Haitian Centers Council, Inc. v. McNary

969 F.2d 1350, 1992 WL 179508

Opinions

GEORGE C. 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 narrow 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, Inc. v. McNary, 969 F.2d 1326, 1329-1334 (2d Cir.1992) (HCCI), familiarity with which is assumed. This particular appeal, however, concerns events that primarily took place after the record in that case had been developed.

On May 23, 1992, President Bush signed an executive order which has come to be known as the “Kennebunkport Order”. In part, it reads as follows:

Section 1. The Secretary of State shall undertake to enter into, on behalf of the United States, cooperative arrangements with appropriate foreign 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 consultation, where appropriate, with the Secretary of Defense, the Attorney General, and the Secretary of State, shall issue appropriate instructions 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 persons 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, examine 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 it 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 arrangement 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.

(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 (including without limitation any right or benefit under the Administrative Procedure Act), legally 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 procedures to determine whether a person is a refugee.

/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 Kennebunkport 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 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 viola-tive of (1) § 243(h)(1) of the INA, (2) Article 33 of the 1951 Convention relating to the Status of Refugees, (3) the 1981 U.S.-Haiti Executive Agreement, (4) the Administrative Procedure 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 heightened 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”, “particularly hypocritical”, and “a cruel hoax”, he nonetheless 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, Article 33 imposes a mandatory duty upon contracting states such as the United States not to return refugees to countries in which they face political persecution”, our prior decision in Bertrand v. Sava, 684 F.2d 204, 218 (2d Cir.1982) held that the Convention’s provisions are not self-executing; thus, Judge Johnson felt he could not grant plaintiffs the requested 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 showing 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 Convention, the 1981 U.S.-Haiti agreement, the APA, and the fifth amendment’s equal protection component. The government addresses each of these contentions, 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 collateral 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, — U.S.-, 112 S.Ct. 1245, 117 L.Ed.2d 477 (1992); and (2) that the executive order falls within the President’s constitutional powers as commander-in-chief and his inherent authority over foreign relations, and was issued “pursuant to an express or implied authorization of Congress.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952) (Jackson, J., concurring).

We address the dispositive contentions in turn.

A. Preclusive Effect of HRC v. Baker.

The administration’s policy toward Haitian refugees 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), 23(b)(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, at 1337. In contrast, the class in the New York action, conditionally certified on April 7, 1992, was defined as “All Haitians who have been or will be ‘screened in’ ”. See id. at 1336.

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 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 borders, or any port of entry) could not assert a claim based on this section of the INA. Id. at 1510. Arguably, 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 repatriated even though previously screened-in;

(2) thousands of Haitians with credible fears of persecution who are being or will be interdicted, 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 repatriation 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 government argues that all of these plaintiffs are enveloped in the Florida class, and are thus collaterally estopped from relit-igating the § 243(h) issue and the Article 33 issue.

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 Reserve Bank of Richmond, 467 U.S. 867, 874, 104 S.Ct. 2794, 2798, 81 L.Ed.2d 718 (1984) (citing, inter alia, Restatement (Second) of Judgments § 41(l)(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 Management 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; otherwise, 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, 99 S.Ct. 645, 649 & n. 7, 58 L.Ed.2d 552 (1979).

We do not believe that any of the sub-groups of plaintiffs could fairly be characterized as a party to 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 Guantánamo Bay;

(b) interdiction “pursuant to the United States Interdiction Program”, and

(c)denial of first amendment and procedural rights (i.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” 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 pursuant 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, thereafter. 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 interdicted at sea and summarily repatriated, those class members will be denied screening.

There is at least one other person who is also outside the scope of the Florida class, but who is- nonetheless 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 Haitians, those plaintiffs were challenging the old program. Vilnor, and those she purports to represent, are challenging the new program, which was imposed under the Kennebunkport Order.

