Procedural Rights of Undocumented Aliens Interdicted in U.S. Internal Waters

Procedural Rights of Undocumented Aliens Interdicted in U.S.

Internal Waters

Undocumented aliens seeking to reach the United States aboard a vessel that has reached the internal

waters o f the United States at the time o f interdiction, but who have not come ashore on United

States “ dry land,” are not entitled to deportation proceedings or other proceedings under the Immi­

gration and Nationality Act.

Apprehension of such aliens in the internal waters of the United States solely for the purpose of

interdicting or repulsing their attempt to enter the United States unlawfully does not constitute

an “ arrest” under section 287(a)(2) of the Immigration and Nationality Act and would not require

the institution of exclusion or other proceedings under the AcL

If such aliens are brought ashore on United States dry land, they would acquire the status of “ appli­

cants for admission” and would have to be inspected and screened pursuant to section 23S of

the Immigration and Nationality Act.

N o v e m b e r 2 1 , 1996

M e m o r a n d u m O p in io n fo r t h e G en era l C o u n sel

I m m ig r a t i o n and N a t u r a l iz a t io n S e r v ic e

This responds to your request for our opinion on several additional questions

related to the interdiction of undocumented aliens in vessels before they have

come ashore in the United States.1 Your request was submitted before Congress

enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,

Pub. L. No. 104—208, Division C, 110 Stat. 3009, 3009-546 (1996) (“ Reform

Act” ), which substantially amended the Immigration and Nationality Act, ch. 477,

66 Stat. 163 (1952) (codified as amended at 8 U.S.C. §§1101-1503) (“ INA” ),

and thereby altered the premises of your questions in significant respects. Taking

into account the changes effected by the Reform Act, our response to your inquires

may be summarized as follows:

1. Undocumented aliens seeking to reach the United States aboard a transit ves­

sel that has reached the internal waters of the United States at the time of interdic­

tion, but who have not landed or been taken ashore on United States dry land,

are not entitled to deportation proceedings (now encompassed within the new “ re­

moval proceedings” established by section 304 of the Reform Act, INA §240,

110 Stat. 3009-589) or other proceedings under the INA.

1 Memorandum for Christopher Schroeder, Acting Assistant Attorney General, Office of Legal Counsel, from

David A. Martin, General Counsel, Immigration and Naturalization Service. Re: Rights o f Aliens Found In United

States Internal Waters (Aug. 12, 1996) ( “ INS Memo” ). Your request refines broader questions previously addressed

by this Office in opinions issued in J993 and 1994. See Immigration Consequences o f Undocumented Aliens' Arrival

in United States Territorial Waters, 17 Op. O.L.C. 77 (1993); Memorandum for T. Alexander Aleinikoff, General

Counsel, Immigration and Naturalization Service, from W alter Dellinger, Assistant Attorney General, Office o f Legal

Counsel, Re: Whether the Interdiction o f Undocumented Aliens Within United States Territorial Waters Constitutes

an 4‘Arrest’* under Section 287(a)(2) o f the Immigration and Nationality Act (Apr. 22, 1994) (“ Arrest O pinion” ).

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2. Apprehension of such aliens in the internal waters of the United States solely

for purposes of interdicting or repulsing their attempt to enter the United States

unlawfully does not constitute an “ arrest” under section 287(a)(2) of the INA

and would not require the institution of exclusion proceedings (now also encom­

passed by the new “ removal proceedings” ) or other proceedings under the INA.

If such aliens are brought ashore on U.S. dry land, however, they would acquire

the status of “ applicants for admission” and would have to be inspected and

screened pursuant to section 235 of the INA.

3. Until the State Department’s views on the matter are expressed, we defer

to the State Department on the question whether United States treaty obligations

would require it to implement non-refoulement protections if an alien apprehended

in internal waters demonstrates that his life or freedom would be threatened on

account of race, religion, nationality, membership in a particular political group,

or political opinion if he is returned to his country. We would note, however,

that to the extent such a treaty-based obligation is in conflict with the newly-

enacted provisions of the Reform Act, see, e.g., § 302(a), INA § 235(a)(1), 110

Stat. 3009-579 (“ Aliens Treated as Applicants for Admission” ), the latter would

prevail as the more recent enactment if Congress intended that result. See, e.g.,

R eid v. C overt, 354 U.S. 1, 18 (1957); Fong Yue Ting v. United States, 149 U.S.

