Immigration Consequences of Undocumented Aliens Arrival in United States Territorial Waters
| Decision Date | 13 October 1993 |
| Docket Number | 93-12 |
| Citation | 17 Op. O.L.C. 77 |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
| Parties | Immigration Consequences of Undocumented Aliens' Arrival in United States Territorial Waters |
WALTER DELLINGER Acting Assistant Attorney General Office of Legal Counsel.
Undocumented aliens interdicted within the twelve-mile zone that comprises the United States's tern-tonal sea are not entitled to a heanng under the exclusion provisions of the Immigration and Nationality Act
The Immigration and Naturalization Service had the authority to promulgate an interpretative rule construing the "territorial waters" of the United Stales, as referred to in section 287 of the 1NA, to extend for twelve nautical miles
MEMORANDUM OPINION FOR THE ATTORNEY GENERALThis memorandum responds to requests made by the Office of the Associate Attorney General and the General Counsel's Office of the Immigration and Naturalization Service ("INS") for our views on the consequences under the Immigration and Nationality Act ("INA") of an undocumented alien's arrival in United States territorial waters. 8 U.S.C. §§ 1101-1537. Specifically, we have been asked whether undocumented aliens who have been interdicted within the United States's territorial waters are entitled to an exclusion hearing under section 236 of the INA, [1] 8 U.S.C. § 1226. We have also been asked to review the INS's enforcement authority under INA section 287, 8 U.S.C. § 1357, and to assess the INS's recent interpretive regulation, 8 C.F.R. § 287.1(a)(1) (1993), insofar as it purports to define the "external boundaries" of the United States under INA section 287.
We understand that resolution of these issues is of some urgency because the United States has been interdicting, within its territorial waters, vessels transporting large numbers of undocumented aliens seeking admission into the United States from various foreign countries. These activities have raised the question whether the United States must provide exclusion proceedings for such aliens. Agencies represented on the Working Group on Ocean Policy and the Law of the Sea, in particular the State Department and the United States Coast Guard, have expressed an interest in the issues. We have therefore invited, and received, the views of the State Department and the Coast Guard. [ 78]
I. Background
The background to these requests is as follows. Historically, the United States adhered to the rule that the territorial sea extends three nautical miles out.[2] In 1988, however, President Reagan, by proclamation, extended the United States's territorial sea to a distance of twelve nautical miles. See Proclamation No. 5928, 3 C.F.R. 547 (1989) reprinted in 103 Stat. 2981 (1989), ("the Proclamation").[3]Although the Proclamation by its terms purported not to extend or otherwise alter existing Federal law or any jurisdiction, rights, legal interests, or obligations derived therefrom, questions arose concerning the possible or alleged effects of the Proclamation on domestic law or law enforcement.[4] Among these questions are the two considered in this opinion, relating to the procedural rights under the INA of undocumented aliens intercepted within twelve miles of the United States's shores, and to the authority of the INS to board and search sea vessels suspected of transporting undocumented aliens if such vessels are found within that twelve mile zone.
