Pp. 184–187.

969 F.2d 1350, reversed.

Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O'Connor, Scalia, Kennedy, Souter, and Thomas, JJ., joined. Blackmun, J., filed a dissenting opinion, post, p. 188.

Deputy Solicitor General Mahoney argued the cause for petitioners. With her on the briefs were Solicitor General Starr, Assistant Attorney General Gerson, Paul T. Cappuccio, Edwin S. Kneedler, Michael Jay Singer, and Edwin D. Williamson.

Harold Hongju Koh argued the cause for respondents. With him on the brief were Drew S. Days III, Geoffrey C. Hazard, Jr., Paul W. Kahn, Michael Ratner, Cyrus R. Vance, Joseph Tringali, Lucas Guttentag, Judy Rabinovitz, and Robert Rubin.[*]

Page 158

Justice Stevens delivered the opinion of the Court.

The President has directed the Coast Guard to intercept vessels illegally transporting passengers from Haiti to the United States and to return those passengers to Haiti without first determining whether they may qualify as refugees. The question presented in this case is whether such forced repatriation, “authorized to be undertaken only beyond the territorial sea of the United States,”[1 ] violates § 243(h)(1) of the Immigration and Nationality Act of 1952 (INA or Act).[2]

Page 159

We hold that neither § 243(h) nor Article 33 of the United Nations Protocol Relating to the Status of Refugees[3] applies to action taken by the Coast Guard on the high seas.


Aliens residing illegally in the United States are subject to deportation after a formal hearing.[4] Aliens arriving at the border, or those who are temporarily paroled into the country, are subject to an exclusion hearing, the less formal process by which they, too, may eventually be removed from the United States.[5] In either a deportation or exclusion proceeding the alien may seek asylum as a political refugee for whom removal to a particular country may threaten his life or freedom. Requests that the Attorney General grant asylum or withhold deportation to a particular country are typically, but not necessarily, advanced as parallel claims in either a deportation or an exclusion proceeding.[6] When an alien proves that he is a “refugee,” the Attorney General has discretion to grant him asylum pursuant to § 208 of the Act. If the proof shows that it is more likely than not that the alien’s life or freedom would be threatened in a particular country because of his political or religious beliefs, under § 243(h) the Attorney General must not send him to that

Page 160

country.[7] The INA offers these statutory protections only to aliens who reside in or have arrived at the border of the United States. For 12 years, in one form or another, the interdiction program challenged here has prevented Haitians such as respondents from reaching our shores and invoking those protections.

On September 23, 1981, the United States and the Republic of Haiti entered into an agreement authorizing the United States Coast Guard to intercept vessels engaged in the illegal transportation of undocumented aliens to our shores. While the parties agreed to prosecute “illegal traffickers,” the Haitian Government also guaranteed that its repatriated citizens would not be punished for their illegal departure.[8] The agreement also established that the United States Government would not return any passengerswhom the...

To continue reading