698, 720(1893).

4. Your inquiry regarding the effect of section 414 of the Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1270

(“ AEDPA” ) insofar as it enacted a new subsection 241(d) of the INA has been

rendered moot due to the repeal of that subsection by section 308(d)(2)(D) of

the Reform Act.

Our analysis of the first two questions follows.

ANALYSIS

Your inquiry raises questions concerning undocumented aliens (i.e., those lack­

ing a visa or other authorization for lawful entry into the United States) interdicted

in the “ internal waters” of the United States, which you define by reference to

certain treaty and statutory definitions.2 The internal waters thus defined could

include, for example, such locations as the straits between the Florida Keys, por­

tions of the Chesapeake Bay, or even the upper reaches of the Potomac River.

For purposes of this analysis, we assume that the aliens in question are aboard

2 The C onvention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, Part I, §11, art. 5(1), 15 U.S.T.

1606, 1609, provides: “ W aters on the landw ard side o f the baseline o f the territorial sea form part o f the internal

waters o f the S tate.’* The related classification o f “ Inland Waters** is defined for purposes of domestic law under

33 U.S.C. §2003(o) as “ the navigable w aters o f the United States shoreward of the navigational demarcation lines

dividing the high seas from harbors, rivers, and other inland waters o f the United States and the waters o f the

Great Lakes on the U nited States side of the International Boundary.”

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Procedural Rights o f Undocumented Aliens Interdicted in U.S. Internal Waters

a vessel in transit from another country to the United States but have not landed

or disembarked on U.S. soil at the time of interdiction.

I.

Your initial question asks whether an undocumented alien interdicted in U.S.

inland waters has effected an “ entry” within the meaning of the INA and is thus

entitled to deportation proceedings. In this regard, we note that the amendments

to the INA enacted by the Reform Act have supplanted the significance of the

technical term “ entry” as a legal threshold for such procedural entitlements. See

Reform Act §§ 301(a) and 308(f), INA § 101(a)(13), 110 Stat. 3009-575, 3009-

621 (substituting the term “ admission” for “ entry” in various sections of the

INA). Before enactment of the Reform Act, an alien’s “ entry” into the United

States was generally regarded as a prerequisite to his entitlement to deportation,

as opposed to exclusion, proceedings. See Yang v. Maugans, 68 F.3d 1540, 1547

(3d Cir. 1995).

Under the amended provisions of the INA, both deportation and exclusion pro­

ceedings have been supplanted by the single, streamlined “ Removal Proceedings”

now governed by section 240 of the INA. That section provides:

Unless otherwise specified in this Act, a proceeding under this

section shall be the sole and exclusive procedure for determining

whether an alien may be admitted to the United States or, if the

alien has been so admitted, removed from the United States.

Reform Act § 304(a)(3), INA § 240(a)(3), 110 Stat. 3009-589. These removal pro­

ceedings are now called into play both with respect to those aliens who are “ appli­

cants for admission” who are not summarily removed under section

235(b)(l)(A)(i) of the INA as well as to those aliens who are “ in and admitted

to the United States” and who fall within various sub-categories of deportability.

INA § 237(a)(1), 8 U.S.C. § 1227(a)(1).

Relatedly, the Reform Act has created the new category of “ Aliens Treated

as Applicants for Admission” under section 235 of the INA. Reform Act § 302(a),

110 Stat. 3009-579. An alien’s classification within that category will now deter­

mine whether he must receive inspection, screening, and other attendant proce­

dures— including a removal proceeding under section 240 in the case of certain

applicants for admission whom the inspection officer determines are “ not clearly

and beyond a doubt entitled to be admitted” — in contrast to aliens who may

be summarily repulsed or returned without any INA screening and procedural re­

quirements. Thus, the question whether an alien’s presence on the internal waters

constitutes an “ entry” mandating “ deportation” procedures no longer reflects the

governing terminology and procedures. The relevant question now is whether such

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an alien qualifies as an “ applicant for admission” under section 235(a)(1) of the

INA, which provides as follows (emphasis added):

(1) A liens Treated a s Applicants fo r Admission. — An alien

present in the United States who has not been admitted, or who

arrives in the United States (whether or not at a designated port

of arrival and including an alien who is brought to the United States

after having been interdicted in international or United States wa­

ters) shall be deemed for purposes of this Act an applicant for ad­

mission.