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 Yilnor plaintiffs do have standing because they are not on this motion asserting any right to an initial screening; rather, they are asserting a right, under § 243(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 situations change. The Vilnor plaintiffs might well, upon a future interception, be found to have been threatened 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 preclusion 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, 99 S.Ct. 970, 976, 59 L.Ed.2d 210 (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 inequitable administration of the laws.” Restatement (Seoond) Of Judgments § 28(2),(1982). We have accepted the view put forth in the Restatement’s. § 28(2), Staten Island Rapid Transit 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 precluded when there has been ‘an intervening change in the applicable legal context.’ ”). Where pure, “unmixed questions of law” are presented in successive actions, “preclusion may be inappropriate”, for “[ujnreflective invocation of collateral es-toppel * * * could freeze doctrine in areas of the law where responsiveness to changing patterns of conduct * * * is critical.” Montana v. United States, 440 U.S. at 162-63, 99 S.Ct. at 978. Accord Allen v. McCurry, 449 U.S. 90, 95 n. 7, 101 S.Ct. 411, 415 n. 7, 66 L.Ed.2d 308 (1980).

Especially where pure questions of law are presented, courts and commentators both have recognized that the interests of finality and judicial economy 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., 464 U.S. 165, 177, 104 S.Ct. 575, 582, 78 L.Ed.2d 388 (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 applicable legal context”, see Restatement (Seoond) Of Judgments § 28(2), which warrants “a new determination”. Id. Since the dis-positive question — whether § 243(h) of the INA applies to 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 plaintiffs from litigating this issue, and the public importance 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 Solicitor 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, at 1332. See also Brief for United States in Opposition to Certiorari at 3, HRC v. Baker, cert. denied, — U.S.-, 112 S.Ct. 1245, 117 L.Ed.2d 477 (1992) (same). After that representation, the Supreme Court denied certiorari on February 24,1992, Justice Blackmun dissenting. See HRC v. Baker, — U.S. -, 112 S.Ct. 1245, 117 L.Ed.2d 477 (1992).

Only five days later, as we noted in HCC I, at 1332, 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 Supreme Court. On the contrary, it permitted a policy, subsequently implemented, of no screening whatsoever.

A discretionary denial of review, of course, does not deprive a ruling of preclu-sive effect, see, e.g., Restatement (Second) of Judgments § 28, comment a; but the circumstances surrounding the denial of certiorari in the Florida litigation weigh significantly against granting that judgment preclusive 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 certiorari, 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 certiorari, and then (c) embarks on a completely contrary policy, that is a change of the type that ought to permit an inferior court, unfettered 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 the 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 contrary, views of two judicial circuits. The federal judicial hierarchy deserves this opportunity to consider 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.

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 general 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 threatened by persecution.

These amendments to this statute present us with two problems of construction and interpretation. First, we must determine whether Haitians intercepted in international waters fall within the scope 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, - U.S.-, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (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 expressed legislative intention” contrary to that language, which would require us to question the virtually-eonclusive presumption that congress meant what it said. United States v. James, 478 U.S. 597, 606, 106 S.Ct. 3116, 3121, 92 L.Ed.2d 483 (1986). But see INS v. Cardoza-Fonseca, 480 U.S. 421, 452, 107 S.Ct. 1207, 1223, 94 L.Ed.2d 434 (1987) (Scalia, J., concurring) (only when the plain language leads to a “patent absurdity”); Union Bank v. Wolas, — U.S. -, 112 S.Ct. 527, 534, 116 L.Ed.2d 514 (1991) (Scalia, J., concurring) (only to find “a ‘scrivener’s error’ producing an absurd result”). The government nevertheless tenders numerous reasons — the presumption 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 sufficient 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, 69 S.Ct. 575, 577, 93 L.Ed. 680 (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 v. Arabian American Oil Co., — U.S. -, 111 S.Ct. 1227, 1230, 113 L.Ed.2d 274 (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 U.S. 428, 440, 109 S.Ct. 683, 691, 102 L.Ed.2d 818 (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 (i.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 invoked 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 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 eliminate 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, e.g., Brewster v. Gage, 280 U.S. 327, 337, 50 S.Ct. 115, 117, 74 L.Ed. 457 (1930); 2A N. Singer, Sutherland Statutory Construction § 46.06 (5th ed. 1992).” American Nat’l Red Cross v. S.G., — U.S.-,-, 112 S.Ct. 2465, 2475, 120 L.Ed.2d 201 (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 States would have a strong domestic interest in keeping 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 reading would require us to rewrite § 243(h)(1) into its pre-1980 status, but we may not add terms or provisions where congress has omitted them, see Gregory ¶. Ashcroft, - U.S. -, 111 S.Ct. 2395, 2404, 115 L.Ed.2d 410 (1991); West Virginia Univ. Hosps., Inc. v. Casey, — U.S. -, 111 S.Ct. 1138, 1148, 113 L.Ed.2d 68 (1991), and this restraint is even more compelling when congress has specifically removed a term from a statute: “Few principles of statutory construction 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, 100 S.Ct. 1723, 1742, 64 L.Ed.2d 354 (1980) (Stewart, J., dissenting) (quoted with approval in INS v. Cardoza-Fonseca, 480 U.S. at 442-43, 107 S.Ct. at 1219). “To supply omissions transcends the judicial function.” Iselin v. United States, 270 U.S. 245, 250, 46 S.Ct. 248, 250, 70 L.Ed. 566 (1926) (Brandéis, J.).

