Appendix — Sale v. Haitian Centers Council, Inc.

92-344 FILED

A

No. UG 24 1992

; an 7 | OFFICE OF THE CLERK

Iu the Supreme Court of the Anite Slates

OCTOBER TERM, 1992

GENE MCNARY, COMMISSIONER, IMMIGRATION

AND NATURALIZATION SERVICE, ET AL., PETITIONERS

HAITIAN CENTERS COUNCIL, INC., ET AL.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

PAUL T. CAPPUCCIO

Associate Deputy Attorney General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

MICHAEL JAY SINGER

PETER R. MAIER

Attorneys

Department of Justice

Washington, D.C. 20520

(202) 514-2217

a

TABLE OF CONTENTS

Appendix A (Court of Appeals Opinion (7/29/92) )._...

Appendix B (Court of Appeals Opinion (6/10/92) )__...

Appendix C (District Court Memorandum (3/27/92))..

Appendix D (District Court Memorandum (4/6/92) )..

- Appendix E (District Court Memorandum (6/5/92) ).

Appendix F (District Court Order (7/29/92)) —........

Appendix G (Court of Appeals Opinion (12/17/91))....

Appendix H (Court of Appeals Opinion (2/4/92) )

Appendix I (Treaty, Statutory Provisions, and Execu-

cs acdnanennrpanabnneceahens

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 2023—August Term 1991

Argued: June 26, 1992 Decided: July 29, 1992

Docket No. 92-6144

HAITIAN CENTERS COUNCIL, INC.; NATIONAL COALI-

TION FOR HAITIAN REFUGEES, INC.; IMMIGRATION

LAW CLINIC OF THE JEROME N. FRANK LEGAL

SERVICES ORGANIZATION OF NEW HAVEN, COoN-

NECTICUT; Dr. FRANTZ GUERRIER; PASCAL HENRY;

LAURITON GUNEAU; MEDILIEU SoREL ST. FLEUR;

DiEU RENEL; MILOT BAPTISTE; JEAN DOE; ROGES

NOEL; on behalf of themselves and all others simi-

larly situated; A. IRIS VILNOR; MIREILLE BERGER;

YVROSE PIERRE; and MATHIEU NOEL, on behalf of

themselves and all others similarly situated,

PLAINTIFFS-APPELLANTS,

-against-

GENE MCNArRY, Commissioner, Immigration and Nat-

uralization Service; WILLIAM P. Bakr, Attorney

General; Immigration and Naturalization Serv-

ice; JAMES BAKER, III, Secretary of State; Rear

Admiral ROBERT KRAMEK; Admiral KIME; Com-

mandants, United States Coast Guard; and Com-

mander, U.S. Naval Base, Guantanamo Bay,

DEFENDANTS-APPELLEES.

(la)

2a

Before: NEWMAN, PRATT, and WALKER, Circuit

Judges.

Judge Newman, with whom Judge Pratt joins, con-

curs in a separate opinion.

Judge Walker dissents in a separate opinion.

PRATT, Circuit Judge:

On May 23, 1992, President George Bush issued

an executive order which allowed the Coast Guard to

intercept boatloads of Haitian refugees at sea and to

return them to their persecutors in Haiti. The nar-

row issue we decide on this appeal is whether the

government’s actions, taken to implement this order,

comport with § 243(h)(1) of the Immigration and

Nationality Act, 8 U.S.C. § 1253(h)(1). We hold

that they do not.

FACTS AND BACKGROUND

The factual and procedural background to this

lawsuit, including the volatile political climate in

Haiti, is well-chronicled in our prior decision, Haitian

Centers Council, Ine. v. MeNary, Nos. 92-6090, 92-

6104, slip op. 4371, 4374-85 (2d Cir. June 10, 1992)

_ (HCC 1), familiarity with which is assumed. This

particular appeal, however, concerns events that pri-

marily took place after the record in that case had

been developed.

On May 23, 1992, President Bush signed an execu-

tive order which has come to be known as the

“Kennebunkport Order”. In part, it reads as fol-

lows:

Section 1. The Secretary of State shall under-

take to enter into, on behalf of the United States,

3a

cooperative arrangements with appropriate for-

eign governments for the purpose of preventing

illegal migration to the United States by sea.

Sec. 2. (a) The Secretary of the Department

in which the Coast Guard is operating, in con-

sultation, where appropriate, with the Secretary

of Defense, the Attorney General, and the Secre-

tary of State, shall issue appropriate instruc-

tions to the Coast Guard in order to enforce the

suspension of the entry of undocumented aliens

by sea and the interdiction of any defined vessel

carrying such aliens.

(c) Those instructions to the Coast Guard

shall include appropriate directives providing for

the Coast Guard:

(1) To stop and board defined vessels, when

there is reason to believe that such vessels are

engaged in the irregular transportation of per-

sons or violations of United States law or the

law of a country with which the United States

has an arrangement authorizing such action.

(2) To make inquiries of those on board, ex-

amine documents and take such actions as are

necessary to carry out this order.

(3) To return the vessel and its passengers

to the country from which ii came, or to another

country, when there is a reason to believe that

an offense is being committed against the United

States immigration laws, or appropriate laws of

a foreign country with which we have an ar-

rangement to assist; provided, however, that the

Attorney General, in his unreviewable discretion,

may decide that a person who is a refugee will

not be returned without his consent.

4a

(d) These actions, pursuant to this section,

are authorized to be undertaken only beyond the

territorial sea of the United States.

Sec. 3. This order is intended only to improve

the internal management of the Executive

Branch. Neither this order nor any agency

guidelines, procedures, instructions, directives,

rules or regulations implementing this order

shall create, or shall be construed to create, any

right or benefit, substantive or procedural (in-

cluding without limitation any right or benefit

under the Administrative Procedure Act), le-

gally enforceable by any party against the

United States, its agencies or instrumentalities,

officers, employees, or any other person. Nor

shall this order be construed to require any pro-

cedures to determine whether a person is a ref-

ugee.

/s/ George Bush

THE WHITE HOUSE

May 23, 1992.

Exec. Order 12,807, 57 Fed. Reg. 23,133, 23,133-34

(1992) (emphasis added). Although the Kennebunk-

port Order did not specifically mention Haiti, the

next day, when the order was released to the national

news media, it was accompanied by a statement from

the White House Press Secretary, which noted that

the President had “issued an executive order which

will permit the U.S. Coast Guard to begin returning

Haitians picked up at sea directly to Haiti.”

The Coast Guard followed orders, and immediately

began to intercept numerous boatloads of Haitians in

5a

international waters, and to forcibly return them to

Haiti without determining whether they would be

thereupon persecuted.

On May 28, 1992, plaintiffs sought a temporary

restraining order before Judge Johnson, challenging

the actions under the new policy as ultra vires, as

well as violative of (1) § 243(h)(1) of the INA,

(2) Article 33 of the 1954 Convention relating to

the Status of Refugees, (3) the 1981 U.S.-Haiti

Executive Agreement, (4) the Administrative Pro-

cedure Act, and (5) the equal protection component

of the fifth amendment’s due process clause. The

district court held a hearing, at which the plaintiffs

presented not only evidence demonstrating the height-

ened political repression currently occurring in Haiti,

but also evidence that specific plaintiffs who had been

returned have since been abused, were tortured, and

were hiding in fear of their lives.

Judge Johnson construed the plaintiffs’ motion as

one for a preliminary injunction. Although he called

the United States’ actions “unconscionable”, “par-

ticularly hypocritical’, and “a cruel hoax”, he none-

theless denied the injunction. Relying on his prior

decision that the right to counsel under 8 U.S.C.

§ 1362 and 8 C.F.R. § 208.9 is limited to aliens found

in the United States, Judge Johnson concluded that

“Section 243(h) is similarly unavailable as a source

of relief for Haitian aliens in international waters.”

He also concluded that although “[o]n its face, Arti-

cle 33 imposes a mandatory duty upon contracting

states such as the United States not to return refu-

gees to countries in which they face political persecu-

tion”, our prior decision in Bertrand v. Sava, 684

F.2d 204, 218 (2d Cir. 1982) held that the Conven-

tion’s provisions are not self-executing; thus, Judge

6a

Johnson felt he could not grant plaintiffs the re-

quested relief. He did not address the other issues

raised by the plaintiffs.

We have jurisdiction over this expedited appeal

under 28 U.S.C. § 1292(a) (1).

DISCUSSION

Although this is an appeal from the denial of a

preliminary injunction, only questions of law are

presented, and our usual de novo review applies.

There is no challenge to Judge Johnson’s finding that

“the Plaintiffs undeniably make a substantial show-

ing of irreparable harm”; thus, if the district court’s

view of the law was incorrect, then an injunction

should issue.

On appeal, the plaintiffs wield the full arsenal of

arguments that they wielded in the district court—

§ 243(h) of the INA, Article 33 of the Refugee Con-

vention, the 1981 U.S.-Haiti agreement, the APA,

and the fifth amendment’s equal protection compo-

nent. The government addresses each of these con-

tentions, and adds two of their own: (1) that since

the subject plaintiffs are now back in Haiti, they

stand in the same position as the “screened-out”’

plaintiffs in a similar federal action commenced in

Florida, and are thus bound under principles of col-

lateral estoppel by the eleventh circuit’s holding in

Haitian Refugee Center, Inc. v. Baker, 953 F.2d

1498 (11th Cir.) (per curiam) (HRC v. Baker),

cert. denied, 112 S. Ct. 1245 (1992); and (2) thai

the executive order falls within the President’s con-

stitutional powers as commander-in-chief and his in-

herent authority over foreign relations, and was is-

sued “pursuant to an express or implied authoriza-

tion of Congress.” Youngstown Sheet & Tube Co. v.

7a

Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J.,

concurring ).

We address the dispositive contentions in turn.

A. Preclusive E flect of HRC v. Baker.

The administration’s policy toward Haitian refu-

gees has been the subject of litigation in two actions,

one brought in Florida and the other in New York.

Classes of Haitian refugees have been certified in

both actions. See Fed. R. Civ. P. 23(a), 28(5) (2).

The class in the Florida action, certified on December

3, 1991, was defined as

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 base

who were interdicted on the high seas pursuant

to the United States Interdiction Program and

who are being denied First Amendment and

procedural rights.

This “Florida class” is focused primarily on Haitians

who have been “screened out” (i.e. interviewed by

INS officers and found not to have a credible fear of

persecution upon return to Haiti), although we have

previously noted that it was defined in an “overly

broad” fashion which did not fairly and adequately

represent the interests of the plaintiffs herein. See

HCC I, slip op. at 4392. In contrast, the class in the

New York action, conditionally certified on Aprii 7,

1992, was defined as “All Haitians who have been or

will be ‘screened in’”’. See id. at 4390-91.

In HRC v. Baker, the eleventh circuit was presented

with a “claim that [the Florida class plaintiffs] have

judicially enforceable rights under the INA because

the defendants’ actions violate 8 U.S.C. § 1253(h)

as it was amended by the Refugee Act.” 953 F.2d

8a

at 1509. The eleventh circuit concluded that the

plaintiffs there (who were interdicted on the high

seas but had not reached the United States, its bor-

ders, or any port of entry) could not assert a claim

based on this section of the INA. Jd. at 1510. Argu-

ably, the eleventh circuit also passed upon the Article

33 issue. Cf. id. at 1508.

Plaintiffs identify three sub-groups within the

New York class of “[a]ll Haitian citizens who have

been or will be ‘screened-in’”’ which are being harmed

by the executive actions taken pursuant to the Kenne-

bunkport order:

(1) some 150 Haitians who have been repatri-

ated even though previously screened-in;

(2) thousands of Haitians with credible fears

of persecution who are being or will be in-

terdicted, but should have been screened-in;

and

(3) those Haitians on Guantanamo Naval Base

who are now unscreened and would be

screened-in but for the summary repatria-

tion which the government may seek.

Additionally, there are other plaintiffs, screened out

under the program that was in place prior to the

Kennebunkport Order, who, although not members

of the New York class certified by Judge Johnson,

are nonetheless plaintiffs in this case. The govern-

ment argues that all of these plaintiffs are enveloped

in the Florida class, and are thus collaterally estopped

from relitigating the § 243(h) issue and the Article

33 issue.

Ya

1. Different parties.

It is axiomatic that “a judgment in a properly

entertained class action is binding on class members

in any subsequent litigation.” Cooper v. Federal Re-

serve Bank of Richmond, 467 U.S. 867, 874 (1984)

(citing, inter alia, RESTATEMENT (SECOND)

OF JUDGMENTS § 41(1)(e) (1982)). Collateral

estoppel, known also as “issue preclusion’, “prevents

the parties’ relitigation of an issue that was (a)

raised, (b) litigated, and (c) actually decided by a

judgment in their prior proceeding”. Prime Manage-

ment Co. v. Steinegger, 904 F.2d 811, 816 (2d Cir.

1990). To be bound by a prior judgment, a party in

the subsequent litigation must have been a party to,

or represented by a privy in, the prior action; other-

wise, it would be a violation of due process to enforce

the prior judgment against that party. Parklane

Hosiery Co. v. Shore, 439 U.S. 322, 327 & n.7 (1979).

We do not believe that any of the sub-groups of

plaintiffs could fairly be characterized as a party te

the Florida action; thus, the issues they present to

us are not barred by collateral estoppel. As we have

noted above, the Florida class of Haitian aliens had

three requirements for membership:

(a) current or future detention on cutters or at

Guantanamo Bay;

(b) interdiction “pursuant to the United States

Interdiction Program”, and

(c) denial of first amendment and procedural

rights (/.e., the screening procedures).

Simply put, the plaintiffs here do not meet the second

characteristic because they are not being interdicted

“pursuant to the United States Interdiction Program”

10a

that was before the eleventh circuit, thus they do not

fit within the definition of the Florida class. The

plaintiffs here have been or will be interdicted pur-

suant to a different interdiction program. The one at

issue in HRC v. Baker was a program of preliminary

screening before return; the program put in place by

the Kennebunkport Order is one of summary return

without screening. This is a change sufficient to avoid

the class definition in HRC v. Baker.

Judge Johnson defined the New York class as “All

Haitians who have been or will be ‘screened in’ ”’.

This phrasing necessarily encompasses two subgroups

of Haitians threatened by persecution: those who had

arrived prior to the certification of the class on April

7, 1992, and those who arrived, or will arrive, there-

after. All of those class members who “will be’, but

have not yet been, screened in, are necessarily persons

who will be interdicted pursuant to the new program

put in place by the Kennebunkport Order. If inter-

dicted at sea and summarily repatriated, those class

members will be denied screening.

There is at least one other person who is also out-

side the scope of the Florida class, but who is none-

theless a plaintiff in this case. A. Iris Vilnor is “a

Haitian being held in detention on Guantanamo who

has been ‘screened out’ by the INS.” Complaint § 10,

at 6, HCC v. McNary, No. CV-92-1258 (E.D.N.Y.).

She purports to represent 8,000 other screened-out

plaintiffs (the “Vilnor plaintiffs”). Although the

plaintiffs in HRC v. Baker included screened-out Hai-

tians, those plaintiffs were challenging the old pro-

gram. Vilnor, and those she purports to represent,

are challenging the new program, which was imposed

under the Kennebunkport Order.

lla

As to the Vilnor plaintiffs, the government claims

that they have no interest in litigating the issues

before us, because they have nothing to gain from a

return to the old program. This argument, of course,

is addressed to standing, not collateral estoppel, and

in any event, the Vilnor plaintiffs do have standing

because they are not on this motion asserting any

right to an initial screening; rather, they are assert-

ing a right, under § 248(h) of the INA and Article

33 of the Refugee Convention, not to be returned to

Haiti. While screened-out before, this determination

cannot be binding for all time, since political situa-

tions change. The Vilnor plaintiffs might well, upon

a future interception, be found to have been threat-

ened by persecution.

In sum, neither those plaintiffs who would be

screened in, nor those plaintiffs who would be screened

out but who are now being intercepted under the new

interdiction program, are precluded by the HRC v.

Baker litigation, as they were not members of the

plaintiff class as defined in that case.

2. Change in circumstances.

Even if all of the requirements for issue preclu-

sion are met, a court should nonetheless decline to

give collateral estoppel effect to a prior judgment if

there are “changes in facts essential to [the prior]

judgment”, Montana v. United States, 440 U.S. 147,

159 (1979), or if “a new determination is warranted

in order to take account of an intervening change in

the applicable legal context or otherwise to avoid in-

equitable administration of the laws.” RESTATE-

MENT (SECOND) OF JUDGMENTS § 28(2)

(1982). We have accepted the view put forth in the

Restatement’s § 28(2), Staten Island Rapid Transit

12a

Operating Auth. v. ICC, 718 F.2d 533, 543 (2d Cir.

1983), as have other courts, e.g., Kania v. Fordham,

702 F.2d 475, 476 n.2 (4th Cir. 1983) (‘‘Relitigation

of an issue of public importance should not be pre-

cluded when there has been ‘an intervening change in

the applicable legal context.’”’). Where pure, “un-

mixed question of law” are presented in successive

actions, “preclusion may be inappropriate”, for

“(ujnreflective invocation of collateral estoppel * * *

could freeze doctrine in areas of the law where re-

sponsiveness to changing patterns of conduct * * *

is critical.” Montana v. United States, 440 U.S. at

162-63. Accord Allen v. McCurry, 449 U.S. 90, 95

n.7 (1980).

Especially where pure questions of law are pre-

sented, courts and commentators both have recog-

nized that the interests of finality and judicial econ-

omy may be outweighed by other substantive policies,

for in this circumstance “[t]he interests of courts

and litigants alike can be protected adequately by the

flexible principles of stare decisis.” 18 Charles A.