The INS's former General Counsel has taken the position that the Proclamation operated so as to extend the scope of the INA to the new twelve mile limit of the territorial waters. Specifically, the INS argues in the submissions considered here that an entitlement to an exclusion proceeding now arises whenever an undocumented alien arrives within the twelve mile limit. As the INS acknowledges, however, its past practice and views on this subject have not been consistent. In 1980, an INS memorandum to this Office concerning the treatment of Cuban refugees maintained that an alien apprehended within the territorial waters before landing "does not appear to have a right to apply for asylum" under the Refugee Act of 1980, Pub. L. No 96-212, 94 Stat. 102 ("Refugee Act"), and could be towed to a third country where he or she would not face persecution. See Memorandum for John Harmon Assistant Attorney General, Office of Legal Counsel, from David Crosland, Acting Commissioner, INS, Re: Cases on Illegal Entry to Cubans in Boats at 1 (May 6, 1980) ("INS Cuba Memorandum"). However, a different INS position is reflected in a 1986 memorandum concerning procedures to be followed under Executive No. 12324, 46 Fed Reg. 48, 109 (1981), which provided for the return of Haitians interdicted on the high seas, with the exception of refugees. See Memorandum for Alan C. Nelson Commissioner, INS, from Maurice C. [ 79] Inman, Jr., General Counsel, INS, Re: Interdiction of Aliens (Feb. 21, 1986) ("INS Haiti Memorandum"). Executive Order No. 12324 stated that its provisions for the interdiction-and-return of Haitians "are authorized to be undertaken only outside the territorial waters of the United States." 46 Fed. Reg. at 48, 109. Following the terms of that Executive Order, the INS memorandum stated that "[individuals interdicted within the territorial waters of the United States are transported to a port of the United States for an adjudication of their immigration status pursuant to the Immigration and Nationality Act." INS Haiti Memorandum at 3. The memorandum further asserted that "it is rather well settled that individuals within our territorial waters may not be forcibly removed to the high seas." Id. at 4.[5] Thus, the INS's current position is at variance with its views as of 1980 - though not with its views as of 1986 - as well as being inconsistent with the position of the State Department and the Coast Guard.[6]
We conclude in Part II below that an undocumented alien who is intercepted within the twelve mile zone now comprising the United States's territorial waters is not entitled to an exclusion hearing under the INA. We base this conclusion primarily on an examination of the text of the statute - most importantly, its explicit requirements for exclusion proceedings. See INA sections 235, 236, 8 U.S.C. §§ 1225, 1226. We also examine the statute's provisions for asylum and withholding of deportation, and conclude that these provisions are consistent with, and indeed support, our reading of the statutory sections regarding exclusion. See Refugee Act, §§ 201(b), 202(e), 94 Stat, at 105, 107 (). We then consider the INA's definition of the term "United States, " INA section 101(a)(38), 8 U.S.C. § 1101(a)(38), and reject INS's contention that this definition, coupled with the Proclamation, compels the conclusion that the INA's procedural protections must apply to undocumented aliens who have entered the twelve mile zone. We also consider, and reject, INS's alternative claim that the jurisdictional section of the Outer Continental Shelf Lands Act, 43 U.S.C. § 1333, ("OCSLA") operates to extend the INA - and in particular the right to an exclusion hearing - to the limit of the territorial waters. Finally, we scrutinize the Proclamation itself, and conclude that it has no effect on the procedural entitlement that the INA provides to undocumented aliens. [ 80]
In Part III below, we review the INS interpretative regulation, 8 C.F.R. § 287 (1993), that purports to construe the meaning of the "external boundaries" of the United States, as that term is used in INA section 287, 8 U.S.C. § 1357. The latter statute sets forth various investigative and enforcement powers of the INS. Of particular relevance, it empowers the INS to conduct certain warrant less searches within "a reasonable distance from any external boundary of the United States." INA section 287(a)(3), 8 U.S.C. § 1357(a)(3). We conclude that the INS had the authority to construe that section in a manner that reflected the enlargement of the United States's territorial waters under the Proclamation, and we offer two theories to justify that result. We also note an ambiguity in the INS's regulation, and recommend that, if INS decides to maintain its interpretation of INA section 287, it cure this defect.
II.
"It is undoubtedly within the power of the Federal Government to exclude aliens from the country." Almeida-Sanchez v. United States, 413 U.S. 266, 272 (1973); see also London v. Plasencia, 459 U.S. 21, 32 (1982); Kleindienst v. Mandel, 408 U.S. 753, 765-66 (1972); 1 Charles Gordon and Stanley Mailman, Immigration Law and Procedure, § 1.03[2][a] (rev. ed. 1993) ("Gordon & Mailman").
The means by which the Federal Government may prevent aliens from coming into the country are varied. Some aliens seeking to enter the United States must first be accorded the procedural rights provided by the INA, including an evidentiary hearing before any determination to exclude them from this country can be made. Other aliens may, however, be prevented from entering the United States by Executive actions that do not implicate any INA procedures. Thus, in its recent decision in Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 187 (1993), the Supreme Court held that neither the INA nor the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577 ("the Protocol"), placed any limit "on the President's authority to repatriate aliens interdicted beyond the territorial seas of the United States."[7] The question presented here is whether undocumented aliens seeking to enter the United States but interdicted within its territorial waters - that...
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