Thus, aliens who are “ present in” or have “ arrive[d] in” the United States

are to be deemed “ applicants for admission” and must be accorded the inspection,

screening, and attendant procedures that will result in either admission, asylum,

or removal. That raises the question whether an alien interdicted on a vessel in

the internal waters of the United States, before he has disem barked on U.S. land,

shall be deemed “ present in the United States” or to have “ arrived in the United

States.” We conclude that the wording of section 235 yields a negative answer

to that question.

The underscored portion of section 235 contemplates the situation where an

alien is “ brought to the United States after having been interdicted in . . . United

States w a ters.” Id. (emphasis added). If an unlanded alien interdicted in United

States waters — which would include the inland waters — still must be “ brought

to” the United States, it plainly follows that Congress did not regard such an

alien as already present or arrived in the United States.3 Rather, Congress pro­

vided that the unlanded alien interdicted in United States waters must first be

“ brought to” the United States — i.e., taken ashore to U.S. dry land — before he

can be said to have “ arrived” there and before he acquires the right to be treated

as an applicant for admission.

Given our conclusion that unlanded aliens interdicted on internal waters do not

constitute “ applicants for admission,” and therefore need not be inspected or

screened pursuant to section 235(b), it necessarily follows that such aliens are

not entitled to removal proceedings (i.e., the amended INA’s substitute for depor­

tation proceedings) under section 240. Only those interdicted aliens who qualify

as applicants for admission must be referred to removal proceedings if the exam­

ining officer determines that they are not “ clearly and beyond a doubt entitled

3 This interpretation is consistent with the fact that the IN A ’s current definition o f “ United States,” 8 U.S.C.

§ 1101(a)(38), does not include waters o r airspace subject to the jurisdiction o f the United States. Moreover, as

emphasized in one recent court o f appeals opinion: “ Nor can it be said that the current definition implicitly includes

territorial w aters.” Yang v. Maugans, 68 F.3d at 1548. The court in Yang, noting that the defmition o f “ United

S tates" prior to the 1952 enactment of the INA did include “ waters . . . subject to [U.S.] jurisdiction,” ascribed

considerable significance to the absence o f “ waters” from the current definition in concluding that the “ physical

presence” requirement o f the former “ entry” test is satisfied “ only when an alien reaches dry land.” Id. al 1548-

49.

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to be admitted.” Reform Act §302(a), INA § 235(b)(2)(A), 110 Stat. 3009-582.4

Those aliens who do not land on U.S. soil, in contrast, do not constitute applicants

for admission and therefore need not be inspected or screened by an immigration

officer.

Our conclusion on this issue is fortified by court decisions interpreting the anal­

ogous concept of ‘‘physical presence in the United States” in deciding whether

aliens had effected an “ entry” under the pre-Reform Act provisions of the INA.

As demonstrated in your memorandum, INS Memo at 3-4, those decisions hold

that an arriving alien’s mere presence on U.S. waters does not establish the req­

uisite physical presence in the United States unless and until the alien has “ land­

ed” on U.S. soil. Yang v. Maugans, 68 F.3d at 1546-49; Zhang v. Slattery, 55

F.3d 732, 754 (2d Cir. 1995) (“ an alien attempting to enter the United States

by sea has not satisfied the physical presence elem ent. . . until he has landed” ),

cert, denied, 516 U.S. 1176 (1996); Chen Zhou Chai v. Carroll, 48 F.3d 1331,

1343 (4th Cir. 1995) (Chen never entered the United States because he was appre­

hended “ before he reached the shore” ).

In declining to equate presence in U.S. waters with “ presence in the United

States,” the wording of amended section 235 of the INA is consistent with these

holdings. Accordingly, both the text of the amended INA and pertinent judicial

precedents confirm the view that an unlanded alien is not entitled to removal pro­

ceedings, or any other proceedings under the INA, merely because he is appre­

hended in the internal waters of the United States. Only when such an alien has

reached or been “ brought to the United States [dry land]” does he attain the

status of an “ applicant for admission” and trigger the procedural requirements

linked to that status. Reform Act § 302(a), INA § 235(a)(1).