Wright, Arthur R. Miller, & Edward H. Cooper,

Federal Practice and Procedure § 4425, at 244 (1981).

See also United States v. Stauffer Chem. Co., 454

U.S. 165, 177 (1984) (White, J., concurring) (“were

consistency a compelling concern as between circuits,

the decision of one circuit would bind the others even

in litigation between two entirely different parties.” )

As to those plaintiffs who are arguably members of

the Florida class, we believe that the Kennebunkport

Order represents “an intervening change in the ap-

plicable legal context”, see RESTATEMENT (SEC-

OND) OF JUDGMENTS § 28(2), which warrants

“a new determination”. 7d. Since the dispositive

question—whether § 243(h) of the INA applies to

13a

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 plain-

tiffs from litigating this issue, and the public impor-

tance of the issue merits full consideration on the

merits, especially in light of the events that have

occurred since the eleventh circuit decided HRC v.

Baker and the Supreme Court denied certiorari.

After prevailing in the eleventh circuit, the Solici-

tor General of the United States opposed certiorari in

HRC v. Baker by representing to the Supreme Court

“that ‘screened in’ individuals would be brought to

the United States so that they could file applications

under the [INA] for asylum.” HCC I, slip op. at

4382. See also Brief for United States in Opposition

to Certiorari at 3, HRC v. Baker, cert. denied, 112

S. Ct. 1245 (1992) (No. 91-1292) (same). After that

representation, the Supreme Court denied certiorari

on February 24, 1992, Justice Blackmun dissenting.

See HRC v. Baker, 112 S. Ct. 1245 (1992).

Only five days |: '>r, as we noted in HCC I, slip op.

at 4382, the United States altered its policy in some

respects, contravening the representation it had made

to the Supreme Court. Then, scarcely two months

later, the President issued the Kennebunkport Order,

which made no pretense at all of adhering to the

Solicitor General’s prior representation to the Su-

preme Court. On the contrary, it permitted a policy,

subsequently implemented, of ”o screening whatsoever.

A discretionary denial of review, of course, does

not deprive a ruling of preclusive effect, see, e.9.,

RESTATEMENT (SECOND) OF JUDGMENTS

§ 28, comment a; but the circumstances surrounding

the denial of certiorari in the Florida litigation weigh

l4a

significantly against granting that judgment preclu-

sive effect in this action. The Supreme Court may

well have seen no need to review HRC v. Baker, given

the government’s representation that no alien with a

colorable claim of asylum would be turned away. But

when the United States (a) resists Supreme Court

review on a dramatic issue of such public import (a

fact noted by three justices upon the denial of certi-

orari, see 112 S. Ct. at 1245-46), by representing that

there will be screening of intercepted aliens followed

by full consideration of asylum rights, (b) achieves

the desired denial of certiorai7, and then (c) embarks

on a completely contrary policy, that is a change of

the type that ought to permit an inferior court, un-

fettered by estoppel, to adjudicate the merits of a

new case based on the new circumstances.

As will be seen, infra, we disagree with the eleventh

circuit’s conclusion that § 243(h) of the INA does

not apply to return of refugees interdicted beyond the

territorial waters of the United States. Since this

creates an explicit “circuit split”, the Supreme Court

may see fit to grant certiorari on this case, cf. Sup.

Ct. R. 10.1(a), and decide the issues which it declined

to consider in HRC v. Baker. If it does, it will have

the benefit of the carefully-considered, although con-

trary, views of two judicial circuits. The federal

judicial hierarchy deserves this opportunity to con-

sider this weighty issue on the merits, especially in

light of the drastic changes in the legal context which

have occurred since February 24, 1992.

Having concluded that we are not precluded in this

case by the eleventh circuit’s interpretation of § 243

(h)(1) in HRC v. Baker, we proceed to address the

merits of that issue.

l5a

B. Section 243(h)(1) of the INA.

Before 1980, § 243(h) of the INA read as follows:

The Attorney General is authorized to withhold

deportation of any alien within the United States

to any country in which in his opinion the alien

would be subject to persecution on account of

race, religion, or political opinion and for such

period of time he deems to be necessary for such

reason.

In 1980 this section was replaced by a new § 243(h),

consisting of two subparagraphs which were part of

the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat.

102. With that change, § 243(h)(1) reads thusly:

The Attorney General shall not deport or return

any alien * * * to a country if the Attorney

General determines that such aliens’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.

8 U.S.C. § 1253(h)(1). This new statute makes the

following textual changes: it strips the attorney gen-

eral of the discretion formerly granted him under the

old § 243(h) and makes his obligations under this

new section mandatory; it applies now to “any alien”,

rather than “any alien within the United States”;

and instead of authorizing the attorney general to

“withhold deportation”, it states that he “shall not

deport or return” an alien found to have been threat-

ened by persecution.

These amendments to this statute present us with

two problems of construction and _ interpretation.

First, we must determine whether Haitians inter-

cepted in international waters fall within the scope

l6a

of “any alien” in § 243(h)(1). If so, we must turn

to the second problem: whether intercepting Haitians

in international waters and returning them to Haiti

constitutes the “return” of an alien, conduct that

would be impermissible under § 243(h) (1).

1. Congress has already resolved the first problem

for us, for in §101(a)(3) of the INA, 8 U.S.C.

§$ 1101(a)(3), it has provided that, as used in the

INA, “[t]he term ‘alien’ means any person not a

citizen or national of the United States.” The plain

language of this provision makes clear that aliens are

aliens, regardless of where they are located. Since

the words of the statute are unambiguous, “ ‘judicial

inquiry is complete.” Connecticut Nat'l Bank v.

Germain, 112 S. Ct. 1146, 1149 (1992) (quoting

Rubin v. United States, 449 U.S. 424, 4830 (1981)).

In light of this congressional definition, the plaintiffs

in this case, who are citizens of Haiti, not of the

United States, are plainly designated by the term

“any alien”, used by congress in §$ 243(h) (1).

Since the plain language of § 243(h) (1) and $101

(a)(3) appears to resolve the first statutory problem

before us, we may turn to other canons of construction

only to determine whether there is a “clearly ex-

pressed legislative intention” contrary to that lan-

guage, which would require us to question the virtu-

ally-conclusive presumption that congress meant what

it said. United States v. James, 478 US. 597, 606

(1986). But see INS ». Cardoza-Fonseca, 480 U.S.

421, 452 (1987) (Sealia, J., concurring) (only when

the plain language leads to a “patent absurdity”) ;

Union Bank v. Wolas, 112 S. Ct. 527, 534 (1991)

(Sealia, J., concurring) (only to find “a ‘serivener’s

error’ producing an absurd result”). The government

nevertheless tenders numerous reasons—the presump-

17a

tion against extraterritorial application, an assertedly

inconsistent provision in § 243(h)(2)(C), § 243’s

placement in part V of the INA, and other provisions

of the INA which expressly limit their application to

aliens “within the United States”—-to support its

argument that § 243(h)(1) does not apply to these

plaintiffs. We reject all of these arguments, none of

which is ufficient to overcome the plain language of

§ 243(h) (1).

First, the presumption that laws of the United

States have no extraterritorial application has no

relevance in the present context. That presumption

is a canon of construction “whereby unexpressed

congressional intent may be ascertained”, Foley Bros.,

Inc. v. Filardo, 336 U.S. 281, 285 (1949) (emphasis

added), which “serves to protect against unintended

clashes between our laws and those of other nations

which could result in international discord.” EEOC

». Arabian American Oil Co., 111 S. Ct. 1227, 1230

(1991). But congress knew “how to place the high

seas within the jurisdictional reach of a statute”,

Argentine Republic v. Amerada Hess Shipping Corp.,

488 US. 428, 440 (1989), and it did so here by

making § 243(h)(1) apply to “any alien” without

regard to location. Additionally, comity is of reduced

concern here, as the Haitians are being intercepted

in international (7.e., non-sovereign) waters. We are

thus not faced with the spectre of forum-shopping

refugees coming into United States courts in order

to enforce some right that courts in Haiti would not

recognize; on the contrary, § 243(h)(1) may be in-

voked only in United States courts, and only against

the United States government. Only when the United

States itself acts extraterritorially does § 243(h) (1)

have extraterritorial application. Absent proactive

18a

government intervention of the sort presented here,

§ 243(h)(1)’s ban on “return” of aliens to their

persecutors could not be invoked by persons located

outside the borders of the United States.

Second, the government points us to § 243(h) (2)

(C) of the INA, which directs that the provisions of

§ 243(h)(1) shall not apply if “there are serious

reasons for considering that the alien has committed a

serious nonpolitical crime outside the United States

prior to the arrival of the alien in the United States.”

8 U.S.C. § 1253(h)(2)(C). The government argues

that the language “prior to the arrival of the alien in

the United States” means that § 243(h)(1) cannot

apply to these plaintiffs, who have not arrived in the

United States. We disagree.

To accept the government’s reading of the statute,

we would, in effect, be reading the words “within the

United States” back into § 243(h)(1), which would

counter congress’s plainly expressed intent to elimi-

nate those limiting words in 1980. The Supreme

Court only recently reminded us of “the canon of

statutory construction requiring a change in language

to be read, if possible, to have some effect. see, ¢.7.,

Brewster v. Gage, 280 U.S. 327, 337 (1930); 2A

N. Singer, Sutherland Statutory Construction § 46.06

(5th ed. 1992).” American Nat’l Red Cross v. S.G.,

60 U.S.L.W. 4631, 4635 (U.S. June 19, 1992). Our

reading, on the other hand, gives full vitality to all

portions of § 243(h), as actually written by congress.

True, the “serious nonpolitical crime” exception in

$ 243(h)(2)(C) does not apply to an alien who has

not arrived in the United States, but that seems to

be precisely what congress meant to accomplish. Not

only is that the way they worded the exception, but

it also comports with common sense. The United

19a

States would have a strong domestic interest in keep-

ing alien criminals out of its territory (and out of

its prisons), and a strong foreign policy interest in

refraining from granting safe haven to nonpolitical

criminals fleeing from other countries.

Before 1980, § 243(h) distinguished between two

groups of aliens: those “within the United States”,

and all others. After 1980, § 243(h)(1) no longer

recognized that distinction, although § 243(h) (2) (C)

preserves it for the limited purposes of the “serious

nonpolitical crime” exception. The government’s read-

ing would require us to rewrite § 243(h)(1) into its

pre-1980 status, but we may not add terms or pro-

visions where congress has omitted them, see Gregory

v. Ashcroft, 111 8. Ct. 2395, 2404 (1991); West

Virginia Univ. Hosps., Inc. v. Casey, 111 S. Ct. 1138,

1148 (1991), and this restraint is even more com-

pelling when congress has specifically removed a term

from a statute: “Few principles of statutory con-

struction are more compelling than the proposition

that Congress does not intend sub silentio to enact

statutory language that it has earlier discarded”.

Nachman Corp. v. Pension Benefit Guaranty Corp.,

446 U.S. 359, 392-93 (1980) (Stewart, J., dissenting)

(quoted with approval in JNS v. Cardoza-Fonseca,

480 U.S. at 442-43). “To supply omissions tran-

scends the judicial function.” /selin v. United States,

270 U.S. 245, 250 (1926) (Brandeis, J.).

The third reason urged by the government for not

reading the statute literally, is that § 243(h)(1) is

located in Part V of the INA. This argument simi-

larly fails. Part V of the INA deals primarily with

deportation and adjustment of status. The eleventh

circuit relied on this fact—almost exclusively—to

conclude that “[t]he provisions of Part V of the INA

20a

dealing with deportation only apply to aliens ‘in the

United States.’” HRC v. Baker, 953 F.2d at 1510

(citing, inter alia, 8 U.S.C. §§ 1251, 1253(a)). Put-

ting aside the fact that it ignores the plain language

of § 243(h), this argument ascribes entirely unwar-

ranted weight to the location of the provision: of

course, the provisions of Part V “dealing with de-

portation” must apply only to aliens “in the United

States’’, since an alien must be “in” the “port” of a

country in order to be ‘‘de-ported” from it. See gener-

ally 8 U.S.C. §1251(a) (“Any alien * * * in the

United States” may be deported if certain conditions

are met); David A. Martin, Major Issues in Immi-

gration Law 9-10 (Federal Judicial Center 1987).

The statute’s location in Part V reflects its original

placement there before 1980—when § 243(h) applied

by its terms only to “deportation”. Since 1980, how-

ever, §243(h)(1) has applied to more than just

“deportation”—it applies to “return” as well (the

former is necessarily limited to aliens “in the United

States’, the latter applies to all aliens). Thus, § 243,

which applies to all aliens, regardless of whereabouts,

has broader application than most other portions of

Part V, each of which is limited by its terms to aliens

“in” or “within” the United States; but the fact that

§ 243 is surrounded by sections more limited in appli-

cation has no bearing on the proper reading of § 243

itself. If anything, it has an effect opposite to what |

the government suggests: it tends to prove that if

congress had meant to limit § 243(h)(1)’s scope to

aliens “in the United States”, it surely knew how to

do that. “‘“[W]here Congress includes particular

language in one section of a statute but omits it in

another section of the same Act, it is generally pre-

sumed that Congress acts intentionally and purposely

2la

in the disparate inclusion or exclusion.”’” JNS v.

Cardoza-Fonseca, 480 U.S. at 432 (citations omitted).

Lastly, we reject the government’s suggestion that

since § 243(h) restricts actions of only the attorney

general, the President might in any event assign the

same “return” function to some other government

official. Congress understood that the President’s

agent for dealing with immigration matters is the

attorney general, see 8 U.S.C. §$ 1103(a); cf. Klein-

dienst v. Mandel, 408 U.S. 753, 766 (1972), and we

would find it difficult to believe that the proscription

of § 243(h)(1)—returning an alien to his persecu-

tors—was forbidden if done by the attorney general

but permitted if done by some other arm of the execu-

tive branch.

In sum on this point, the district court erred in

concluding that § 243(h)(1) does not apply to aliens

outside the United States. By drawing its conclusion

from its earlier right-to-counsel ruling, the district

court failed to appreciate the differences in the plain

language of the two statutes. The INA’s right-to-

counsel provision, 8 U.S.C. § 1362, applies to “the

person concerned” in “any exclusion or deportation

proceeding[]”, whereas, as we have already noted,

§ 243(h)(1) applies by its terms to a much broader

class of persons-—all “aliens”, no matter where

located.

2. Having concluded that § 243(h)(1) applies to

all “aliens”, we must face the other textual problem

posed by the statute: whether the government’s inter-

ception and forcible repatriation of Haitian refugees

constitutes a “return” of those refugees to their

persecutors in violation of § 243(h)(1). We conclude

that it does.

22a

Section 243(h) (1) prohibits the government from

both deporting and returning an alien. Virtually all

prier litigation under this subsection has focused on

the term “deport”; not until the executive’s recent

actions in “reaching out” to repatriate Haitians has

litigation attention shifted to the term “return”,

which is nowhere defined in the INA. Since congress

provided no special defintions, we must interpret

§ 243(h) (2) by “giving the ‘words used’ their ‘ordi-

nary meaning’ ”’, Moskal v. United States, 111 S. Ct.

461, 465 (1990) (quoting Richards v. United States,

369 U.S. 1, 9 (1962)). The rule is no different for

the INA: we “ ‘assume “that the legislative purpose

is expressed by the ordinary meaning of the words

used.” ’” INS v. Phinpathya, 464 U.S. 183, 189

(1984) (citations omitted).

Congress directed that the “Attorney General shall

not * * * return any alien to a country” that would

persecute the alien. When used, as here, in its transi-

tive mode, the word “return” means “to bring, send,

or put (a person or thing) back to or in a former

position”. Webster’s Third New International Dic-

tionary 1941 (1971). Here. congress has amplified

the meaning of “return” by adding after the word

“return”, the prepositional phrase “to a country

[where he would be persecuted)”; significantly, con-

gress made no mention of where the alien (who may

be anywhere, within or without the United States )

must be returned “from”. Of parallel significance,

the Kennebunkport Order itself directs the Coast

Guard to “return the vessel and its passengers fo

the country from which it came”. (emphasis added).

As we do with congress, we presume that the Presi-

dent of the United States uses words with their

“ordinary meaning”; thus, when the “return” di-

23a

rected by the President is to a persecuting country,

it is exactly the kind of “return” that is prohibited

by § 243(h) (1) of the INA.

Since the plain language of § 243(h) demonstrates

that what is important is the place “‘to”’ which, not

“from” which, the refugee is returned, and since

§ 243(h) (1) by its terms (a) applies to all “aliens”

regardless of their location, and (b) prohibits their

“return “ * * to a country” where they would likely

be persecuted, we conclude that the executive’s ac-

tion of reaching out into international waters, inter-

cepting Haitian refugees, and returning them with-

out determining whether the return is to their perse-

cutors, violates § 243(h) (1) of the Immigration and

Nationality Act.

The government does nvx offer a contrary view of

the term “return” in $ 243(h) (1); rather, it argues

that the 1980 amendment to § 243(h) merely “makes

the language read like Article 33” which, the govern-

ment assures us, prohibits the “return” only of refu-

gees who have entered the territory of the contract-

ing state. Thus, we must turn our attention to the

government’s reading of Article 33.

3. Article 33 of the Refugee Convention, which

is entitled “Prohibition of expulsion or return (‘re-

foulement’)”’, reads:

1. No Contracting State shall expel or return

(“refouler”) a refugee in any manner whatso-

ever to the frontiers of territories where his life

or freedom would be threatened on account of

his race, religion, nationality, membership of a

particular social group or political opinion.