The third reason urged by the government for not reading the statute literally, is that § 243(h)(1) is located in Part Y of the INA. This argument similarly 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 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)). Putting aside the fact that it ignores the plain language of § 243(h), this argument ascribes entirely unwarranted weight to the location of the provision: of course, the provisions of Part V “dealing with deportation” 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 generally 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 Immigration 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, however, § 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 application 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)(l)’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 presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” ’ ” INS v. Cardo-za-Fonseca, 480 U.S. at 432, 107 S.Ct. at 1213 (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. Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972), and we would find it difficult to believe that the proscription of § 243(h)(1) — returning an alien to his persecutors — was forbidden if done by the attorney general but permitted if done by some other arm of the executive 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 interception 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.

Section 243(h)(1) prohibits the government from both deporting and returning an alien. Virtually all prior 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 definition, we must interpret § 243(h)(1) by “giving the ‘words used’ their ‘ordinary meaning’ ”. Moskal v. United States, 498 U.S. 103, 111 S.Ct. 461, 465, 112 L.Ed.2d 449 (1990) (quoting Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (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, 104 S.Ct. 584, 589, 78 L.Ed.2d 401 (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 transitive 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 Dictionary 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, congress 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 to the country from which it came”, (emphasis added). As we do with congress, we presume that the President of the United States uses words with their “ordinary meaning”; thus, when the “return” directed 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 action of reaching out into international waters, intercepting Haitian refugees, and returning them without determining whether the return is to their persecutors, violates § 243(h)(1) of the Immigration and Nationality Act.

The government does not 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 government assures us, prohibits the “return” only of refugees who have entered the territory of the contracting 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 (‘refoulement’)” reads:

1. No Contracting State shall expel or return (“refouter”) a refugee in any manner whatsoever 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 danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes 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 Convention 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 Protocol Relating to the Status of Refugees, * * * to which the United States acceded in 1968.” INS v. Cardoza-Fonseca, 480 U.S. at 436-37, 107 S.Ct. at 1216. See also INS v. Doherty, — U.S. -, 112 S.Ct. 719, 729, 116 L.Ed.2d 823 (1992) (Scalia, J., concurring) (“In 1980, Congress removed all doubt concerning the matter” of whether the Attorney General “honored the dictates” of Article 33.1); INS v. Stevic, 467 U.S. 407, 421, 104 S.Ct. 2489, 2496, 81 L.Ed.2d 321 (1984) (the Refugee Act of 1980 amended § 243(h), “basically conforming it to the language of Article 33 of the United Nations Protocol.”); HCC I, at 1344 (same). Cf. United States Dept. of State v. Ray, - U.S. -, 112 S.Ct. 541, 543 n. 1, 116 L.Ed.2d 526 (1991) (footnote).

