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Aliens—interdiction of Haitians on high seas—definition of “return“ under U.S. statute—extraterritorial effect of statute

Published online by Cambridge University Press:  27 February 2017

Thomas David Jones
Affiliation:
Southern University Law Center

Abstract

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Type
International Decisions
Copyright
Copyright © American Society of International Law 1994

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References

1 Agreement Relating to Establishment of a Cooperative Program of Interdiction and Selective Return of Certain Haitian Migrants and Vessels Involved in Illegal Transport of Persons Coming from Haiti, Sept. 23, 1981, U.S.-Haiti, 33 UST 3559 [hereinafter Interdiction Agreement].

2 See generally Thomas David Jones, Haitian Refugee Center, Inc. v. James Baker, III: The Dred Scott Case of Immigration Law, 11 Dick. J. Int’l. L. 1 (1992).

3 46 Fed. Reg. 48,109 (1981).

4 INS Role in and Guidelines for Interdiction at Sea (Oct. 6, 1981), revised (Sept. 24, 1982), reprinted in Jones, supra note 2, at 3–5 n.17.

5 Interdiction Agreement, supra note 1, at 3559–60; Executive Order No. 12,324 supra note 3, §2(c)(3); INS Guidelines, supra note 4, sec. C.

6 Executive Order No. 12,807, 57 Fed. Reg. 23,133 (1992). See also Haitian Migrants, 28 Weekly Comp. P”. Doc. 938 (May 27, 1992) (President Bush describing the Haitian refugees as economic refugees).

7 Haitian Refugee Center v. Baker, 953 F.2d 1498 (11th Cir. 1992), cert, denied, 112 S.Ct. 1245 (1992); Haitian Centers Council v. McNary, 969 F.2d 1350, cert, granted, 113 S.Ct. 52 (1992) (No. 92–344). Though other legal issues were decided in both Baker and McNary, this note will focus on the legality of the interdiction process under international law and the domestic law of the United States. The legality of the interdiction program and the Kennebunkport Order was the sole issue resolved in Sale.

8 For detailed discussion of the complaints filed by HRC, see Jones, supra note 2, at 1–6; see also Haitian Refugee Center, Inc. v. Gracey, 309 F.2d 794 (D.C. Cir. 1987) (upholding interdiction program because HRC did not have standing to challenge it). In his concurring opinion, Judge Harry T. Edwards wrote;

This case presents a painfully common situation in which desperate people, convinced that they can no longer remain in their homeland, take desperate measures to escape. Although the human crisis is compelling, there is no solution to be found in a judicial remedy. The stark reality here is that, pursuant to the allegations of the amended complaint, this court is constrained to conclude that the HRC has not alleged a claim upon which relief can be granted.

Id. at 841.

9 Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 UST 6223, 606 UNTS 267.

10 Haitian Refugee Center, Inc. v. Baker, 949 F.2d 1109 (11th Clr. 1991) [hereinafter Baker I]; Haitian Refugee Center, Inc. v. Baker, 950 F.2d 685 (11th Cir. 1991) [hereinafter Baker II]; Haitian Refugee Center, Inc. v. Baker, 953 F.2d 1498 (11th Cir. 1992) [hereinafter Baker III].

11 Baker I, 949 F.2d at 1110. The court defined a self-executing treaty as “an international agreement … that directly accords enforceable rights to persons without the benefit of Congressional implementation.” Id.

12 5 U.S.C. §§701–706 (1988).

13 See Jones, supra note 2, at 10–11, 35 (citing Haitian Refugee Center, Inc. v. Baker, No. 91–2653, at 1 n.1 (S.D. Fla. Dec. 18, 1991) (order memorializing oral rulings)).

14 Baker II, 950 F.2d at 689.

15 8 U.S.C.A. §1253(h)(1) (West Supp. 1993).

16 Baker III, 953 F.2d at 1506 (citing, inter alia, Brownell v. Tom We Shung, 352 U.S. 180 (1956)).

17 Id. at 1511.

18 Haitian Centers Council, Inc. v. McNary, No. 92-CV-1258 (E.D.N.Y. June 5, 1992) (memorandum and order). Though Judge Johnson rejected plaintiffs’ argument concerning the applicability of Article 33 of the 1967 Refugee Protocol and §243(h)(1) of the INA to Haitian refugees in international waters, he did hold recently that the due process clause of the Fifth Amendment required that the Government provide adequate medical care to HIV-infected detainees or evacuate them to a place where care is available. Haitian Centers Council, Inc. v. Sale, 823 F.Supp. 1028, 1038–39 (E.D.N.Y. 1993) (memorandum and order). He found:

It is outrageous, callous and reprehensible that defendant INS finds no value in providing adequate medical care even when a patient’s illness is fatal.