2. The benefits of the present provision may

not, however, be claimed by a refugee whom

there are reasonable grounds for regarding as a

;

24a

danger to the security of the country in which

he is, or who, having been convicted by a final

judgment of a particularly serious crime, con-

stitutes a danger to the community of that

country.

United Nations Convention relating to the Status of

Refugees, 189 U.N.T.S. 150, 176 (1954). Although

the United States was not a party to the original

Refugee Convention, the provisions of that Conven-

tion were nonetheless ratified by the United States

when it acceded to the 1967 Protocol relating to the

Status of Refugees (‘Protocol’). 19 U.S.T. 6223,

6225.

The Supreme Court has recognized “that one of

Congress’ primary purposes [in passing the Refugee

Act of 1980] was to bring United States refugee law

into conformance with the 1967 United Nations Pro-

tocol Relating to the Status of Refugees, * * * to

which the United States acceded in 1968.” JNS v.

Cardoza-Fonseca, 480 U.S. at 436-37. See also INS

v. Doherty, 112 S. Ct. 719, 729 (1992) (Sealia, J.,

concurring) (“In 1980, Congress removed al! doubt

concerning the matter” of whether the Attorney Gen-

eral “honored the dictates” of Article 33.1): /NS v.

Stevic, 467 U.S. 407, 421 (1984) (the Refugee Act

of 1980 amended § 243(h), “basically conforming it

to the language of Article 33 of the United Nations

Protocol.” ) HCC. 1, slip op. at 4409 (same). Cy.

United States Dept. of State v. Ray, 112 S. Ct. 541,

543 n.1 (1991) (footnote).

In construing treaties, we use principles analogous

to those that guide us in the task of construing stat-

utes. Cf. United States v. Stuart, 489 U.S. 353, 371

(1989) (Scalia, J., concurring) (if “the Treaty’s

language resolves the issue presented, there is no

25a

necessity of looking further to discover ‘the intent

of the Treaty parties’”). Rather than having

evolved from a judicial common law, however, prin-

ciples of treaty construction are themselves codified,

in Article 31 of the Vienna Convention on the Law

of Treaties (also known as “the Treaty on Trea-

ties”), 1155 U.N.T.S. 331, 8 LL.M. 679 (1969),

entered into force Jan. 27, 1980. Although the

United States has not ratified the Vienna Convention,

it is a signatory. We have previously applied the

Vienna Convention in interpreting treaties, Day v.

Trans World Airlines, {ne., 528 F.2d 31, 36 (2d Cir.

1975) (Warsaw Convention), cert. denied, 429 U.S.

690 (1976), as has the United States Department of

State. See Letter from Edwin D. Williamson, Legal

Adviser, Department of State, to Timothy E.

Flanigan, Acting Assistant Attorney General 2 (Dec.

11, 1991) (regarding HRC v. Baker).

As with statutes, treaties are to be construed first

with reference to their terms’ “ordinary meaning

" * * in their context”, and “in light of their object

and purpose.” Vienna Convention, art. 31(1). The

plain meaning of treaty terms controls “ ‘unless “ap-

plication of the words of the treaty according to

their obvious meaning effects a result inconsistent

with the intent or expectations of its signatories.” ’ ”’

United States v. Stuart, 489 U.S. at 365-66 (citations

omitted). To stray from clear treaty language, there

must be “extraordinarily strong contrary evidence”.

Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S.

176, 185 (1982). According to Article 32 of the

Vienna Convention. “supplementary means of inter-

pretation”, which consist primarily of the prepara-

tory and conclusory circumstances of a treaty (the

international equivalent of legistative history) are to

26a

be turned to only as a last resort, and then only if

the primary tools of interpretation enumerated in

Article 31 of the Vienna Convention “leave[] the

meaning ambiguous or obscure” or lead to a “mani-

festly absurd or unreasonable result.”

The plain language of Article 33.1 of the Refugee

Convention leads us to conclude that, just as with

§ 243(h)(1), the word “return” means “return”,

without regard to where the refugee is to be returned

from, and, just as with § 243(h) (1), what is impor-

tant under Article 33.1 is where the refugee is to

be returned to. The Protocol’s definition of “refugee”’

is extremely persuasive on this point. Under the

Protocol, a “refugee” is “any person who * * * owing

to a well-founded fear of being persecuted * * * js

outside the country of his nationality”. Thus, a “ref-

ugee” under the Protocol, just as with “any alien”

under § 243(h)(1) of the INA, is defined not with

regard to his current location but with regard to his

past location.

Article 33.1’s prohibition against “return” plainly

applies to all refugees, regardless of location. This

reading is borne out by the language used in other

articles of the Refugee Convention that have a more

limiting effect on the term “refugee”. See, e.g., Arti-

cle 4 (“refugees within their territories”); Article

15 (“refugees lawfully staying in their territory’’) ;

Article 17.1 (same): Article 18 (“refugee lawfully

in their territory”); Article 19.1 ( “refugees lawfully

staying in their territory”); Article 21 (same);

Article 23 (same); Article 24.1 (same); Article 26

(“refugees lawfully in its territory”); Article 27

(“refugee in their territory”); Article 28 (“refugees

lawfully staying in their territory”); Article 31.1

(refugees who “enter or are present in their territory

°

27a

without authorization”); Article 32.1 (“refugee law-

fully in their territory”).

The government’s position, that Article 33.1 ap-

plies only to refugees who have entered the territory

of the contracting state, is therefore untenable in

view of the plain language of that section. Had the

parties to the Refugee Convention meant to limit its

application in that way, we would expect a wording

of that section in line with, for instance, Article 4

(“refugees within their territories”). But the con-

tracting states did not so limit Article 33.1; instead,

the term “a refugee” in Article 33.1 encompasses all

“refugees”. Accord Offices of the United Nations

High Commissioner for Refugees, Handbook on Pro-

cedures and Criteria for Determining Refugee Status

9 (1979) (“A person is a refugee within the mean-

ing of the 1951 Convention as soon as he fulfils the

criteria contained in the definition. This would nec-

essarily occur prior to the time at which his refugee

status is formally determined.”).

This reading of Article 83.1 is further supported

by the “object and purpose” not only of that article,

but also of the Refugee Convention as a whole. It is

clear that the 4vurpose of Article 33.1 is to prevent

all “refugees”, “in any manner whatsoever’, from

being put into the hands of those who would persecute

them. One of the considerations stated in the Pre-

amble to the Convention is that the United Nations

has “endeavoured to assure refugees the widest possi-

ble exercise of * * * fundamental rights and free-

doms.” The government’s offered reading of Article

33.1, however, would narrow the exercise of those

freedoms, since refugees in transit, but not present

in a sovereign area, could freely be returned to their

persecutors. This would hardly provide refugees

28a

with “the widest possible exercise” of fundamental

human rights, and would indeed render Article 33.1

‘a cruel hoax”’.

The Protocol, moreover, indicates that Article 33’s

nonrefoulement obligation must be enforced as writ-

ten. Although contracting states may make “reser-

vations’’ as to the terms of other articles in the Refu-

gee Convention, Article 33 is one of the few articles

which may not be tampered with by the contracting

states. See Protocol, art. VII.1. Additionally, Article

I.3 of the Protocol provides that the “Protocol shall

be applied by the States Parties hereto without any

geographic limitation”. In short, were we to accede

to the government’s offered reading of Article 33.1,

we would be endorsing a reading so limited as to be

fundamentally contrary to the Protocol’s, and to the

Refugee Convention’s, “object and purpose” as ex-

pressed by the plain language.

The government nonetheless offers us numerous

reasons to stray from the straight-and-narrow path

of plain language. First, it argues that the inclusion

of the French term “refouler’, placed in parentheses

after the word “return” in Article 33.1, “connotes

ejection of an alien from within the territory of the

Contracting State.” Brief for United States at 40.

In support of this argument, the government cites

from Cassell’s French Dictionary one of the many

meanings of “refouler’: “expel (aliens)”; and the

government contends that a refugee cannot be expelled

if he is not yet in a fountry.

Plaintiffs offer a somewhat different interpretation

of “refouler” from the Dictionnaire Larousse, which

suggests that it implies repelling or driving back an

alien who has not yet entered. Similar meanings of

“refouler” are found in Cassell’s. the government’s

29a

source. As the plaintiffs point out, the government’s

strained reading of Article 33.1 would forbid a state

to “expel or expel” an alien. Recognizing this anom-

aly, the government responds by suggesting that “ex-

pel or return (‘refouler’)” is to be read as a “unitary

whole”. However, the French text of the Refugee

Convention (which, according to Article 46 of the

Refugee Convention, is “equally authentic” to the

English text) undercuts the government’s reading;

the French text (“Aucun des Etats Contractants

n’expulsera ou ne refoulera’”’), by using “ou”, mean-

ing “or”, conclusively shows that expel (expulsera)

and return (refoulera) are to be read disjunctively,

not as a “unitary whole”.

The government, however, suggests that the plain-

tiffs’ reading of “refouler” renders the word “expel”

superfluous, since “return” would then encompass all

modes of return, by expulsion or otherwise. The

government may actually be correct in this assump-

tion, but the contracting states had good reason to

specifically include “expel”, for under the Refugee

Convention, it is a term of art. Article 32, which is

entitled “Expulsion”, forbids a contracting state to

“expel a refugee lawfully in their territory”. If Arti-

cle 33.1 had not contained the word “expel”, it might

not have been as clear that it applied to that specific

manner of “return” in addition to other manners.

Accord Guy S. Goodwin-Gill, The Refugee in Inter-

national Law 69 (1983) (“Refoulement is thus to be

distinguished 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.”).

The second reason that we should stray from the

plain language of Article 33.1. Says the goverrment,

30a

is that the President has interpreted the article as not

applying to “persons located outside the territory of

the United States”, Exec. Order 12,807, 57 Fed. Reg.

at 23,133, and his interpretation, Says the govern-

ment, “is entitled to great weight.” See, e.g.,

Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S.

at 185. However, it is by no means conclusive. /d.

at 184,

In this case, the executive branch’s interpretation

of Article 33.1 appears to be much closer to a litigat-

ing posture than it is to an authoritative interpreta-

tion, and in any event it diverges markedly from

the clear language of the Refugee Convention. More-

over, “it is not clear here precisely what position of

the [executive] this court ought to defer to”, Lewis

v. Grinker, No. 91-6176, slip op. 1475, 1507 (2d Cir.

Jan. 31, 1992), since the executive has previously

read Article 33.1 in a contrary fashion. In a Decem-

ber 11, 1991, letter to Acting Assistant Attorney

General Timothy E. F lanigan, which was “Re:

Haitian Refugee Center, Inc. v. Baker”, the Legal

Adviser of the Department of State wrote:

Dear Tim:

I am writing to provide you with the formal

opinion of the Department of State on the ques-

tion whether the non-refoulement obligation of

Article 33 of the 1951 U_N. Convention Relating

to the Status of Refugees (‘the Refugee Conven-

tion”) imposes obligations on the United States

with respect to refugees outside United States

territory. We have previously and publicly taken

the position that the obligation applies only to

persons within the territory of a Contracting

State. This remains our firm view. For the rea-

3la

sons indicated below, the Department respect-

fully requests that you reconsider and withdraw

the apparently contrary legal conclusion re-

flected in the opinion of the Office of Legal Coun-

sel of August 11, 1981.

Acting Assistant Attorney General Flanigan con-

curred in the Department of State’s request in a letter

sent the next day, although that letter seemed to rely

more extensively on the fact that, in the attorney gen-

eral’s view, the Protocol was not self-executing. What

is clear from this exchange of letters is that the attor-

ney general, at least from August 11, 1981, until

Haitian Refugee Center v. Gracey, 600 F. Supp. 1396

(D.D.C. 1985), aff'd on other grounds, 809 F.2d 794

(D.C. Cir. 1987), took the position that Article 33.1’s

nonrefoulement provisions did apply outside the terri-

tory of the United States. See 5 Op. Off. Legal Coun-

sel 242, 248 (1981) (“Individuals [intercepted on the

high seas] who claim that they will be presecuted

“ “ * must be given an opportunity to substantiate

their claims [under Article 33.1].”). Given the facts

that the executive branch has taken two contrary posi-

tions on Article 33.1’s prohibition of refoulement, and

that the second interpretation was “the sort of post

hoe litigation posture that is entitled to no deference”,

Lewis v. Grinker, slip op. at 1507, we would not feel

justified in viewing the second interpretation as the

sort of “extraordinarily strong contrary evidence”

needed to nullify the plain language of Article 33.1.

Third, the government argues that its reading of

Article 33.1 is actually supported by the text of Ar-

ticle 33, and of the Convention, as a whole. We reject

this contention as well. Article 33.2 carves out an

exception to Article 33.1, much like § 243(h) (2) (C)

of the INA does with § 243(h) (1). However, it does

32a

not follow that all refugees covered by Article 33.1

are potentially subject to the Article 33.2 exception ;

on the contrary, the latter section is limited (for good

reason of national security) to refugees “in” a certain

country. Moreover, the government’s argument that

the geographical limits that are placed on “refugees”

In other areas of the Convention tacitly limit the use

of “refugee” in Article 33.1 actually Supports a con-

trary reading, as we have noted, supra. With the

usual apologies to Cicero, Article 33.1’s silence on geo-

graphic limitation shouts loudly its proper meaning.

Cc f. Greenberg v. Board of Governors, No. 91-4200,

slip op. 4621, 4634 (2d Cir. June 19, 1992).

The government’s fourth and final assault on the

clear language of the Refugee Convention comes in

the form of what Justice Scalia recently called “that

last hope of lost interpretive causes, that St. Jude of

the hagiology of statutory construction, legislative

history.” United States v. Thompson ‘Center Arms

Co., ‘112 S. Ct. 2102, 2111 (1992) (Scalia, J., con-

curring). In this regard, the government relies on the

negotiating history of the Refugee Convention, as well

as the circumstances of the United States’ accession

to the Protocol.

The government’s argument is essentially the same

1987). There, Judge Edwards relied exclusively on

the negotiating history of the Refugee Convention to

conclude that “Article 33 in and of itself provides

no rights to aliens outside a host country’s borders.”

id. at 840. The linchpin of the government’s (and of

Judge Edwards’) argument is the statement of the

Netherlands’ representative at the final reading of the

33a

draft Refugee Convention, which appears id. at 840

n.133. For convenience, we reproduce it below:

Baron van BOETZELAER ( Netherlands) re-

called that at the first reading the Swiss repre-

sentative had expressed the opinion that the word

“expulsion” related to a refugee already ad-

mitted into a country, whereas the word “return”

(“refoulement’”) related to a refugee already

within the territory but not yet resident there.

According to that interpretation, article 28 would

not have involved any obligations in the possible

case of mass migrations across frontiers or of

attempted mass migrations.

He wished to revert to that point, because the

Netherlands Government attached very great im-

portance to the scope of the provision now con-

tained in article 33. The Netherlands could not

accept any legal obligations in respect of large

groups of refugees seeking access to its territory.

At the first reading the representatives of Bel-

gium, the Federal Republic of Germany, Italy,

the Netherlands and Sweden had supported the

Swiss interpretation. From conversations he had

since had with other representatives, he had

gathered that the general consensus of opinion

was in favour of the Swiss interpretation.

In order to dispel any possible an@iguity and

to reassure his Government, he wished to have it

placed on record that the Conference was in

agreement with the interpretation that the pos-

sibility of mass migrations across frontiers or of

attempted mass migrations was not covered by

article 33.

There being no objection, the PRESIDENT

[of the Conference] ru/ed that the interpretation

34a

given by the Netherlands representative should

be placed on record.

Conference of Plenipotentiaries on the Status of Refu-

gees and Stateless Persons, Summary Record of the

Thirty-fifth Meeting, U.N. Doc. A/CONF. 2/SR. 35,

at 21 (July 25, 1951) (emphasis in original).

This presents the biggest possible pitfall in the use

of legislative history: what do we do when the legis-

lative history is ambiguous? Although Judge Ed-

wards concluded that this legislative history was an

“agree[ment],” see Haitian Re fugee Center v. Gracey,

809 F.2d at 840, the above-quoted passage is am-

biguous on even this point. The Netherlands’ repre-

sentative asked that it be placed on record “that the

Conference was in agreement” with his interpreta-

tion, but the President ruled only that “the interpre-

tation given by the Netherlands representative should

be placed on record.” Judge Edwards’ reading of this

passage is a fair one; it would, however, be an equally-

fair reading to see this passage as simply recording

the views of a dissenting member. This is the view

of amicus Office of the United Nations High Commis-

siner for Refugees, whose Handhook on Procedure

and Criteria for Determining Refugee Status “pro-

vides significant guidance in construing the Protocol”.

INS v. Cardoza-Fonseca, 480 U.S. at 439 n.22,

Moreover, the concern of the Netherlands’ repre-

sentative is that his country “could not accept any

legal obligations in respect of large groups of refugees

seeking access to its territory.” He may well have

meant only that his country would be free to close its

borders in the face of a threat of mass migration,

leaving fleeing refugees the opportunity to make their

way (by land or air) to some other haven. But his

35a

concern not to accept “any legal obligations’, even if

shared by others considering the treaty, would not

have meant that his country could go beyond the nega-

tive act of closing its border and take the affirmative

steps of seizing refugees approaching the border and

forcibly carrying them back to the custody of those

from whom they are fleeing.

Thus, even if we were to turn statutory construc-

tion on its head, and look to the words of the statute

only when the legislative history is unclear, we would

have to draw the same conclusion: Article 33.1 ap-

plies to all refugees, just as §$ 243(h)(1) of the INA

applies to all aliens, no matter where found.