In construing treaties, we use principles analogous to those that guide us in the task of construing statutes. Cf. United States v. Stuart, 489 U.S. 353, 371, 109 S.Ct. 1183, 1194, 103 L.Ed.2d 388 (1989) (Scalia, J., concurring) (if “the Treaty’s language resolves the issue presented, there is no necessity of looking further to discover ‘the intent of the Treaty parties’ ”). Rather than having evolved from a judicial common law, however, principles of treaty construction are themselves codified, in Article 31 of the Vienna Convention on the Law of Treaties (also known as “the Treaty on Treaties”), 1155 U.N.T.S. 331, 8 I.L.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, Inc., 528 F.2d 31, 36 (2d Cir.1975) (Warsaw Convention), cert, denied, 429 U.S. 890, 97 S.Ct. 246, 50 L.Ed.2d 172 (1976), as has the United States Department of State. See Letter from Edwin D. Williamson, Legal Adviser, Department of State, to Timothy E. Flani-gan, 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 “application 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, 109 S.Ct. at 1191 (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, 102 S.Ct. 2374, 2379, 72 L.Ed.2d 765 (1982). According to Article 32 of the Vienna Convention, “supplementary means of interpretation”, which consist primarily of the preparatory and conclusory circumstances of a treaty (the international equivalent of legislative history) are to 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 “manifestly 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 important 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 * * * is outside the country of his nationality”. Thus, a “refugee” 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., Article 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 without authorization”); Article 32.1 (“refugee lawfully in their territory”).

The government’s position, that Article 33.1 applies 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 contracting states did not so limit Article 33.1; instead, the term “a refugee” in Article 33.1encompasses all “refugees”. Accord Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status 9 (1979) (“A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined.”).

This reading of Article 33.1 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 purpose 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 Preamble to the Convention is that the United Nations has “en-deavoured to assure refugees the widest possible exercise of * * * fundamental rights and freedoms.” 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 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 non-refoulement obligation must be enforced as written. Although contracting states may make “reservations” as to the terms of other articles in the Refugee Convention, Article 33 is one of the few articles which may not be tampered with by the contracting states. See Protocol, art. VIL 1. Additionally, Article 1.3 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 expressed 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 country.

Plaintiffs offer a somewhat different interpretation of “refouler ” from the Dicti-onnaire 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 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 anomaly, the government responds by suggesting that “expel 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 États Contractants n’expuls-era ou ne refoulera”), by using “ou”, meaning “or”, conclusively shows that expel (ex-pulsera) and return (refoulera) are to be read disjunctively, not as a “unitary whole”.

The government, however, suggests that the plaintiffs’ 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 assumption, 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 Article 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 International 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 government, 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 government, “is entitled to great weight.” See, e.g., Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. at 185, 102 S.Ct. at 2379. However, it is by no means conclusive. Id. at 184, 102 S.Ct. at 2379.

In this case, the executive branch’s interpretation of Article 33.1 appears to be much closer to a litigating posture than it is to an authoritative interpretation, and in any event it diverges markedly from the clear language of the Refugee Convention. Moreover, “it is not clear here precisely what position of the [executive] this court ought to defer to”, Lewis v. Grinker, 965 F.2d 1206, 1220 (2d Cir.1992), since the executive has previously read Article 33U in a contrary fashion. In a December 11, 1991, letter to Acting Assistant Attorney General Timothy E. Flanigan, 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 question whether the non-refoulement obligation of Article 33 of the 1951 U.N. Convention Relating to the Status of Refugees (“the Refugee Convention”) 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 reasons indicated below, the Department respectfully requests that you reconsider and withdraw the apparently contrary legal conclusion reflected in the opinion of the Office of Legal Counsel of August 11, 1981.

Acting Assistant Attorney General Flani-gan concurred 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 general’s view, the Protocol was not self-executing. What is clear from this exchange of letters is that the attorney 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 territory of the United States. See 5 Op. Off. Legal Counsel 242, 248 (1981) (“Individuals [intercepted on the high seas] who claim that they will be persecuted * * * must be given an opportunity to substantiate their claims [under Article 33.1].”). Given the facts that the executive branch has taken two contrary positions on Article 33.1’s prohibition of refoulement, and that the second interpretation was “the sort of post hoc litigation posture that is entitled to no deference”, Lewis v. Grinker, at 1220, 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 Article 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 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 reasons 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 contrary reading, as we have noted, supra. With the usual apologies to Cicero, Article 33.1’s silence on geographic limitation shouts loudly its proper meaning. Cf. Greenberg v. Board of Governors, 968 F.2d 164, 171 (2d Cir.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., — U.S. -, 1.12 S.Ct. 2102, 2111, 119 L.Ed.2d 308 (1992) (Scalia, J., concurring). 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 argument put forth by Judge Edwards in his thoughtful and scholarly concurrence in Haitian Refugee Center v. Gracey, 809 F.2d 794, 839-41 (D.C.Cir.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 draft Refugee Convention, which appears id. at 840 n. 133. For convenience, we reproduce it below:

Baron van Boetzelaer (Netherlands) recalled that at the first reading the Swiss representative had expressed the opinion that the word “expulsion” related to a refugee already admitted into a country, whereas the word “return” (“re-foulement”) 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 importance to the scope of the provision now contained 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 ambi-gúity and to reassure his Government, he wished to have it placed on record that the Conference was in agreement with the interpretation that the possibility 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] ruled that the interpretation given by the Netherlands representative should be placed on record.

Conference of Plenipotentiaries on the Status of Refugees 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 legislative history is ambiguous? Although Judge Edwards concluded that this legislative history was an “agree[ment]”, see Haitian Refugee Center v. Gracey, 809 F.2d at 840, the above-quoted passage is ambiguous on even this point. The Netherlands’ representative asked that it be placed on record “that the Conference was in agreement” with his interpretation, but the President ruled only that “the interpretation 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 Commissioner for Refugees, whose Handbook on Procedures and Criteria for Determining Refugee Status “provides significant guidance in construing the Protocol”. INS v. Cardoza-Fonseca, 480 U.S. at 439 n. 22, 107 S.Ct. at 1217 n. 22.

Moreover, the concern of the Netherlands’ representative 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 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 negative 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 construction 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 applies to all refugees, just as § 243(h)(1) of the INA applies to all aliens, no matter where found.

C. Article II 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 “[w]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 only upon his own constitutional powers minus any constitutional powers of Congress over the matter”. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 637, 72 S.Ct. at 871 (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” ’ ”, Brief for United States at 27 (quoting United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319, 57 S.Ct. 216, 220, 81 L.Ed. 255 (1936), in turn quoting Annals of Congress, 6th Cong., col. 613 (Mar. 7, 1899)), justify the Kennebunkport Order. We disagree.

The Supreme Court said, in United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 312, 94 L.Ed. 317 (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.” Id. at 550, 70 S.Ct. at 316 (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 persecutors 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 prohibiting 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 regulate entry into this country.

The government says that this is “an absurd result”, 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 government’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 absurd.

Likewise, while the President is entitled to lead the country’s external relations, he apparently did not view the Kennebunkport Order as addressing a foreign 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”, “plenary” legislative power over immigration matters, see Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909); Boutelier v. INS, 387 U.S. 118, 123, 87 S.Ct. 1563, 1566, 18 L.Ed.2d 661 (1967), has spoken directly to the question at issue so that “[tjhis is a job for the Nation’s lawmakers, not for its military authorities.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 587, 72 S.Ct. at 867. Similarly, we reject any suggestion that the Kennebunkport Order was issued “pursuant to an express or implied authorization of Congress”, id. at 635, 72 S.Ct. at 870 (Jackson, J., concurring), for we can hardly infer congress’s permission 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 Kennebunkport 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, including 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 provides 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 effect that this case presents a “political question” which is beyond the scope of judicial decisionmak-ing. We strongly disagree, for this case involves a determination 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 illustrates, there exists no “lack of judicially discoverable and manageable standards” to apply. See Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962). “The federal courts may review a case such as this one to insure that ‘the executive departments abide by the legislatively mandated procedures.’ ” Haitian Refugee Center v. Gra-cey, 809 F.2d at 838 n. 116 (Edwards, J., concurring) (quoting International Union of Bricklayers v. Meese, 761 F.2d 798, 801 (D.C.Cir.1985)).

CONCLUSION

The plain language of § 243(h)(1) of the Immigration 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 Convention are largely academic, since § 243(h)(1) provides coextensive protection.

In light of our conclusion that § 243(h)(1) prohibits 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 instructions 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.