II.

The second question is whether an unlanded alien’s apprehension within the

internal waters constitutes an “ arrest” for purposes of section 287(a)(2) of the

INA, 8 U.S.C. § 1357(a)(2), and would therefore require the institution of exclu­

sion proceedings — i.e., what are now removal proceedings under amended section

240. In particular, INS takes the view that such apprehension constitutes an arrest

“ at least when it involves the boarding of the vessel by United States officers,

the forced diversion of the vessel at the command of United States officers, or

4 We note that section 235(a)(3) o f the amended INA provides: “ All aliens (including alien crewmen) who are

applicants for admission or otherwise seeking admission or readmission to or transit through the United States shall

be inspected by immigration officers.” (Emphasis added.) W e do not believe unlanded aliens interdicted on U.S.

internal waters constitute aliens “ otherwise seeking adm ission" who must be inspected by immigration officers

under this section. Unless that term is limited to those persons who appear before immigration officers in the United

States (or at its border) seeking admission, it would extend overinclusively to persons who m ay be hundreds or

thousands o f miles from the U nited States, but nonetheless “ seek admission” to it. Requiring immigration officers

to inspect all such persons would make no sense. Cf. Xiao v. Reno, 837 F. Supp. 1506, 1562 (N.D. Cal. 1993),

a ffd sub nom. Wang v. Reno , 81 F.3d 808 (9th Cir. 1996).

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the physical custody of an individual (for example, after being pulled from the

water).” INS Memo at 4.

Absent any purpose to hold the alien in question for processing under the INA,

prosecution, or for other legal proceedings, we do not view the apprehension of

an unlanded alien under the circumstances you describe as an “ arrest” and do

not conclude that it would require the institution of removal proceedings under

the INA.

Our 1994 Arrest Opinion concluded that “ INS interdictions of aliens within

the territorial waters do not involve taking aliens into custody and holding them

f o r fu rth er legal proceedings, and are thus not ‘arrests’ as that term is naturally

understood.” Arrest Opinion at 3 (emphasis added). The mere fact that such an

interdiction of unlanded aliens takes place in the internal waters of the United

States— e.g., on the straits of the Florida Keys— does not alter or undermine

our conclusion on that point. Because such an alien has not landed in the United

States, he is not “ present,” nor has he “ arrived,” in the United States within

the meaning of section 235 of the INA. We therefore do not consider his pre­

landing, non-prosecutorial apprehension an “ arrest” any more than if the appre­

hension occurred on non-internal territorial waters of the United States. Only if

the interdicted alien is taken into custody and held fo r the purpose o f further

immigration proceedin gs or prosecution — as opposed to being held until the ves­

sel is escorted or diverted out of United States waters— would an “ arrest” re­

sult. 5

Your memorandum specifically contends that the apprehension of unlanded

aliens in internal waters must be viewed as an arrest under the provisions of sec­

tion 287(a)(2) of the INA (INS Memo at 4). In this regard, our prior opinion

stressed that section 287(a)(2) of the INA “ is not designed to guarantee procedural

rights to illegal aliens whom the INS turns back from this country before they

have a rrived .” Arrest Opinion at 8 (emphasis added). As discussed above, an

unlanded interdicted alien has not “ arrived” in the United States unless and until

he disembarks on U.S. dry land. When such an unlanded alien is apprehended

and temporarily detained solely in order to “ turn back” his attempted entry, rather

than for the purpose of subjecting him to the procedures or sanctions of U.S.

immigration laws, the particular concerns of section 287(a)(2)’s provisions are

simply not implicated.

RICHARD L. SMFFRIN

Deputy Assistant Attorney General

Office o f Legal Counsel

5 O f course, if the alien were taken ashore for some reason— i.e., if he were “ brought to the United States"

w ithin the meaning o f section 235(a)(1)— he would be deem ed an “ applicant for admission*’ and would have to

be inspected and screened pursuant to section 235(b), which in some cases m ay lead in turn to asylum or removal

proceedings.

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