C. Article I] Powers and Other Justifications for the

Kennebunkport Order.

Finally, the government offers numerous reasons

why the summary return of Haitians is authorized by

law. We find none of these arguments sufficient to

overcome the will of Congress as expressed in § 243

(h)(1) of the INA, for “Tw]hen the President takes

measures incompatible with the expressed or implied

will of Congress, his power is at its lowest ebb, for

then he can rely on upon his own constitutional pow-

ers minus any constitutional power of Congress over

the matter”. Youngstown Sheet d& Tube Co. v.

Sawyer, 343 U.S. at 637 (Jackson J., concurring).

The government suggests that both the President’s

constitutional position as “Commander in Chief of the

Army and Navy of the United States”, U.S. Const.

art. II, § 2, cl. 1, and his “inherent authority as ‘ “the

sole organ of the nation in its external relations” ’ Kf

Brief for United States at 27 (quoting United States

v. Curtiss-Wright Export Corp., 299 U.S. 304, 319

lace ennai seem

OO ——————— — nh i

36a

(1936), in turn quoting Annals of Congress, 6th

Cong., col. 613 (Mar. 7, 1899) ), justify the Kenne-

bunkport Order. We disagree.

The Supreme Court said, in United States ex rel.

Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950),

that “[t]}he exclusion of aliens is a fundamental act

of sovereignty. The right to do so stems not alone

from legislative power but is inherent in the executive

power to control the foreign affairs of the nation.”

But the reason for that rule is absent here, for this

case does not deal with the sovereign right “to turn

back from our gates any alien or class of aliens.” Jd.

at 550 (Jackson, J., dissenting). To the contrary,

When seized, these aliens were far from, and by no

means necessarily heading for, our gates.

Similarly, we reject the government's arguments

that $§ 212(f) and 215(a)(1) of the INA, which

allow the President to “suspend the entry of all aliens

or any class of aliens” and to place such “reasonable

rules, regulations * * * limitations and exceptions”’

on the entry of aliens as he deems appropriate, also

allow him to order the summary return to their per-

secutors of aliens intercepted on the high seas. The

President’s power to regulate “entry” into the United

States is not questioned on this appeal. Even though

the executive’s actions have the practical effect of pro-

hibiting some Haitians’ entry into the United States,

they also have the effect of prohibiting the Haitians

from gaining entry into the Bahamas, Jamaica, Cuba,

Mexico, the Cayman Islands, or any other country in

which they might seek safe haven. By enforcing the

INA’s prohibition against forcible return of refugees,

we leave unimpaired the President’s authority to reg-

ulate entry into this country.

37a

The government says that this is “an absurd re-

sult”, since, under this reading, “the President could

authorize the Coast Guard to block the path of Haitian

vessels sailing toward Miami and force them back to

sea without regard for their safety, but could not

return them to land.” Brief for United States at 30.

We do not see the absurdity. This argument fails

because it embraces two unwarranted assumptions—

one express, the other not. While some intercepted

Haitians may in fact be heading for Miami, some may

also be heading toward other nations. The govern-

ment’s actions prevent the Haitians from seeking

asylum in any country. Also, the unstated premise—

that returning these Haitians to their persecutors is

somehow “in regard for their safety’—is itself ab-

surd.

Likewise, while the President is entitled to lead the

country’s external relations, he apparently did not

view the Kennebunkport Order as addressing a for-

eign policy concern; on the contrary, the executive

order specifically states that it was “intended only to

improve the internal management of the Executive

Branch.” Exec. Order 12,807, 57 Fed. Reg.at 23,134.

In any event, congress, wielding its “complete”, “ple-

nary” legislative power over immigration matters, see

Oceanic Navigation Co, v. Stranahan, 214 U.S. 320,

339 (1909); Boutelier v. INS, 387 U.S. 118, 123

(1967), has spoken directly to the question at issue

so that “[t]his is a job for the Nation’s lawmakers,

not for its military authorities.” Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. at 587. Similarly, we

reject any suggestion that the Kennebunkport Order

Was issued “pursuant to an express or implied au-

thorization of Congress”, id. at 635 (Jackson, J.,

concurring), for we can hardly infer congress’s per-

38a

mission for the executive to do what it expressly

forbade him from doing by § 243(h) (1) of the INA,

The government also argues that the Kennebunk-

port Order draws on the authority that congress

gave to the Coast Guard to compel compliance with

the laws of the United States on the high seas, includ-

ing the power to use “all necessary force to compel

compliance.” 14 U.S.C. § 89(a). According to the

government, the Haitians are somehow violating the

INA’s prohibition on illegal entry while afloat on the

international waters of the Windward Passage. This

argument is perplexing at best, and in any event pro-

vides no ground for sustaining the current interdiction

program.

Lastly, although not raised in so many words, there

is an undercurrent in the government’s brief to the

eifect that this case presents a “political question”

which is beyond the scope of judicial decisionmaking.

We strongly disagree, for this case involves a determi-

nation of whether the current interdiction program

itself (a creation of an executive order and thus of

law, see Acevedo v. Nassau County, NY, 500 F.2d

1078, 1084 n.7 (2d. Cir. 1974)') is consistent with a

federal statute. As our discussion above amply illu-

strates, there exists no “lack of judicially discover-

able and manageable standards” to apply. See Baker

v. Carr, 369 U.S. 186, 217 (1962). “The federal

courts may review a case such as this one to insure

that ‘the executive departments abide by the legis-

latively mandated procedures.’” Haitian Refugee

Center v. Gracey, 809 F.2d at 838 n.116 ( Edwards, J.,

concurring) (quoting International Union of Brick-

layers v. Meese, 761 F.2d 798, 801 (D.C. Cir. 1985) ).

39a

CONCLUSION

The plain language of § 243(h)(1') of the Immigra-

tion and Nationality Act clearly states that the United

States may not return aliens to their persecutors, no

matter where in the world those actions are taken. In

view of this, plaintiffs’ arguments regarding the self-

executing nature of Article 33.1 of the Refugee Con-

vention are largely academic, since § 243(h) (1) pro-

vides coextensive protection,

In light of our conclusion that § 243(h) (1) pro-

hibits the actions at issue, we need not address the

plaintiffs’ remaining arguments in favor of reversal.

The order of the district court is reversed, and the

case is remanded to the district court with instruc-

tions to enter an injunction prohibiting the defendants

from returning to Haiti any interdicted Haitian whose

life or freedom would be threatened on account of his

or her race, religion, nationality, membership in a

particular social group, or political opinion.

Reversed and remanded with instructions. The

mandate shall issue forthwith.

40a

JON O, NEWMAN, Circuit Judge, with whom Judge

Pratt joins, concurring |

I concur in Judge Pratt’s opinion and add these

few words primarily to clarify what I believe is the

Significance to the collateral estoppel issue of the

Government’s shift from the position it took when it

successfully opposed certiorari in Haitian Refugee

Center v. Baker, 949 F.2d 1109 (11th Cir. 1991)

(“HRC”), to the position it now takes with regard to

interdiction. The Government persuaded the Supreme

Court not to review the Eleventh Circuit’s decision

by assuring the Court that it would screen Haitian

refugees and bring to this country those who qualified

for asylum. Having made that representation to in-

sulate from review a decision that the screening pol-

icy was lawful, the Government now asks us to apply

collateral estoppel to a lawsuit challenging the new

policy of returning Haitians without screening—a

policy Judge Pratt and I believe is unlawful. If we

were to accede to that argument, we would be letting

the Government keep the Eleventh Circuit ruling

from the Supreme Court on a promise that is no

longer being honored and then let the Government

keep our decision from the Supreme Court by asse-t-

ing that we had correctly applied collateral] estoppel.

That would be gamemanship of the rankest sort

especially inappropriate in a lawsuit affecting peo-

ple’s lives.

Judge Walker in dissent, misperceives the point of

our discussion of the Government’s change of position

from what it asserted in opposition to certiorari in

Baker, First, he points out that the plaintiffs are not

entitled to certiorari. That is true, but entirely beside

the point. We are not suggesting that the HRC plain-

tiffs were entitled to have the Supreme Court review

4dla

the Eleventh Circuit’s decision. We are suggesting

that the Government cannot fend off such review on a

promise to pursue one policy, then abandon that

policy, and then use that unreviewed decision, insu-

lated from review by a representation no longer being

honored, to obtain a collateral estoppel ruling from

this Court as to the lawfulness of the new policy. I

do not question the Government’s right to change its

mind. But I do question its right to secure a litigating

benefit from the position it previously asserted and

then, after it has abandoned that position, to secure

another litigating benefit in this Court.

Judge Walker alsc suggests that what the plaintiffs

are really arguing is that the Supreme Court should

apply some sort of equity argument to grant review of

the collateral estoppel ruling he believes we should

make in this case. But that is not at all what the

plaintiffs are arguing. They are not so easily gulled.

They understand that the issue is not whether some

generous certiorari review should be applied to our

collateral estoppel ruling. Instead, the issue is whether

we should apply collateral estoppel in the first place.

We should not do so, especially since we disagree on

the merits with the Eleventh Circuit and since the

Government has now abandoned the promise it made

to the Supreme Court in fending off review of that

Circuit’s ruling.

With respect to the merits, I wish to add only one

point. Judge Walker maintains that section 243(h)

is confined to the territorial limits of the United

States because its reach is coextensive with section

208(a), which establishes asylum procedures for “an

alien physically present in the United States or at a

land border or port of entry,” 11 U.S.C. sec. 1158(a)

(1988). I can readily agree that the two provisions

are co-extensive in most of their applications. When

42a

Congress drafted both sections 208(a) and 243(h), it

Was most likely thinking primarily of those who would

arrive at our shores seeking asylum. The idea that

our country would seize aliens in foreign lands or on

the high seas and return them to their persecutors

was probably not in the contemplation of most legis-

lators. But the language of section 243(h), like the

language of the UN Protocol that it implements, goes

one step beyond the scope of section 208 (a') : It forbids

our country from laying hands on an alien anywhere

in the world and forcibly returning him to a country

in which he faces persecution.

Unlike section 243( h), the asylum procedure of

section 208(a) is explicitly limited to those in our

territory. But asylum procedures for entry of an

alien do not operate in the same manner as the pro-

hibition on returning an alien to face persecution.

Asylum is a discretionary decision of the Attorney

General. No alien, even one who satisfies the stand-

ard of “refugee,” has a right to asylum, or a right to

enter the United States. See Immigration and Natu-

ralization Service v. Cardoza-Fonseca, 480 U.S. 421,

428 n.5 (1987) (“It is important to note that the At-

torney General is not required to grant asylum to

everyone who meets the definition of refugee.”) (em-

phasis in original). If denied asylum, he may not

enter; he may go elsewhere, or, in an extreme case,

languish at our border. Cf. Shaughnessy v. United

States ex rel. Mezei, 345 U.S. 206 (1953) (excluded

alien detained at Ellis Island). But the command of

Section 243(h’) is absolute: the alien shall not be

returned to face persecution. That command cannot

be circumvented by seizing the alien as he approaches

our border, whether by land or by sea, and returning

him to his persecutors.

43a

WALKER, Circuit Judge, dissenting :

The plight of the Haitian plaintiffs in this case,

whose desperation forces them onto the ocean in un-

seaworthy boats, escapes no one who considers the

issues presently before us. I believe, however, that

plaintiffs have already had a day in court on these

issues and are collaterally estopped from seeking an-

other. Even if they were not, plaintiffs cannot succeed

in their challenge to the government’s interdiction _

repatriation policy implemented pursuant to a May

23, 1992 Rites Order. See Exec. Order 12,807, 57

Fed. Reg. 23,133 (1992) (the “May 23, 1992 Order”).

Plaintiffs rely on $ 243(h) of the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1253(h) (Supp.

1992), and Article 33 of the United Nations Conven-

tion Relating to the Status of Refugees, 189 U.N.T.S.

150 (1954) (“Article 33”). These provisions, how-

ever, bind the United States only with respect to

aliens who have physically reached our territory.

They grant no rights to plaintiffs in this case who

have been or will be interdicted on the high seas.

Whatever the merits of the policy of interdiction and

return, as part of the United States response to the

foreign policy crisis precipitated by the fall of the

Haitian government in September, 1991, and the en-

suing mass migration of Haitians in boats, I sit not

as a policymaker but as a judge. I believe that the

law does not support plaintiffs’ claim. I respectfully

dissent from the opinion of the majority granting

plaintiffs’ request for injunctive relief.

I. Collateral Estoppel

The first question on this appeal is whether Haitian

Refugee Center v. Baker collaterally estopps [sic]

44a

plaintiffs from raising certain issues. See Haitian

Refugee Center, Inc. v. Baker, 789 F. Supp. 1552

(S.D. Fla. 1991), rev'd 949 F.2d 1109, (11th Cir.

1991) (per curiam) (“HRC v. Baker I”), on remand,

789 F, Supp. 1579 (S.D. Fla. 1991), rev'd, 953 F.2d

1498 (11th Cir. 1992) (“HRC v. Baker Ll’), cert.

denied, 112 S. Ct. 1245 (1992). “Under the doctrine

of collateral estoppel . . . the judgment in [a] prior

suit [between the parties or their privies] precludes

relitigation of issues actually litigated and necessary

to the outcome of the first action.” Parklane Hosiery

Co. v. Shore, 439 US. 322, 326 n.5 (1979). “Once a

party has fought out a matter in litigation with an-

other party, he cannot later renew that duel.” Com-

missioner of Internal Revenue v. Sunnen, 333 U.S.

991, 598 (1948).

Collateral estoppel applies to class actions. Cooper

v. Fed. Reserve Bank of Richmond, 467 U.S. 867,

874 (1984). Indeed, the important judicial interests

in consistency, finality and economy that underlie the

doctrine, see Parl:lane Hoisery, 439 U.S. at 326; 18

C. Wright, A. Miller & E. Cooper, Federal Practice

and Procedure § 4416 at 138-39 (1981) (“Wright &

Miller”), apply with particular force in the class ac-

tion setting. “The policy behind the class action de-

vice 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.” Garcia v. Board of Ed., Sch. Dist.

No. 1, 573 F.2d 676, 679 (10th Cir. 1978). More-

over, the government may well have relied on HRC ».

Baker in instituting the major policy initiative set

forth in the May 23, 1992 Order. This further accen-

tuates the need for consistency and finality.

45a

A. Plaintiffs are collaterally estopped.

Collateral estoppel “prevents the parties’ relitiga-

tion of an issue that was (a) raised, (b) litigated,

and (¢) actually decided by a judgment in their prior

proceeding.” Prime Management Co., Ine. v. Stein-

egger, 904 F.2d 811, 816 (2d Cir. 1990). The HRC v.

Baker judgment meets all three criteria. In HRC v.

Baker, as in the current case, a class of Haitians sued

officials of the United States government which, pur-.

suant to Executive Order 12,524, 46 Fed. Reg. 48,109.

(Sept. 29, 1991), reprinted in 8 U.S.C.A. § 1182, was

“screening” interdictees to determine their refugee

status. The HRC v. Baker plaintiffs claimed that the

government’s procedures did not accord them the full

screening rights to which they were entitled under

law. Pursuant to this claim, they argued that INA

$ 243(h) extends extraterritorially, Article 33 is self-

executing, and that the Administrative Procedure Act

accords them judicial review. The Eleventh Circuit,

in upholding the government’s limited screening pro-

cedures, decided each of these issues in the govern-

ment’s favor. See HRC v. Baker I, 949 F.2d at 1110;

HRC v. Baker Il, 953 F.2d at 1505-1506, 1509-10.

These issues, which are present in the current case,

were therefore “raised,” “litigated” and “ ctually de-

cided” in HRC v. Baker, and collateral estoppel should

apply. See Prime Management Co., 904 F.2d at 816.

My colleagues, however, do not accept this position

and I address each of their concerns in turn.

B. Is the present class distinct from the HRC vy.

Baker Class?

To begin with, the majority concludes that the two

classes are different: “We do not believe that any of

the sub-groups of plaintiffs could fairly be charac-

46a

terized as a party to the Florida action: thus, the issue

they present to us are not barred by collateral estop-

pel.” Majority ». at 11-12. I do not agree.

The HRC v. Baker class, as certified, consisted of:

all Haitian aliens who are currently detained or

who in the future will be detained on U.S. Coast

Guard Cutters or at Guantanamo Nava] Base who

were interdicted on the high seas pursuant to the

United States Interdiction Program and who are

being denied First Amendment and procedural

rights.

In the present case, the district court certified a class

of “all Haitian citizens who have been or will be

screened in.” Since, under the interdiction policy, a

plaintiff must be detained before he or she is screened

in, it follows that the class of all those “who have

been or will be screened in” is wholly contained within

the class of all those “who are currently detained or

will in the future be detained.” The present class thus

fits neatly within the HRC v. Baker class.

The majority, however, focuses on the terms

“United States Interdiction Program.” The panel

states that the present plaintiffs “have been or will be

interdicted pursuant to a different interdiction pro-

gram. The one at issue in HRC v. Baker was a pro-

gram of preliminary screening before return; the

program put in place by the Kennebunkport Order is

one of summary return without screening.” The ma-

jority summarily concludes that “[t]his is a change

sufficient to avoid the class definition in HRC v.

Baker.” Majority Op. at 12.

I cannot accept this artificial distinction. To begin

with the obvious, it seems to me that the terms

“United States Interdiction Program” refer to the

47a

policy under which plaintiffs were interdicted and not

the screening policy to which they were later subject.

The term “interdiction program,” as it is used else-

where in the HRC v. Baker plaintiffs’ complaint, is

consistent with this reading. See Second Amended

Complaint, HRC v. Baker, 789 F. Supp. 1552 (No.