Although the defendants euphemistically refer to its Guantanamo operation as a “humanitarian camp,” the facts disclose that it is nothing more than an HIV prison camp presenting potential public health risks to the Haitians held there.

19 648 F.2d 204 (2d Cir. 1982).

20 Memorandum and order of June 5, 1992, supra note 18, at 8.

21 Id.; see also Haitian Centers Council, Inc. v. McNary, No. 92-CV-1258, para. 26 (E.D.N.Y. Apr. 6, 1992).

22 Memorandum and order of June 5, 1992, supra note 18, at 7 n.2.

23 969 F.2d 1350 (2d Cir. 1992). For more details, see Jonathan Harris, International Decisions: Haitian Centers Council, Inc. v. McNary, 87 AJIL 112 (1993).

24 969 F.2d at 1366–67.

25 Id. at 1359.

26 Id. at 1367.

27 McNary v. Haitian Centers Council, Inc., 61 U.S.L.W. 3082 (U.S. Aug. 1, 1992) (No. A–82).

28 Id.

29 113 S.Ct. 2549, 2552.

30 Id.

31 Id. at 2558.

32 Id. at 2574.

33 113 S.Ct. at 2559.

34 Id. at 2560.

35 Id. at 2552–53.

36 Id. at 2560.

37 Id.

38 Id. at 2561.

39 Id.

40 Convention Relating to the Status of Refugees, July 28, 1951, 189 UNTS 150. The United States is not a party to the Convention but in effect assumed the obligations under it when it acceded to the 1967 Protocol, supra note 9.

41 113 S.Ct. at 2563.

42 Id.

43 Id. (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953)).

44 Id. at 2564.

45 Id. at 2565.

46 Id. at 2566.

47 Id. at 2567.

48 Id.

49 William G. O’Neil, The Roots of Human Rights Violations in Haiti, 7 Geo. Immigr. L.J. 87, 92 (1993).

50 113 S.Ct. at 2553.

51 Id. n.8.

52 See, e.g., Edward Barnes, A Passage from Petit-Trou, Time, July 5, 1993, at 42–43; H. W. French, UN Finds Haitians Who Fled Anew, N.Y. Times, Feb. 16, 1992, at A3; H. W. French, Some Haitians Say Continuing Abuses Forced a 2d Flight, N.Y. Times, Feb. 10, 1992, at Al; Court Lets Repatriation Go On, Wash. Post, Feb. 12, 1992, at A9.

53 Geneva Convention on the High Seas, Apr. 29, 1958, Art. 2, 13 UST 2312, 450 UNTS 582 (entered into force Sept. 30, 1962).

54 INS v. Cardoza-Fonseca, 480 U.S. 421, 436–37 (1987).

55 113 S.Ct. at 2560.

56 Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949); see Brief of Nicholas Katzenbach, Benjamin R. Civiletti, and Griffin Bell, Former Attorneys General of the United States of America in Support of Respondents, at 11, Sale v. Haitian Centers Council, Inc. (Dec. 22, 1992) [hereinafter Br. of Attorneys General].

57 EEOC v. Arabian Oil Co., 111 S.Ct. 1227, 1230 (1991); Br. of Attorneys General, supra note 56, at 11.

58 113 S.Ct. at 2576–77 (Blackmun, J., dissenting).

59 Id. at 2577 (citing 6 U.S. (2 Cranch) 64, 117–18 (1804)).

60 United States v. Stuart, 489 U.S. 353, 371 (1989); Connecticut Nat’l Bank v. Germain, 112 S.Ct. 1146, 1449 (1992) (where language or words in a statute are clear and unambiguous, “ ‘the judicial inquiry is complete’ ”) (citations omitted).

61 Sutherland Stat. Const. §46, at 81–91 (Norman J. Singer ed., 5th ed. 1992) (see 1993 Cum. Supp.).

62 Id. §46.01, at 81.

63 Id. §46.01, at 15 (1993 Cum. Supp.).

64 113 S.Ct. at 2574 (Blackmun, J., dissenting) (citations omitted).

65 See generally Executive Order No. 12,711, 55 Fed. Reg. 13,897 (1990) (Chinese immigrants almost automatically granted asylum if they claim that they are persecuted because of the country’s family control policy—forced abortion or sterilization).

66 See text at notes 40–42 supra.

67 113 S.Ct. at 2576 (Blackmun, J., dissenting).

68 Quoted in Jones, supra note 2, at 32.

69 113 S.Ct. at 2564.

70 Andrew I. Schoenholtz, Aiding and Abetting Persecution: The Seizure and Return of Haitian Refugees in Violation of the U.N. Refugee Convention and Protocol, 7 Geo. Immigr. L.J. 67, 77 & n.37 (1993).

71 113 S.Ct. at 2571.

72 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331.

73 113 S.Ct. at 2565.

74 Id. at 2568.

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