91-2653-Civ), © 2 (“Under an ‘interdiction program,’

the Coast Guard and the Immigration and Naturaliza-

tion Service (‘INS’) intercept vessels on the high seas

believed to be carrying Haitian aliens, many of whom

meet the standard for political asylum and who seek

refuge in our country.”). Moreover, the majority

neglects to mention that the two Executive Orders,

which purportedly create two entirely separate pro-

grams, were issued pursuant to a single Proclamation

dated September 29, 1981 and entitled “High Seas

Interdiction of Illegal Aliens.” Proclamation No.

4865, 46 Fed. Reg. 48,107 (1981), reprinted in 8

U.S.C.A. $ 1182 (West Supp. 1992). I read “United

States Interdiction Program” to refer to the unitary

program undertaken pursuant to Proclamation 4865.

The HRC v. Baker complaint bears out this reading.

See Second Amended Complaint, HRC v. Baker, 789

F. Supp. 1552 (No. 91-2653-Civ), § 32 (“On Septem-

ber 29, 1981 the President issued Proclamation 4865

. Which announced a program of ‘interdiction: on

the high seas of vessels transporting aliens.’”). The

government’s interdiction policy, which has continued

unabated both before and after the May 23, 1992

Order, thus constitutes one program, not two.

Even if I could distinguish between a pre- and a

post-May 23, 1992 “United States Interdiction Pro-

gram,” I would not find this distinction “sufficient to

avoid the class definition in HRC v. Baker.” Ma-

jority Op. at 12. Where the parties are in all material

48a

respects the same and stand in an identical position

Vis-a-Vis the issues, a purely formal distinction in the

naming of the class will not enable a party to avoid

issue reclusion. “Where the issues in separate suits

are the same, the fact that the parties are not precisely

identical is not necessarily fatal. As stated in Chi-

cago, RA. d& P. Ry. Co. v. Shendel, 270 U.S. 611, 620

(1926), ‘Identity of parties is not a mere matter of

form, but of substance. Parties nominally the same

may be, in legal effect, different .. . and parties nomi-

nally different may be, in legal effect, the same.’ ”

Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381,

402 (1940); see also St. Louis Typographical Union

v. Herald Company, 402 F.2d 553, 556 (8th Cir.

1968). In another formulation of this principle, it

has been stated that a party is “privy” to another,

and hence bound by issue preclusion, if he or she is

“so identified in interest with a party to former liti-

gation that he represents precisely the same legal

right in respect to the subject matter involved.” Jef-

ferson School of Social Science v. Subversive Activi-

ties Control Bd., 331 F.2d 76, 83 (D.C. Cir. 1963)

(citing cases); see also Donovan v. Estate of Fitz-

simmons, 778 F.2d 298, 301 (7th Cir. 1985) ; Gill and

Duffus Serv., Inc. v. A.M. Nural Islam, 675 F.2d

404, 405 n.3 (D.C. Gir. 1982); United States v.

Truckee-Carson Irrigation Dist., 649 F.2d 1286, 1303

(9th Cir, 1982); Southwest Airlines Co. v. Texas Int’!

Airlines, 546 F.2d 84, 95 & n.38 (5th Cir. 1977),

cert. denied, 434 U.S. 832 (1977).

These principles require issue preclusion in the pres-

ent case. The issues before us—the scope of INA

$ 243(h); the self-executing nature of Article 33; and

judicial review under the APA—are identical to those

before the HRC v. Baker court. Moreover, as a prac-

49a

tical matter, the only asserted difference between the

classes is that the HRC v. Baker class received some

minimal screening rights prior to return, whereas the

current plaintiffs receive none. The issues with which

we are concerned, however, do not in any way turn on

the existence or non-existence of a minimal screening.

Nor does the minimal screening granted the HRC v.

Baker plaintiffs have any bearing on the parties’ in-

centive to litigate the issues. Thus, both classes stand

in precisely the same legal position and assert the

same legal interests with respect to the issues involved.

Whether or not the identity of the parties varies

slightly in form, it is the same in substance. Sunshine

Anthracite Coal, 310 U.S. at 402. I therefore conclude

that collateral estoppel applies. Cf. Montana v. United

States, 440 U.S. 147, 159-61 (1979) (issue preclu-

sion applies even where facts have changed if prior

judgment not premised on those facts).

C. Have There Been Intervening Changes in the

Legal Context?

The majority, without further explanation, con-

cludes that “the Kennebunkport Order represents ‘an

intervening change in the applicable legal context’ ”

which renders issue preclusion inapplicable. Majority

Op. at 15. I believe that the panel opinion misapplies

this exception to issue preclusion.

Section 28(2)(b) of the Restatement (Second) of

Judgments (1982) states that relitigation of an issue

is not precluded where “a new determination is war-

ranted in order to take account of an intervening

change in the applicable legal context... .” The

paradigmatic case, as presented in the Restatement, is

that of a taxpayer held liable for tax under a certain

interpretation of the law, where that interpretation is

50a

later abandoned in favor of another which would not

require liability. If, after this “intervening change,”

ihe taxpayer once again challenges his liability, the

Restatement advises that issue preclusion should not

apply so that “the taxpayer will be treated in those

years in the same way as other taxpayers... .”

Restatement (Second) of Judgments, § 28 cmt. c. See

also Commissioner v. Sunnen, 333 U.S. 591, 599-600

(1948); 18 Wright & Miller § 4425 at 259-60.

The “intervening change” exception protects a party

from being bound by a prior litigation where the legal

grounds upon which that prior litigation was resolved —

have changed during the intervening period. In the

present case, while the May 23, 1992 order no doubt

constitutes a significant change in the lives of those

affected by it, it has no bearing on the merits of the

legal issues decided in HRC v. Baker and cannot con-

stitute an “intervening change” in the law upon which

that decision was grounded. Thus, the May 23, 1992

Order is not an “intervening change in the applicable

lezal context,” Restatement (Second) of Judgments

§$ 28(2)(b) (emphasis added), and does not enable

plaintiffs to avoid issue preclusion.

D. Would Issue Preclusion Result in Inequitable

Administration of the Laws?

Finally, the majority concludes that a new deter-

mination of the issues is necessary “to avoid inequi-

table administration of the laws.” Restatement

(Second) of Judgments § 28(2)(b). The panel be-

lieves that the Supreme Court may have premised its

denial of certiorari in HRC v. Baker on the govern-

ment’s representation that it would bring screened-in

individuals to the United States for further asylum

proceedings. The government later deviated from this

Hla

representation by holding second interviews at Guan-

tanamo Bay for Haitians with communicable disease,

such as the HIV virus, see Haitian Centers Council,

Inc. v. McNary, Nos. 92-6090, 92-6104, slip op. 4371,

4382 (2d Cir. June 10, 1992), and by inadvertently

returning some screened-in Haitians to Haiti. The

panel also makes the assertion, which I find unwar-

ranted, that the May 23, 1992 Order further violated

this representation by “permitt[ing] a policy, subse-

quently implemented, of no screening whatsoever.”

Majority Op. at 16. The panel concludes that, under

these circumstances, application of collateral estoppel

would inequitably deny plaintiffs the opportunity for

Supreme Court review.

One problem with this argument is that plaintiffs

are not entitled to certiorari, which is granted on a

discretionary basis. But even if the argument were

that the government had inequitably dampened plain-

tiffs’ chances of attaining Supreme Court review, it

seems to me that the proper redress is to be found in

the Supreme Court, not this one. Plaintiffs have no

cause to argue that this court should fail to apply

collateral estoppel. After all, there is no dispute that

they received full appellate court review in HRC v.

Baker. Their argument must be that they were denied

a full opportunity to gain Supreme Court review on

the merits, and that that Court, in deciding whether

to hear an appeal from our collateral estoppel ruling,

should, for reasons of equity, take the case up on the

merits as well. Equity does not require that we hesi-

tate to apply collateral estoppel. In sum, I believe that

the HRC v. Baker litigation operates as collateral

estoppel with respect to the following issues: (1)

whether INA § 243(h) applies extraterritorially, see

HRC v. Baker Il, 953 F.2d at 1509-10; (2) whether

52a

Article 33 is self-executing, see HRC v. Baker I, 949

F.2d at 1110; and (3) whether the Administrative

Procedure Act gives plaintiffs a right to judicial re-

view, see HRC v. Baker Il, 953 F.2d at 1503-1506.

The HRC v. Baker court decided all three issues

against plaintiffs.

Il. The Merits.

The majority holds that section 243(h)(1) of the

Immigration and Nationality Act and Article 33 of

the Convention relating to the Status of Refugees

support plaintiffs’ request for injunctive relief. I be-

lieve that these provisions do not apply to aliens on

the high seas. Thus, even if HRC v. Baker did not

collaterally estop plaintiffs, I would dissent on the

merits. —

A. Ambiguity in § 243(h)(1).

Prior to 1980, INA § 243(h), 8 U.S.C.A. 1253 (h)

(1970), read:

Withholding of deportation

(h) The Attorney General is authorized to with-

hold deportation of any alien within the United

States to any country in which in his opinion the

alien would be subject to persecution on account

of race, religion, or political opinion and for such

period of time as he deems to be necessary for

such reason.

The Refugee Act of 1980, Pub. L. No. 96-212, 94

Stat. 102 (1980), amended the provision to read, in

pertinent part, as follows:

(h) Withholding of deportation or return

58a

(1) The Attorney General shall not deport or

return any alien (other than an alien described

in section 1251(a)(4)(D) of this title) 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, na-

tionality, membership in a _ particular social

group, or political opinion.

8 U.S.C. § 1253(h) (Supp. 1992).

The Supreme Court has pointed out that the 1980

amendments effected three important changes in

§ 243(h):

The amendment (1) substituted mandatory lan-

guage for what was previously a grant of dis-

cretionary authority to the Attorney General to

withhold deportation after making the required

finding; (2) substituted a requirement that the

Attorney General determine that the ‘alien’s life

or freedom would be threatened’ for the previous

requirement that the alien “would be subject to

persecution,” and (3) broadened the relevant

causes of persecution from reasons of “race, reli-

gion or political opinion” to encompass “national-

ity” and “membership in a particular social

group” as well.

INS v. Stevic, 467 U.S. 407, 421 & n.15 (1984).

The panel believes that the plain language of the

provision effects a fourth major change, not noted by

the Supreme Court: extension of the provision’s reach

beyond the United States territory. Prior to the 1980

amendments, INA § 243(h) applied only to those in

deportation proceedings who were “within the United

54a

States.” See Leng May Ma v. Barber, 357 U.S. 185

(1958). The panel, however, concludes that the Refu-

gee Act’s addition of the words “or return,” and its

deletion of the phrase ‘within the United States,”

make § 243(h) (1) applicable to aliens outside the ter-

ritorial United States. The majority believes that the

plain language unambiguously supports this reading

thereby foreclosing review of the legislative history.

See Majority Op. at 19, 25-27.

I find the plain language ambiguous. While the

majority correctly states that the § 243(h)(1) term

“any alien,” as defined at 8 U.S.C. §1101(a) (3),

contains no geographic restrictions, Majority Op. at

19, these words do not require the majority’s position.

Congress used the same term “any alien” in § 243(h)

before the 1980 amendments where, at jeast since the

1958 Barber case, there has been no question as to

its non-extraterritorial application. Moreover, § 245

(h) (1), as amended in 1980, states that “[t]he Attor-

ney General shall not deport .. . any alien,” 8 U.S.C.

§ 1253(h)(1) (emphasis added). Yet no one could

seriously contend (and the majority does not contend )

that § 243(h)(1) proscribes the “deportation” of

aliens on the high seas. As I shall have occasion to

explain below, an alien can only be “deported,” in the

technical sense of that term, from United States terri-

tory. See infra at 16-18. The term “any alien” can-

not have a different meaning in § 243(h)(1) depend-

ing upon whether it is the object of the verb “deport”

or “return”. The key question, and to me the only

question of statutory interpretation necessary to de-

cide this case, therefore, is whether § 243(h) (1) simi-

larly prohibits “return” only from United States ter-

ritory. If the term “return” does contain such a

limitation, then the words “any alien” cannot alter it.

—_

55a

The majority acknowledges, as it has to, that the

statute does not define where § 243(h)(1) prohibits

“return” from. The panel concludes, however, that

“what is important is the place ‘to’ which, not ‘from’

which, the refugee is returned.” Majority Op. at 27.

This reasoning fails on two grounds. First, “our im-

migration laws have long made a distinction” between

those aliens within our territory, and those outside

of it. Barber, 357 U.S. at 187. In light of this history,

the majority errs by dismissing such distinctions as

not “important.” Secondly, the majority’s approach

flies in the face of the well-established principle that

where the statute is silent on a key interpretive issue

“we must look past the text to... [the] legislative

history.” H.J. Inc. v. Northwestern Bell Tel. Co., 492

U.S. 229, 239 (1989). Congress’ silence as to the loca-

tion from which § 243(h)(1) prohibits return thus

requires that we consult the legislative history.

Even if the plain language did unambiguously sup-

port plaintiffs’ position I would find that “there is a

‘clearly expressed legislative intention’ contrary to

that [plain] language.”’ United States v. James, 478

U.S. 597, 606 (1986). Under either rationale, I be-

lieve that examination of the legislative history is

necessary. I turn now to that task.

B. The legislative history clarifies the word “return”.

The Refugee Act of 1980 did extend the scope of

INA § 243(h), but not as broadly as the majority

supposes. Briefly stated, the legislative history dem-

onstrates that Congress intended, by means of the word

“return,” to expand the provision to encompass “ex-

cludable,” as well “deportable,” aliens. Excludable

aliens, like deportables, are “physically present in the

United States.” Liv. Greene, 767 F. Supp. 1087, 1088

56a

(1991). Thus, while Congress did broaden the pro-

vision’s reach it did not expand it to aliens physically

outside of United States territory. Section 243(h) (1)

as amended does not cover aliens interdicted on the

high seas such as the plaintiffs in this case who are

neither deportable nor excludable.

1. The terminology of immigration law.

A proper understanding of § 243(h)(1) requires

some familiarity with the concepts “deportation” and

“exclusion” as used in immigration law. The basic

distinction is straightforward. An alien who has ‘‘en-

tered” the United States is subject to deportation pro-

ceedings. An alien “who is physically present in the

United States, without making a legal entry,” how-

ever, is subject to exclusion proceedings. Li v. Greene,

767 F. Supp. 1087, 1088 (1991); see also, e.g., Leng

May Ma v. Barber, 357 U.S. 185, 187-88 (1958)

(exclusion proceedings appropriate for alien who has

not made legal entry even “though the alien is physi-

cally within the United States”); Bertrand v. Sava,

684 F.2d 204, 205 n.1 (2d Cir. 1982) (defining an

excludable alien as one “who has reached our border

but has not been formally permitted to enter the

country. Even though physically present in the coun-

try, he is ‘treated as if stopped at the border.’ ”’)

(citation omitted) ; Ledesma-Valdes v. Sava, 604 F.

Supp. 675, 680 (S.D.N.Y. 1985) (“Excludees, al-

though physically present in the United States, are

‘treated as if stopped at the border.’”). An alien

who has not yet physically entered United States ter-

ritory is, of course, subject neither to deportation nor

exclusion proceedings.

To complicate matters a bit, deportation is some-

times referred to as “expulsion” and has occasionally

5la

been used loosely to encompass both expulsion and

exclusion proceedings. Use of the term deportation

to encompass exclusion, however, “reflects none of the

technical gloss accompanying its use as a word of art.

... Barber, 357 U.S. at 187; see also Bertrand, 684

F.2d at 205 n.1. For present purposes, we properly

distinguish between “deportation” and “exclusion” as

these different concepts are recognized in immigra-

tion law.

“Entry,” the status which renders an alien subject

to deportation as opposed to exclusion, involves:

(1) a crossing into the territorial limits of the

United States, i.e. physical presence; 2(a) an

inspection and admission by an immigration offi-

cer or (b) actual and intentional evasion of in-

spection at the nearest inspection point; and (3)

freedom from official restraint.

Correa v. Thornburgh, 901 F.2d 1166, 1171 (2d

Cir. 1990) (quoting Matter of Ching and Chen, In-

terim Decision 2984, at 3 (BIA 1984)). Thus, in

practical terms, if the government wishes to remove

an alien whom it has inspected and admitted at the

border, or who has evaded inspection, and who is in

United States territory “free[] from official re-

straint,” id., it may do so only through deportation

proceedings. Where the government has detained the

alien at a border crossing, an airport or on a ship,

physically within United States territory or terri-

torial waters but without an “entry” having been

effected, it may remove him or her pursuant to an

exclusion hearing. This is true even where the Attor-

ney General has “paroled” a detainee into the coun-

try. See 8 U.S.C. § 1182(d)(5). In the eyes of the

law, such a person is deemed “stopped at the border,”

5Sa

Shaughnessy v. Mezei, 345 U.S. 206, 215 (1953), and

is not “within the United States,” Barber, 357 U.S.

at 189, even though physically present. The distinc-

tion is important because, as we have noted, “| dJe-

portation proceedings are generally more favorable to

the alien than exclusion proceedings.” Correa, 901

F.2d at 1171 n.5: see also Maldonado-Sandoval v.

INS, 518 F.2d 278, 280 n.3 (9th Cir. 1975).

2. The 1980 Amendments to INA § 243(h).

Prior to 1980, § 243(h) protected a refugee, in the

Attorney General’s discretion, only against “deporta-

tion . . . to any country in which in his opinion the

alien would be subject to persecution. ...” 8 U.S.C.A.

§ 1253(h) (1970). In Leng May Ma v. Barber, 357

U.S. 185, 187-89 (1958), the Supreme Court accord-

ingly held that § 243(h) covered only deportable, and

not excludable, aliens. See also INS v. Stevic, 467 U.S.

407, 415 (1984).

The Refugee Act of 1980 opened up § 243(h) to

excludables. The House Report explains quite clearly

that “section 203(e) [of the Refugee Act] amends

section 243(h) of the Act, relating to withholding of

deportation, to require (with some exceptions) the

Attorney General to withhold deportation of aliens

who qualify as refugees and who are in exclusion as

well as deportation proceedings.” H.R. Rep.-No. 608,

96th Cong., Ist Sess., 30 (1979) (emphasis added).

This piece of legislative history goes a long way to-

wards answering the interpretive ouestion before us.

It demonstrates that Congress intended to broaden

§ 243(h) (1) to apply to excludables, but did not ex-

tend the provision to aliens outside United States

territory.

59a

In addition, the reference to excludables clarifies

the meaning of “return.” To bring excludables within

the terms of § 243(h) Congress had to change the

statutory language in two ways. First, it had to delete

the words “within the United States” which, the Su-

preme Court had held, covered only deportables. See

Barber, 357 U.S. at 188. Secondly, it had to modify

the word “deportation” since this term, too, limited

the scope of § 243(h) to deportables, not excludables.

Id. at 187-90. To signify the intended broader scope

Congress therefore added the words: “or return.”

Statutes and case law had previously used “return” in

this manner. See 8 U.S.C.A. § 1182(a) (26) (1970)

(discussing “return [of excludable alien] to country

from which he came’); 8 U.S.C.A. § 1182(d) (6)

(1970) (“[t]he Attorney General shall prescribe con-

ditions . . . to control and regulate the admission and

return of excludable aliens... .”); Barber, 357 U:S.

at 187 (describing “the return of excluded aliens from

the country”); United States v. Murff, 176 F. Supp.

253, 256 & n.13 (S.D.N.Y. 1959) (“The return of

aliens who seek and who are denied admission into

the United States is governed by the exclusion pro-

visions, whereas the deportation of aliens . . . is gov-

erned by the expulsion provisions of the act.”). Thus,

just as “deport” refers to deportables, Congress in- -

tended “return” to refer to excludables.

The legislative history provides additional support

for this reading. For example, Congress’ decision in

the 1980 amendments to continue to address the pro-

vision to the “Attorney General,” 8 U.S.C. § 1253(h)

(1) (Supp. 1992), indicates that § 243(h)(1) as

amended was to be applied to deportables and exclud-

ables, aliens over which the Attorney General had

operational jurisdiction, and not to other refugees or

60a

potential refugees outside United States territory

who might be encountered by other United States gov-

ernment personnel, be they Coast Guard, military, or

the like.

Moreover, the INA grants excludables and deport-

ables the right to seek judicial review but does not

provide review for aliens outside United States terri-

tory, see 8 U.S.C. $§ 1105a, 1157, and those outside

United States territory will not likely gain review

under the APA, see HRC v. Baker, 953 F.2d at 1505-

1507. It is unlikely that Congress would have granted

rights under § 243(h) (1) to aliens outside the United

States without providing them a clear means to en-

force these rights. This further supports a limitation

of § 243(h)(1) relief to excludables and deportables

to whom judicial review is available.

The legislative history also suggests that the terri-

torial reach of § 243(h)(1) is co-extensive with

§ 208(a), a provision which establishes asylum pro-

cedures for “alien[s] physically present in the United

States or at a land border or port of entry,” i.e. de-

portables and excludables. 8 U.S.C. § 1158(a) (Supp.

1992). Under the heading “Asylum and Withholding

of Deportation,” the House Report states that

Since 1968, the United States has been a party

to the United Nations Refugee Protocol which

incorporates the substance of the 1951 Convention

of Refugees which seeks to insure fair and hu-

mane treatment for refugees within the territory

of the contracting states. . . . The Committee

Amendment conforms United States statutory

law to our obligations under Article 33 [of the

Convention] in two of its provisions: . . . section

208... fand] section 243(h).

6la

H.R. 608 at 17 (emphasis added). Thus, sections 208

and 243(h), respectively, meet the United States’ in-

ternational obligation to provide asylum procedures

for, and not to deport or return, “refugees within the

territory of the contracting states.” Jd. Case law,

and a leading commentator, also read § 243(h) (1)

as co-extensive with § 208(a). See HRC v. Baker,

789 F. Supp. at 1575 (citing INA § 208(a) for the

proposition that plaintiff’s claims under INA § 243(h)

“must fail because the statutory rights and protec-

tions asserted are reserved, by the very terms of the

statute, to aliens within the United States”); C.

Gordon & S. Mailman, 1 Immigration Law and Pro-

cedure, $1.03[6][a] at 1-33 (1991) (“[r]Jefugee

status is available [pursuant to INA § 207] to indi-

viduals screened and selected outside the United

States, while asylum [pursuant to INA § 208] and

withholding of deportation [pursuant to INA § 243

(h)] are remedies available to those who have already

reached our shores or borders and wish to secure per-

mission to stay.’’)

C. Article 33 does not create an extraterritorial

obligation.

Article 33 of the Convention relating to the Status

of Refugees, 189 U.N.T.S. 150 (1954), which the

United States ratified when it acceeded to the 1967

Protocol relating to the Status of Refugees, 19 U.S.T.

6223 (“Protocol”), further supports the conclusion

that Congress intended to limit § 243(h)(1) to de-

portables and excludables who are within United

States territory.

The Supreme Court has stated that “if one thing is

clear from the legislative history J”. the entire T980

[Refugee] Act, it is that one of Congress’ primary pur-

oF

62a

poses was to bring United States refugee law into

conformance with the 1967 United Nations Protocol

Relating to the Status of Refugees.” INS v. Cardoza-

Fonseca, 480 U.S. 421, 436 (1987). Specifically, Con-

gress intended § 243(h)(1), as amended, to be co-

extensive with Article 33 of the Convention. Plain-

tiffs concede this point, see Plaintiffs Brief at 14

(“Congress intended § 243(h) to have the same mean-

ing as Article 33 of the Refugee Convention”), the

legislative history overwhelmingly supports it, see S.

Rep. No. 96-256 at 20, reprinted in 1980 U.S.C.A.N.

at 161 (section 243(h) “is based directly upon the

language of the Protocol and it is intended that the

provision be construed consistent with the Protocol”) ;

H.R. 608 at 17 (“[t]he Committee Amendment [to

§ 243(h)] conforms United States statutory law to

our obligations under Article 33”), and the Supreme

Court has consistently taken this view, see INS v.

Doherty, 112 S. Ct. 719, 729 (1992) (Sealia, J., con-

curring); INS v. Stevic, 467 U.S. 407, 421 (1984).

Thus, if Article 33 extends only to aliens within the

territory of a contracting state, as I believe it does,

this powerfully supports a parallel reading of § 243

(h) (1). In turning to Article 33, I also address plain-

tiffs’ (and the majority’s) erroneous contention that

Article 33 itself creates extraterritorial obligations

for the United States. See Majority Op. at 27-40.

Article 33 of the Convention reads as follows:

Article 33—Prohibition of expulsion or return

(‘“‘refoulement”’ )

1. No Contracting State shall expel or return

(“refouler’) a refugee in any manner what-

soever to the frontiers of territories where his

63a

life or freedom would be threatened on account

of his race, religion, nationality, membership of

a particular social group or political opinion.

The majority’s “plain language” approach to the

word “return” as used in Article 33 treads the same

path as its analysis of INA § 243(h)(1), see Ma-

jority Op. at 30-31, and leaves the same unresolved

question as to where the Article prohibits “return”

from. Unlike INA § 243(h)(1), however, Article 33

includes next to the word “return” the explanatory

bracketed French term “refouler”. Refouler is not

susceptible to a plain language analysis for, as the

majority points out, French dictionaries provide con-

flicting definitions. Majority Op. at 33. The majority

itself fails to settle on a meaning for this word, con-

cluding that it is “ambiguous.” Majority Op. at 39.

We must, therefore, turn to the legislative history of

Article 33 in order to determine the meaning of

“refouler,” and consequently of “return”,

The Netherlands delegate, speaking at the second

and final reading of the Draft Convention, graciously

provides a precise definition :

Baron van BOETZELAER (Netherlands) re-

called that at the first reading the Swiss repre-

sentative had expressed the opinion that the word

“expulsion” related to a refugee already admitted

into a country, whereas the word “return” (“re-

foulment”) related to a refugee already within

the territory but not yet resident there. Accord-

ing to that interpretation, article 28 would not

have involved any obligations in the possible case

of mass migrations across frontiers—or of at-

tempted mass migrations.

64a

He wished to revert to that point, because the

Netherlands Government attached very great im-

portance to the scope of the provision now con-

tained in article 33. The Netherlands could not

accept any legal obligations in respect of large

groups of refugees seeking access to its territory.

At the first reading the representatives of

Belgium, the Federal Republic of Germany, Italy,

the Netherlands and Sweden had supported the

Swiss interpretation. From conversations he had

since had with other representatives, he had

gathered that the general consensus of opinion

was in favour of the Swiss interpretation.

In order to dispel any possible ambiguity and

to reassure his Government, he wished to have it

placed on record that the Conference was in

agreement with the interpretation that the possi-

bility of mass migrations across frontiers or of

attempted mass migrations was not covered by

article 33.

There being no objection, the PRESIDENT

ruled that the interpretation given by the Neth-

erlands representative should be placed on record.

Conference of Plenipotentiaries on the Status of Ref-

ugees and Stateless Persons, Summary Record of the

Thirty-Fifth Meeting, U.S. Doe. A/Conf. 2 SR.35

at 30 (1951) (emphasis added).

The Netherlands delegate’s comments unambigu-

ously restrict the terms “expel” and “return (‘re-

fouler’)” to aliens physically within the territory of

the contracting state. Moreover, the definition of

“return (‘refouler’)” as “already within the terri-

tory but not yet resident there” appears to correspond

65a

to American usage of the term “excludable” which is

“syvonymous with non-resident ... [and] describe[s]

the alien who has reached our border but has not

been formally permitted to enter the country.” Bert-

rand, 684 F.2d at 205 n.1 (emphasis added).

While the majority cannot point to any lack of

clarity in the statement of the Netherlands delegate,

it finds ambiguous the “ruling” of the Conference

President “that the interpretation given by the Neth-

erlands’s representative should be placed on the rec-

ord.” U.S. Doe. A/Conf. 2.SR.35 at 30. Judge Ed-

wards, concurring in Haitian Refugee Center v.

Gracey, 809 F.2d 794, 840 (D.C. Cir. 1987), has found

that this ruling constituted an “agree[ment]” among

the delegates. While acknowledging Judge Edwards’

“thoughtful and scholarly concurrence,” the majority

concludes that it is “an equally-fair reading to see this

passage as simply recording the views of a dissenting

member.” Majerity Op. at 39.

I am in accord with Judge Edwards. The President

of the Conference premised his ruling on “[t]here

being no objection,” a finding which alone would indi-

cate agreement. Additionally, the Conference recorded

the Netherlands delegate’s “interpretation,” not his

“views.”’ Indeed, I cannot fathom why a member

would seek to have his “views” formally recorded

since that is accomplished by the transcript itself.

Thus, I conclude with Judge Edwards that the Con-

ference formally recorded the delegate’s “interpreta-

tion” so as to show its agreement.

The discussion which immediately followed the

President’s ruling clears up any residual ambiguity:

MR. HOARE (United Kingdom) remarked

that the Style Committee had considered that the

word “return” was the nearest equivalent in

66a

English to the French term “refoulement”. He

assumed that the word “return” as used in the

English text had no wider meaning.

The PRESIDENT suggested that in accordance

with the practice followed in previous Conven-

tions, the French word “‘refoulement” (“‘refouler”

in verbal uses) should be included in brackets

and between inverted commas after the English

word “return” wherever the latter occurred in

the text.

He further suggested that the French text of

paragraph 1 should refer to refugees in the

singular....

The two suggestions made by the President

were adopted unanimously.

U.N. Doe. A/ Conf. 2.SR.35 at 30-31 (emphasis

added ).

These statements evidence the delegates’ unanimous

agreement that “return (‘refouler’)” be limited to

non-resident aliens within a contracting state’s terri-

tory. Only by reading Mr. Hoare’s “refouler” as dif-

ferent from Baron van Boetzelaer’s can one escape

this conclusion. Both, however, were attending the

same conference, and Mr. Hoare, who spoke immedi-

ately following the Baron, expressed no disagreement

with his interpretation. Thus, there is no basis to

suggest that they were interpreting the word differ-

ently. This negotiating history is to me unambiguous.

Moreover it is, to my knowledge, the only document

which directly explains the placement of “refouler’’

in Article 33; cansequently, it is the linch-pin to under-

standing the word “return” as utilized in that provi-

sion.

67a

Article 40 of the Convention, incorporated by refer-

ence in Article 7.4 of the Protocol, see Protocol, 19

U.S.T. at 6228, supports the same, limited reading of

Article 33. Article 40, entitled “Territorial applica-

tion clause,” provides that

(1) Any State may, at the time of signature,

ratification or accession, declare that this Conven-

tion shall extend to all or any of the territories

for the international relations of which it is

responsible. Such a declaration shall take effect

when the Convention enters into force for the

State Concerned.

189 U.N.T.S. 150. Thus, pursuant to Article 40, the

Convention does not automatically reach beyond a

contracting state’s sovereign territory even to those

other territories, such as colonies, which it admin-

isters. Nothing in Article 40 exempts Article 33 from

this proviso. It follows that Article 33 does not, as

the majority contends, extend automatically to aliens

throughout the globe. I note parenthetically that the

United States has taken no action pursuant to Article

40.

{ conclude that Article 33, which plaintiffs concede

to have the same territorial reach as § 243(h)(1),

applies only to aliens physically within the territory

of a given state. Most commentators adopt this view.

See Aga Khan, Legal Problems Relating to Refugees

and Displaced Persons, 149 Recuil Des Cours (Hague

Academy of International Law) 287, 318 (1976)

(only refugees “already within the territory of the

Contracting State” may avail themselves of right to

non-refoulement) ; Weis, The United Nations Declara-

tion of Territorial Asylum, 7 Canadian Yearbook

Int’] L., 92, 123-24 (1969) (adopting Netherlands

68a

delegate’s interpretation of “expel” and “return’’) ;

Note, The Right to Asylum Under United States Law,

80 Colum. L. Rev. 1125, 1126-27 (1980) (rights under

Article 33 of the Convention do[] not extend to refu-

gees outside the contracting country’s borders.’’).

D. Congress has authorized the President’s policy.

Plaintiffs assert that even if the President’s actions

do not contravene § 243(h)(1) and Article 33, they

are nonetheless without legal authority. The govern-

ment, in response, relies on INA §§ 212(f) and 215

(a) (1), which read as follows:

$1182(f) [INA § 212(f)] Suspension of entry

or imposition of restrictions by President. When-

ever the President finds that the entry of any

aliens or of any class of aliens would be detri-

mental to the United States, he may. . . suspend

the entry of all aliens .. . or impose on the entry

of aliens any restrictions he may deem appropri-

ate.”

$1185(a)(1) [INA § 215(a)(1)]. Travel Con-

trol of citizens and aliens

(a) Restrictions and prohibitions. Unless other-

wise ordered by the President, it shall be unlaw-

ful—(1) for any alien to depart from or attempt

to depart from or enter the United States except

under such reasonable rules, regulations, and or-

ders, and subject to such limitations and excep-

tions as the President may prescribe... .

The majority dismisses these provisions on the

grounds that the President’s authority to regulate

“entry” does not permit him to “return” refugees to

Haiti. Majority Op. at 41. The majority’s attempt to

distinguish between entry restrictions and repatria-

69a

tion, however, does not withstand scrutiny. In the

context of this case the two policies are inextricably

intertwined. As the record makes clear, most Hai-

tians seeking entry set sail on the 600 mile ocean

voyage in overcrowded, unseaworthy craft with a

demonstrable risk to life (evidenced in one case by a

May 17, 1992 capsizing with a loss of half of the

boat’s forty passengers). The President cannot simply

draw a “line in the sea” over which no Haitian vessel

may cross. To do so would risk additional sea dis-

asters with the attendant loss of life. Faced with this

difficult policy choice which, I note, courts are without

competency to evaluate, Harisiades v. Shaughnessy,

342 U.S. 304, 319 (1936), the President has deter-

mined that the only feasible way to regulate “entry”

is to promptly interdict and repatriate Haitian vessels.

Congress’ broad delegation of the power to “impose

on the entry of aliens any restrictions [the President]

may deem appropriate,” 8 U.S.C. § 1182(f), and to

establish “reasonable . . . orders” regulating entry,

8 U.S.C. § 1185(a) (1), easily encompass this policy

choice.

Insofar as the majority relies on the assertion that

the government may be interdicting Haitians seeking

entry to countries other than the United States, Ma-

jority Op. at 42, I note that this issue is not properly

before our Court. As plaintiffs themselves state:

“{t]his case . . . [involves] defendants’ blanket de-

cision to implement an immigration policy .. . in

massive disregard for [plaintiffs’] asylum claims.”

Plaintiff’s Brief at 30 (emphasis added). The plain-

tiffs in this case are seeking asylum in, and thus

“entry” into, the United States. This litigation does

not properly present the question of aliens seeking

passage to other nations.

70a

Accordingly, INA § 212(f) and § 215(a) (1) fully

authorize the challenged Presidential action. Even if

Congress had not authorized the May 23, 1992 policy,

I would find sufficient authority in the President’s

inherent powers over immigration, see Knauff v.

Shaughnessy, 338 U.S. 537, 542 (1950), and foreign

affairs, see United States v. Curtiss-Wright Export

Corp., 299 U.S. 304, 320 (1936).

KE. Conclusion.

The legislative history of § 243(h) (1), including as

it must Article 33 and its negotiating history, clears

up the textual ambiguities in this case and demon-

strates conclusively that the United States’ duty of

non-refoulement pertains only to deportable and ex-

cludable refugees physically present in its territory

and does not reach those, such as plaintiffs, who are

on the high seas. Thus, the INA does not prohibit

the May 23, 1992 policy; rather, it authorizes it in

§§ 212(f) and 215(a)(1). “When the President acts

pursuant to an express or implied authorization of

Congress, his authority is at its maximum for it in-

cludes all that he possesses in his own right plus all

that Congress can delegate.” Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jack-

son, J., concurring). Faced with such combined Presi-

dential and Congressional authority, I would deny

plaintiffs’ request for injunctive relief.

I am strengthened in this conclusion by the well-

established judicial reticience, in the absence of a

clear legal mandate, to grant relief which would un-

dermine the President’s authority in foreign affairs.

See Dep’t of Navy v. Egan, 484 U.S. 518, 529-30

(1988); Haig v. Agee, 453 U.S. 280, 290-92 (1981’) ;

7la

Chicago & Southern Airlines, Inc. v. Waterman

Steamship Corp., 333 U.S. 103, 109-11 (1948); see

generally, United States v. Curtiss-Wright Export

Corp., 299 U.S. 304, 315-22 (1936). The interdic-

tion and return policy embodied in the May 23, 1992

Order was not confined to an immigration crisis but

was squarely in the foreign affairs arena. To be

sure, the dramatic surge in Haitian migration follow-

ing the September 30, 1991 coup that overthrew the

democratically elected government of Bertrand Aris-

tide and that led to 34,000 interdictions from October

1991 through May 1992 (as compared with 25,000

interdictions over the previous decade) precipitated

an immigration crisis of substantial dimension. How-

ever, according to Under Secretary of State Kantor

in a May, 1992 affidavit filed in this action, the mas-

sive migration outflow also gave the de facto Haitian

government leverage against those nations who, like

the United States, were pressing for a return to

democracy in Haiti.

In a January 1992 affidavit filed in the HRC v.

Baker litigation, Assistant Secretary of State Aron-

son cited “credible” reports that the de facto Haitian

government “intend[ed] to encourage massive out-

migration” in order to pressure the United States and

the Organization of American States “into dropping

their concerted efforts . . . to restore constitutional

democratic government in Haiti.” Thus, the May 23,

1992 Order was part of the United States’ response

to a foreign policy crisis, and accordingly deserves

“the utmost deference.” United States v. Nixon, 418

U.S. 683, 710 (1974).

Finally, while I do not rely on it because I see no

need to do so in light of the clear purposes underlying

72a

the 1980 amendments to § 243(h) (1), I note that the

presumption against extraterritorial application, of

domestic legislation also weighs against plaintiffs’

claim. See EEOC v. Arabian Am. Oil Co., 111 S. Ct.

1227, 1230 (1991).

I respectfully dissent.

73a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 1789, 1790—August Term 1991

(Argued: May 13, 1992 Decided: June 10, 1992)

Docket Nos. 92-6090 and 92-6104

HAITIAN CENTERS COUNCIL, INC.; NATIONAL COALI-

TION FOR HAITIAN REFUGEES; IMMIGRATION LAW

CLINIC OF THE JEROME N. FRANK LEGAL SERVICES

ORGANIZATION OF NEW HAVEN, CONNECTICUT; Dr.

FRANTZ GUERRIER; PASCAL HENRY; LAURITON

GUNEAU; MEDILIEU SOREL St. FLEUR; DiEU RENEL;

MILOT BAPTISTE; JEAN Dor; RoGES NOEL, on

Behalf of themselves and all others similarly situ-

ated; A. IRIs VILNoR, on Behalf of herself and all

others similarly situated; MIREILLE BERGER;

YVROSE PIERRE; MATHIEU NOEL, on Behalf of

themselves and all others similarly situated,

PLAINTIFFS-APPELLEES,

——f) =

GENE McNary, Commissioner, Immigration and Nat-

uralization Service; WILLIAM P. Barr, Attorney

General; Immigration and Naturalization Serv-

ice; JAMES BAKER, III, Secretary of State; Rear

Admiral RoBeRT KRAMEK, Admiral KIME, Com-

mandants, United States Coast Guard; Commander,

U.S. Naval Base, Guantanamo Bay, DEFENDANTS-

APPELLANTS.

74a

Before:

CARDAMONE, PIERCE, and MAHONEY,

Circuit Judges.

PIERCE, Circuit Judge:

The Immigration and Naturalization Service

(“INS”) and various United States governmental

officials appeal from an order entered in the United

States District Court for the Eastern District of New

York, Sterling Johnson, Jr., Judge, granting a pre-

liminary injunction, and from a subsequent clarifying

order. For the reasons set forth below, we affirm, as

modified.

BACKGROUND

General Background

In September 1981, then-President Ronald Reagan

determined that “[t}he ongoing migration of persons

to the United States in violation of our laws is a

serious national problem detrimental to the interests

of the United States.”’ Proclamation No. 4,865, 46

Fed. Reg. 48,107 (1981), reprinted in 8 U.S.C.A.

§ 1182 note (West Supp. 1992). President Reagan,

by Executive Order 12,324 (“Executive Order”), au-

thorized the Secretary of State “to enter into, on be-

half of the United States, cooperative arrangements

with appropriate foreign governments for the purpose

of preventing illegal migration to the United States by

sea.” Exec. Order 12,324, 46 Fed. Reg. 48,109

(1981), reprinted in 8 U.S.C.A. § 1182 note (West

Supp. 1992).

On September 23, 1981, the United States entered

into an agreement with Haiti for “the establishment

of a cooperative program of interdiction and selective

a

+4

75a

return to Haiti of certain Haitian migrants and ves-

sels involved in illegal transport of persons coming

from Haiti.” Agreement Between the United States

of America and Haiti, September 23, 1981, U.S.-Haiti,

T.LA.S. No. 10,241. Under this agreement, United

States authorities are permitted to board a “Haitian

flag vessel” to make inquiries to determine the regis-

try, condition and destination of the vessel and the

status of those on board the vessel. If the United

States determines that a violation of its laws or the

laws of Haiti has been committed, it may detain the

vessel and those found on board. The United States is

permited to return the detained vessel and persons to

a Haitian port, or if circumstances permit, release

such vessel and migrants on the high seas to repre-

sentatives of the Haitian government. The agreement

provided that the United States “does not intend to

return to Haiti any Haitian migrants whom United

States authorities determine to qualify for refugee

status.” In addition, the United States received assur-

ances from Haiti that Haitians returned to their coun-

try would not be subject to prosecution for illegal

departure.

In September 1981, the United States Coast Guard

began interdicting vessels carrying Haitian aliens.

Generally, under the interdiction program, INS offi-

cers interview interdicted Haitians to determine if

there are any indications that a person might qualify

as a “refugee.” The purpose of this process, known

as “pre-screening,” is to determine whether the inter-

dicted alien has a “credible fear of persecution.” This

process was designed to take place when the inter-

dicted aliens are taken into custody on the Coast

Guard cutters on the high seas. Those individuals

76a

found to have a credible fear of persecution if re-

turned to Haiti are “screened in,” and are eligible for

transfer to the United States to pursue an asylum

claim. Those individuals found not to have a credible

fear are “screened out,” and are repatriated to Haiti.

On September 30, 1991, the democratically elected

government of Haiti was overthrown in a military

coup, and its President, Jean-Bertrand Aristide, was

forced into exile. Following the coup, reports surfaced

of human rights violations by the military in Haiti.

These alleged violations included killings, torture, ar-

bitrary arrests without a warrant and the destruction

of property. Allegedly, the Haitian miliary has tar-

geted President Aristides’ political supporters for

threats, intimidation and persecution. Following the

coup, the United States joined other nations in an-

nouncing the imposition of economic sanctions against

Haiti.

Since the coup, thousands of people have fled from

Haiti, mostly by boat. As a result of this substantial

increase in migration from Haiti, the number of inter-

dictions also increased. Following the coup, the

United States temporarily suspended repatriations

under the interdiction program. However, as of No-

vember 18, 1991, the United States resumed repatria-

tions.

The Baker Litigation

On November 19, 1991, the Haitian Refugee Cen-

ter, Inc. (“HRC”), filed a complaint in the United

States District Court for the Southern District of

Florida challenging aspects of the interdiction pro-

gram and seeking declaratory and injunctive relief

(the “Florida Action”). See Haitian Refugee Center,

77a

Ine. v. Baker, 953 F.2d 1498, 1502-03 (11th Cir.)

(per curiam), cert. denied, 112 S. Ct. 1245 (1992).

Named as defendants were: James Baker III, Secre-

tary of State; Rear Admiral Robert Kramek and

Admiral Kime, Commandants, United States Coast

Guard; Gene McNary, Commissioner, Immigration

and Naturalization Service; the United States Depart-

ment of Justice; the Immigration and Naturalization

Service; and the United States (“defendants in the

Florida Action’). The Florida Action complaint as-

serted claims allegedly arising under the Exectuive

Order, international law, the United Nations Protocol

Relating to the Status of Refugees, United States im-

migration statutes and the fifth amendment. More

specifically, HRC maintained that the INS had failed

to comply with its own guidelines for the identifica-

tion of refugees, promulgated pursuant to the Execu-

tive Order, and, thus violated the rights of the inter-

dicted Haitians. On that same day, the district court

granted HRC’s application for a temporary restrain-

ing order to maintain the status quo. This order pre-

cluded the defendants in the Florida Action from

repatriating Haitians held on board United States

vessels and held at the United States Naval Base,

Guantanamo Bay, Cuba.

Following expedited discovery, HRC filed a second

amended complaint and supplemental pleading add-

ing claims on behalf of a putative class of Haitian

plaintiffs. In addition to the claims asserted in the

initial complaint, the second amended complaint al-

leged claims under the first amendment and the Ad-

ministrative Procedure Act, 5 U.S.C. §§ 551-706

(1988) (“APA”). More specifically, the second

amended complaint alleged, inter alia, that the Flor-

78a

ida Action defendants had denied the HRC access to

the interdicted Haitians and argued that such denial

was a violation of the first amendment. In addition,

the second amended complaint claimed that the INS’

interviewing process was in violation of the APA. In

an order dated December 3, 1991, the district court

determined that the second amended complaint could

be maintained as a class action. On that same day,

the court granted a motion for a preliminary injunc-

tion, finding that there was a substantial likelihood

that the plaintiffs in the Florida Action would prevail

on the merits of HRC’s first amendment claim and

the Haitian plaintiffs’ claims under the Protocol. The

district court concluded that the fifth amendment

claims of the Florida Action plaintiffs “must fail.”

The defendants appealed.

On December 17, 1991, the Eleventh Circuit dis-

solved the preliminary injunction, finding it to be

overly broad with regard to HRC’s first amendment

claim, and remanded with instructions to dismiss the

Haitian plaintiffs’ claims under the Protocol. Haitian

Refugee Center, Inc. v. Baker, 949 F.2d 1109, 1111

(llth Cir. 1991) (per curiam). Later that evening,

the district court issued a temporary restraining order

based upon a reconsideration of the claims of the

plaintiffs in the Florida Action under the APA, where-

upon, the Eleventh Circuit stayed that order pending

appeal. Haitian Refugee Center, Inc. v. Baker, 950

F.2d 685, 687 (11th Cir. 1991) (per curiam).

On December 20, 1991, the district court entered an

order granting the plaintiffs in the Florida Action a

limited preliminary injunction on HRC’s first amend-

ment claim. This order was supplemented by an order

entered December 23, 1991 based upon the claims

79a

under the APA. These orders were stayed pending

appeal.’ On February 4, 1992, the Eleventh Circuit

dismissed the appeal from the December 17 order as

moot, and vacated the December 20 and December 23

orders. Further, the Eleventh Circuit remanded the

case with instructions that the district court dismiss

the complaint for failure to state a claim upon which

relief could be granted. See Baker, 953 F.2d at 1515.

On February 24, 1992, the Supreme Court denied

the Florida Action plaintiffs’ application for a stay of

the mandates and denied the Florida Action plaintiffs’

petition for a writ of certiorari. Haitian Refugee

Center, Inc. v. Baker, 112 8. Ct. 1245 (1992).

The Present Litigation

On March 18, 1992, the plaintiffs herein filed a com-

plaint in the United States District Court for the

Eastern District of New York (the “New York Ac-

tion’). Named as defendants are: Gene McNary,

Commissioner, Immigration and Naturalization Serv-

ice; William P. Barr, Attorney General; Immigration

and Naturalization Service; James Baker III, Secre-

tary of State; Rear Admiral Robert Kramek and

Admiral Krime, Commandants, United States Coast

Guard; and Commander, United States Naval Base,

Guantanamo Bay.

The plaintiffs in the present litigation are: Haitian

Centers Council, Inc.; the National Coalition for Hai-

tian Refugees, Inc.; Immigration Law Clinic of the

Jerome N. Frank Legal Services Organization of New

Haven, Connecticut (collectively the “Haitian Service

1The district court stayed the December 23 order. On

January 31, 1992, the Supreme Court stayed the December 20

order.

80a

Organizations”) ; several “screened in” Haitians on

behalf of themselves and others similarly situated

(“‘‘sereened in’ plaintiffs”); several “screened out”

Haitians on behalf of themselves and others similarly

situated (‘‘ ‘screened out’ plaintiffs”) ; and several im-

mediate relatives of Haitians detained at Guantanamo

Bay on behalf of themselves and others similarly sit-

uated (“ ‘immediate relative’ plaintiffs” ).

The complaint, inter alia, challenged the refusal by

the defendants in the New York Action to allow the

Haitian Service Organizations to have access to the

Haitian migrants on board Coast Guard cutters and

at Guantanamo Bay for the purpose of providing

them “legal counsel, advocacy, and representation” as

a violation of the first amendment. In addition, in

the New York Action, the complaint alleged that cur-

rent governmental conduct under the interdiction pro-

gram was in violation of United States immigration

statutes, the fifth amendment, the APA, certain

treaties and international agreements and executive

directives. |

On March 27, 1992, following oral argument, the

district court in the New York Action granted the

plaintiffs’ motion for a temporary restraining order.

The defendants argued that the rulings in the Florida

Action precluded prosecution of the claims asserted by

the New York Action plaintiffs; the district court

responded that it agreed that the Florida Action rul-

ings precluded assertion of the “screened out” plain-

tiffs’ claims. With regard to the Haitian Service

Organizations, the “screened in” plaintiffs, and the

“immediate relative” plaintiffs, the court ruled that

their claims were not barred by the Florida Action

rulings.

8la

On April 7, 1992, after conducting a hearing, the

court granted the application of the plaintiffs in the

New York Action and issued a preliminary injunc-

tion (“April 7 order’). The district court made,

inter alia, findings of fact as set forth below.

The United States operates a naval base at Guan-

tanamo Bay, Cuba. The area comprising the base is

occupied pursuant to a lease between the United States

and Cuba entered into in 1903, and amended by a

1934 treaty. The district court found that the United

States base at Guantanamo Bay is a “relatively open

base.” Besides military personnel stationed there,

there are “foreign nationals,” civilian contractors of

various nationalities and civilian United States em-

ployees present on the base.

The district court further found that, under the

interdiction program, the Coast Guard has taken

Haitian aliens interdicted on the high seas into cus-

tody and transported them to Guantanamo Bay. The

Haitian aliens at Guantanamo Bay live in camps sur-

rounded by razor wire fences. No Haitian alien is

free to leave Guantanamo Bay to travel to any coun-

try other than Haiti, even at their own expense. They

are not allowed access to telephones. Although the

United States officials at Guantanamo Bay have pro-

vided the Haitian aliens with various services includ-

ing educational programs, medical care and religious

services, they have denied the aliens access to legal

services. Congressmen, clergymen, church groups,

and members of the press have been allowed access to

the base and the Haitian aliens.

Further findings made were: under the interdiction

program, INS officers at some point interview inter-

dicted Haitians to determine whether they have a

82a

“credible” fear of political persecution if returned to

Haiti. The district court found that those determined

to have a credible fear are “screened in,” and are to

be brought to the United States so that they may

pursue asylum claims. Those found not to have a

credible fear are “screened out,” and are to be re-

patriated to Haiti. Repatriated Haitians face political

persecution and even death upon their return.

The district court also found that following the rul-

ings of the Eleventh Circuit in the Florida Action, the

government defendants therein, in a memorandum

submitted to the Supreme Court in opposition to the

plaintiffs’ petition for certiorari, explicitly represented

that “screened in” individuals would be brought to the

United States so that they could file applications un-

der the Immigration and Nationality Act (“INA”)

for asylum. Five days after the Supreme Court de-

nied certiorari in the Florida Action, the defendants

in the Florida Action changed this policy. On Febru-

ary 29, 1992, the General Counsel of the INS, Grover

Joseph Rees, issued a memorandum regarding second

interviews of “screened in” Haitians who have been

determined to have a communicable disease and thus

are subject to medical exclusion under the INA. The

district court found that the government tests all

Haitian aliens who have been “screened in” to deter-

mine whether they have a communicable disease such

as the HIV virus. According to the Rees memoran-

dum, “screened in” Haitian aliens who have been

found to have a communicable disease are to be given

a second interview to determine if they have “a well-

founded fear of persecution on account of race, re-

ligion, nationality, membership in a particular social

group, or political opinion.” The memorandum also

» 83a

states that this interview should “be identical in form,

and substance or nearly so as possible, to those con-

ducted by asylum officers to determine whether asy-

lum should be granted to an applicant already in the

United States.” However, while asylum applicants in

the United States may have attorneys present during

their asylum interviews, the “screened in” Haitians

subject to a second interview are not permitted access

to an attorney during their second interview at Guan-

tanamo Bay.

The district court found: when the INS officers

began conducting second interviews, the Haitian aliens

including the “screened in” plaintiffs herein began to

seek the assistance of counsel. According to the depo-

sition testimony of INS officers at Guantanamo Bay,

the presence of attorneys during the second interviews

could be useful, would be feasible and would not in-

terfere with the interviewing process. Thirty four

“screened in” Haitians who had tested positive for

HIV and had failed to establish a “well-founded” fear

of persecution during a second interview at Guan-

tanamo Bay would have been repatriated absent the

temporary restraining order. In addition, INS offi-

cials at Guantanamo Bay lost the records of a number

of Haitian aliens and, consequently, some Haitian

aliens had to be re-screened. After stating its findings

of fact, the district court proceeded to draw conclu-

sions of law. As an initial matter, it ruled that the

claims of the “screened in” plaintiffs, the “immediate

relative” plaintiffs, and the Haitian Service Organiza-

tions were not precluded by the Florida Action. Ad-

dressing the legal standard for the issuance of a pre-

liminary injunction, the court determined that the

“screened in” plaintiffs and the plaintiffs comprising

84a

the Haitian Service Organizations had made a showing

of irreparable harm by a preponderance of the evi-

dence. It also concluded that there were serious ques-

tions going to the merits with regard to the Hatian

Service Organizations’ first amendment claim and the

“sereened in” plaintiffs’ fifth amendment claim, but

it found that the “screened in” plaintiffs could not

state statutory claims under the INA. The court as-

sessed the balance of hardships, and found that they

tipped decidedly in favor of the plaintiffs. The court

thus concluded that the standards for the issuance of

a preliminary injunction had been satisfied, although

it reserved judgment of several claims raised in the

complaint. In addition, the court conditionally cer-

tified as a class the “screened in” plaintiffs.’

The district court in the New York Action granted

the plaintiffs’ application for a preliminary injunc-

tion on April 7, 1992. On April 8, 1992, the court

denied the defendants’ motion to stay the April 7

order. At that time, addressing a question as to

whether serious questions going to the merits was the

proper legal standard for the issuance of a prelim-

inary injunction when the government was the re-

sponding party, the court stated that even if the

2 The district court stated: “Although the Screened In

Plaintiff’s motion for class certification is granted at this

time, because the defendant challenges certain of plaintiff's

factual allegations, I will permit them to conduct discovery

and then this court will hold a hearing to ascertain whether

the class certification herein granted should be modified.”

Although the district court addressed the preclusive effect

of the Florida Action as to the “screened out” plaintiffs and

the “immediate relative” plaintiffs, it did not formally ad-

dress the issue of class certification with regard to either

group.

85a

appropriate standard were “likelihood of success on

the merits,” that standard also had been satisfied.

On April 14, 1992, this Court denied the defend-

ants’ motion for a stay of the April 7 order, but

granted an application to expedite the appeal. On

April 15, 1992, the district court issued an order to

“clarify the relief granted in the [April 7] Memo-

randum and Order.” Under this order, the New

York Action defendants were enjoined from:

(a) denying the Haitian Service Organiza-

tions immediate access, on Guantanamo, to any

member of the class of Screened In Plaintiffs

subject to reasonable time, place and manner lim-

itations (regardless of whether any _ such

Screened In Plaintiff has been furnished with an

exact date and time for interview) for the pur-

pose of providing them legal counsel, advocacy

and representation ;

(b) interviewing, screening, or subjecting to

exclusion or asylum proceedings any Screened In

Plaintiffs who has been denied an opportunity to

communicate with counsel; and

(c) repatriating any member of [the] class

of Screened In Plaintiffs who was subjected to a

second interview at which time s/he was

screened out, until such time as such individual

is afforded an opportunity to communicate with

Haitian Service Organizations and given another

interview thereafter.

Notwithstanding paragraphs (b) and (c)

above, the Government may, at any time, trans-

port members of the Screened In Plaintiff class to

the mainland United States in accordance with

the Government’s represetations to this court.

86a

The defendants in the New York Action filed a notice

of appeal from this order on April 18, 1992. The

New York Action defendants also moved for a stay

of the April 15 order as to paragraph (a). The dis-

trict court denied the defendants’ application. On

April 17, 1992, this Court denied an application by

the defendants for a stay. On April 22, 1992, the

Supreme Court granted the defendants’ application

for a stay of the preliminary injunction under the

April 7 order, as clarified by the April 15, order,

pending disposition of the appeal by this Court.

DISCUSSION

Preclusive E ffect of the Florida Action

On appeal, the defendants in the New York Action

(hereinafter “appellants”) claim, inter alia, that the

district court erred in concluding that the “screened

in” plaintiffs’ fifth amendment claims were not barred

by the Florida Action, and that the court erred in

issuing its preliminary injunction.

The appellants argue that the Florida Action re-

solved the question of whether the fifth amendment

confers procedural rights upon aliens abroad seeking

to enter the United States. They contend that the

“screened in” plaintiffs in the present case were mem-

bers of the class certified in the Florida Action and

thus their fifth amendment claims are barred by the

doctrine of collateral estoppel. We briefly review some

aspects of the Florida Action before addressing this

contention.

In the complaint filed November 18, 1991, in the

United States District Court for the Southern District

of Florida, the Haitian Refugee Center, Ince.

87a

(“HRC”) alleged that it sought to represent the inter-

ests of Haitians who had been intercepted by the

United States Coast Guard. HRC sought declaratory

relief that the Florida Action defendants’ practices of

“forcibly returning Haitian refugees to Haiti” vio-

lated, inter alia, the fifth amendment to the United

States Constitution. HRC subsequently filed a second

amended complaint, naming as additional plaintiffs

fifteen individual Haitians asserted to have been

“picked up at sea by the United States Coast Guard.”

According to the second amended complaint, fourteen

of these individual Haitians had been “screened out.”

The second amended complaint alleged that these four-

teen persons were subjected to an “interview [that]

was inadequate to allow [them] to meaningfully as-

sert [their] claim for asylum.” *

The plaintiffs in the Florida Action moved pursuant

to Fed. R. Civ. P. 23 to certify as a class:

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 base who

were interdicted on the high seas pursuant to the

United States Interdiction Program and who are

being denied First Amendment and procedural

rights.

In amemorandum of law submitted to the district court

in support of their request for class action certification,

the plaintiffs in the Florida Action asserted that the

fifteen new plaintiffs “are all presently members of

* It is unclear whether the fifteenth individual was “screened

out” but the amended complaint alleged that his asylum inter-

view lasted three minutes and that prior to his interview he

was advised “that no matter what he said, he would be re-

turning to Haiti.”

88a

the class and in every respect fairly and adequately

represent the interests of the class.” The memoran-

dum of law noted that the fifteen individual Haitians

“have all been ‘screened out’ and thus are injured by

the failure of the INS to observe rules and procedures

designed to ensure that no person who is a political

refugee will be returned without his consent.” The

memorandum asserted also that “[a]ll 15 plaintiffs

were subjected to the failure of the defendants to

comply with INS guidelines for screening asylum

claims.” The plaintiffs in the Florida Action asserted

that the lawsuit fulfilled the requirements for certifi-

cation as a class action under Fed. R. Civ. P. 23(a)

and 23(b) (2).

In an order dated December 3, 1991, the district

court in the Florida Action determined without ref-

erence to a specific provision of Fed. R. Civ. P. 23,

that the second amended complaint could be main-

tained as a class action. In another order issued that

same day, the district court ruled that to the extent

that the Florida Action plaintiffs alleged that the in-

‘erdiction anud repatriation activities of the Florida

Action defendants violated the fifth amendment of

the Constitution, those claims “must fail.” * There-

after the Eleventh Circuit, inter alia, vacated the in-

juctive orders of the district court issued December 20

and December 23 and remanded with instructions to

dismiss the complaint, whereupon the plaintiffs in the

Florida Action petitioned the United States Supreme

Court for a writ of certiorari. The defendants, in the

Florida Action, in a brief submitted to the Supreme

‘ This portion of the district court’s order was not appealed.

See Baker, 953 F.2d at 1503-04.

88a

Court in opposition to the Florida Action plaintiffs’

petition for a writ of certiorari stated:

Under current practices, any aliens who satisfy

the threshold standard are to be brought to the

United States so that they can file an application

for asylum under Section 208(a) of the Immigra-

tion and Nationality Act (INA), 8 U.S.C. 1158

(a). These “screened in” individuals then have

the opportunity for a full adjudicatory determin-

ation of whether they satisfy the statutory stand-

ard of being a “refugee” and otherwise qualify

for the discretionary relief of asylum. Any aliens

who are initially “screened in” but ultimately not

granted asylum are then to be returned to their

country of origin, consistent with procedures af-

forded under the INA.

The petition for certiorari was denied by the Supreme

Court on February 24, 1992. Baker, 112 S. Ct. at

1245. Five days later, INS General Counsel Grover

Joseph Rees issued a memorandum regarding the

processing of “screened in” Haitians on Guantanamo

Bay who were excludable for admission to the United

States by virtue of having a communicable disease of

public health significance.’ The memorandum directed

5 Section 1182 (a) (1) (A) (i) of 8 U.S.C. provides that aliens

who have a communicable disease of public health significance

(in accordance with regulations prescribed by the Secretary

of Health and Human Services) are excludable. The Attorney

General may waive the application of this section to any alien

who is the spouse, unmarried son or daughter, or minor law-

fully adopted child of a United States citizens, or of a lawfully

admitted alien, or to an alien issued an immigrant visa. 8

U.S.C. § 1182(g) (1) (A). The Attorney General may waive

the application of § 1182(a) (1) (A) (i) to any alien who has

j 90a

that the “screened in” Haitians be re-interviewed to

determine “whether he or she is a refugee within the

definition of INA § 101(a) (42)” and thus might war-

rant parole into the United States for asylum process-

ing.*

On March 18, 1992, the present suit was commenced

in the Eastern District of New York. The complaint

alleged, inter alia, that the first amendment rights of

the Haitian Service Organizations—which does not

include the Haitian Refugee Center, Inc., which was

a party in the Florida Action—were being violated.

The complaint also alleged that the New York Action

defendants had violated the plaintiffs’ right to obtain

counsel or to communicate with retained counsel in

pursuing their claims for political asylum in contra-

vention of the first and fifth amendments, and that

the New York Action defendants had denied the de-

tained Haitians equa! protection of the laws “by cre-

ating and operating an unauthorized separate and un-

equal, asylum track for Haitians only.” The com-

plaint sought, inter alia, an order requiring the

defendants “to transport all ‘screened in’ plaintiffs

expeditiously to the United States so that they may

be accorded asylum hearings with the full panoply

of statutory rights.” The complaint also sought a

a son or daughter who is a United States citizen, or to an

alien who has been issued an immigrant visa. 8 U.S.C.

§ 1182(g) (1) (B).

*The appellees assert that this second interview will

gather information that will inform the Attorney General’s

discretionary decision under 8 U.S.C. §1157(c)(3) on

whether to waive the medical exclusion to an otherwise ex-

cludable alien for humanitarian concerns. In order to be

eligible for waiver of the medical exclusion the alien must be

a “refugee.” See 8 U.S.C. § 1157(a) (3).

9la

deciaratory judgment that the New York Action de-

fendants’ alleged practices violated, inter alia, the

first and fifth amendments to the United States Con-

stitution. The New York Action plaintiffs moved

for class certification, with respect to the follow-

ing classes of plaintiffs: “fa]ll Haitian refugees

who previously [were] ‘screened in’ and [were] de-

tained on Guantanamo”; “fa]ll Haitian refugees who

[had] retained plaintiff Haitian Service Organiza-

tions as counsel, who [might] retain plaintiff organi-

zations as counsel in the future, or who [had] the

right to obtain assistance of counsel from other per-

sons’; “[a]ll Haitian refugees who [were] awaiting

screening or who [had] been ‘screened out’ and cur-

rently [were] awaiting forcible repatriation, while

being detained within territory subject to U.S. juris-

diction; and all lawful permanent residents and citi-

zens living in the United States who were also imme-

diate close relatives of members of any of the above

classes who had not been permitted to associate with

their relatives because of actions of the New York

Action defendants.

In the April 7 order, the district court conditionally

certified as a class the “screened in” plaintiffs under

Fed. R. Civ. P. 23(b) (2) and rejected the defendants’

contention that the doctrine of res judicata bound the

“screened in” plaintiffs from litigating this suit. The

district court observed that in the Florida Action the

motion for class certification was granted without a

hearing and without amending the class definition

and that the subject Haitians received neither notice

nor an opportunity to opt-out. The district court noted

that according to the Florida Action plaintiffs’ de-

scription of the class in their memorandum of law in

92a

support of the motion for class certification, the class

of Haitian plaintiffs in the Florida Action were

“sereened out” Haitians. The court found that the

“sereened in” plaintiffs, the “immediate relative”

plaintiffs and the Haitian Service Organizations were

new parties and not bound by the outcome of the

Florida Action. The court did find, however, that the

“sereened out” plaintiffs in the New York Action

were not a new class and that, consequently, these

plaintiffs were bound by the outcome of the Florida

Action and that their claims were barred under res

judicata.

The district court in the New York Action also de-

termined that res judicata was inapplicable because

the conduct about which the new parties complained

had not arisen at the time of the Florida Action. More

specifically, the district court concluded that the “INS

policy of conducting second interviews to determine

whether Haitians carrying the HIV virus have a well

founded fear of persecution was developed after the

[Florida Action] ended” and that “only recently

have the Haitian aliens sought the assistance of coun-

sel.” The district court found that the “screened in”

plaintiffs’ statutory right to counsel, first amendment

and fifth amendment due process and equal protec-

tion claims were new, that the Haitian Service Or-

ganizations’ first amendment claim was new and that

as a new class all the “immediate relative” plaintiffs’

claims were new.

On appeal, the appellants argue that the “screened

in’ plaintiffs herein were members of the class that

was certified in the Florida Action and that their

fifth amendment claims are barred by the doctrine

of collateral estoppel. We disagree.

93a

“{U]nder elementary principles of prior adjudica-

tion a judgment in a properly entertained class ac-

tion is binding on class members in any subsequent

litigation. Basie principles of res judicata (merger

and bar or claim preclusion) and collateral estoppel

(issue preclusion) apply. ... A judgment in favor

of either [the plaintiff class or the defendant] is

conclusive in a subsequent action between them on

any issue actually litigated and determined, if its

determination was essential to that judgment.”

Cooper v. Federal Reserve Bank of Richmond, 467

U.S. 867, 874 (1984) (citations omitted).

For the reasons discussed hereinbelow, we conclude

that the class defined in the Florida Action was

overly broad, that the issues presented in the present

suit were not actually litigated or determined in the

Florida Action and thus we decline to apply the doc-

trine of collateral estoppel to the “screened in” plain-

tiffs’ fifth amendment claims.

It cannot be said that the “screened in’ plaintiffs’

fifth amendment claims were fairly and adequately

represented within the meaning of Fed. R. Civ. P. 23

(a)(4) in the Florida Action. The Florida Action

plaintiffs alleged that the Florida Action defendants’

practices of forcibly returning interdicted persons to

Haiti violated the fifth amendment to the United

States Constitution in that the defendants in the

Florida Action did not comply with the guidelines

promulgated by the INS pursuant to the Executive

Order. In moving for class certification, the plain-

tiffs in the Florida Action presented fourteen

“screened out” persons as representative members of

the class. However, when the class was certified in

the Florida Action, it was the INS’ announced policy

94a

to bring “screened in” Haitians to the United States

so that they could file an application for asylum. In

fact, since the interviews conducted by United States

officials already had determined that numbers of

Haitians had a “credible” fear of persecution, re-

sulting in their being “screened in,” it is not at all

likely that the “screened in” Haitians would have al-

leved that the “interview [they were] afforded .. .

was inadequate to allow [them] to meaningfully as-

sert [their] claim for asylum,” as the “screened out”

Haitians had alleged in the second amended com-

plaint. Despite the broadly defined class and poten-

tially conflicting interests of the members in the pur-

ported class in the Florida Action, the class definition

was not modified by the district court prior to grant-

ing class certification, although “the presence of an-

tagonistic interests within [a Rule 23(b)(2)] class

can be handled by redefining the class or creating

subclasses under Rule 23(c) (4).” Charles A. Wright,

Arthur R. Miller & Mary Kay Kane, Federal Prac-

tice and Procedure: Civil § 1775 at 457 (2d ed. 1986).

We are aware that Rules 23(b)(2) and 23(d) (2)

do not require notice to allow a class member an op-

portunity to opt-out of a class action suit. See Pen-

son v. Terminal Transport Co., Inc., 634 F.2d 989,

993-94 (5th Cir. Unit B 1981). Nonetheless, in this

case we note that

4

an over-broad framing of the class may be so un-

fair to the absent members as to approach, if not

amount to, deprivation of due process... . [{]

Some of the difficulty may be sifted out by find-

ings of the trial court at or during the trial that

the plaintiffs adequately represents the class. But

t

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