Immigration Consequences of Undocumented Aliens' Arrival in United States Territorial Waters

• Court: Department of Justice Office of Legal Counsel
• Decided: October 13, 1993
• Status: Published

Opinion

Immigration Consequences of Undocumented Aliens’ Arrival in United States Territorial Waters

U n d o c u m en ted alien s in te rd ic te d w ith in th e tw e lv e -m ile z o n e that c o m p ris e s the U n ited S ta te s ’s te rn - to n a l sea are n o t e n title d to a h e a n n g u n d e r the e x c lu sio n p ro v is io n s o f the Im m ig ra tio n a n d N a ­ tio n a lity A ct

T h e Im m ig ra tio n an d N a tu ra liz a tio n S e rv ic e had the a u th o rity to p ro m u lg ate a n in te rp re ta tiv e rule c o n stru in g th e "te rrito ria l w a te rs ” o f th e U n ited S tales, as re fe rred to in sec tio n 287 o f th e IN A , to e x te n d for tw e lv e n au tical m iles

O ctober 13, 1993

M e m o r a n d u m O p in io n f o r t h e A t t o r n e y G e n e r a l

This memorandum responds to requests made by the Office o f the Associate Attorney General and the General Counsel’s Office of the Immigration and Natu­ ralization Service (“INS”) for our views on the consequences under the Im m igra­ tion and Nationality Act (“INA”) o f an undocumented alien’s arrival in United States territorial waters. 8 U.S.C. §§ 1101-1537. Specifically, we have been asked whether undocumented aliens who have been interdicted within the United States’s territorial waters are entitled to an exclusion hearing under section 236 of the IN A ,1 8 U.S.C. § 1226. W e have also been asked to review the IN S’s enforcement authority under INA section 287, 8 U.S.C. § 1357, and to assess the INS’s recent interpretive regulation, 8 C.F.R. § 287.1(a)(1) (1993), insofar as it purports to de­ fine the “external boundaries” of the United States under INA section 287. We understand that resolution o f these issues is of some urgency because the United States has been interdicting, within its territorial waters, vessels transport­ ing large numbers of undocumented aliens seeking admission into the United States from various foreign countries. These activities have raised the question whether the United States must provide exclusion proceedings for such aliens. Agencies represented on the W orking Group on Ocean Policy and the Law of the Sea, in particular the State Department and the United States Coast Guard, have expressed an interest in the issues. We have therefore invited, and received, the views of the State Department and the Coast Guard.

1 S ee M em orandum for O ffice o f Legal Counsel, D epartm ent of Justice, from G rover Joseph R ees III G eneral Counsel, Im m igration and N aiurahzation Service, Re: Im m igration C onsequences oj A r r iv a l into the Territorial Waters oj the U nited Suites (June 15, 1993) T og eth er w ith this cover m em orandum , the INS has subm itted a M em orandum for M aureen W alker, Bureau o f O ceans and International E nvironm ental and Scientific A ffairs, D epartm ent o f State, from the O ffice o f the G eneral C ounsel, Re- Inform ation R equest fr o m W orking G roup on Ocean P o h cv a n d Law oj the Sea (D ec 17, 1992) ( “ 1NS/OGC M em orandum ’*) and a draft m em orandum o f law (“ INS Draft M em orandum ").

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I. B ackground

The background to these requests is as follows. Historically, the United States adhered to the rule that the territorial sea extends three nautical miles out.2 In 1988, however, President Reagan, by proclam ation, extended the United States’s territorial sea to a distance of twelve nautical miles. See Proclamation No. 5928, 3 C.F.R. 547 (1989), reprinted in 103 Stat. 2981 (1989), (“the Proclamation”).3 Although the Proclam ation by its term s purported not to extend or otherwise alter existing Federal law or any jurisdiction, rights, legal interests, or obligations de­ rived therefrom , questions arose concerning the possible or alleged effects of the Proclam ation on domestic law or law enforcem ent.4 Among these questions are the two considered in this opinion, relating to the procedural rights under the INA of undocum ented aliens intercepted within twelve miles of the United States’s shores, and to the authority of the IN S to board and search sea vessels suspected of transporting undocum ented aliens if such vessels are found within that twelve mile zone. The IN S ’s former General Counsel has taken the position that the Proclamation operated so as to extend the scope o f the INA to the new twelve mile limit of the territorial waters. Specifically, the INS argues in the submissions considered here that an entitlem ent to an exclusion proceeding now arises whenever an undocu­ mented alien arrives within the twelve mile limit. As the INS acknowledges, how­ ever, its past practice and views on this subject have not been consistent. In 1980, an INS m em orandum to this O ffice concerning the treatment of Cuban refugees m aintained that an alien apprehended within the territorial waters before landing “does not appear to have a right to apply for asylum” under the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (“Refugee Act”), and could be towed to a third country where he or she would not face persecution. See Memorandum for John Harm on, A ssistant Attorney General, Office of Legal Counsel, from David Crosland, Acting Commissioner, INS, Re: Cases on Illegal Entry to Cubans in Boats at 1 (May 6, 1980) (“INS C uba M em orandum ”). However, a different INS position is reflected in a 1986 m emorandum concerning procedures to be followed under Executive Order No. 12324, 4 6 Fed. Reg. 48,109 (1981), which provided for the return of Haitians interdicted on the high seas, with the exception of refugees. See M em orandum for Alan C. N elson, Commissioner, INS, from Maurice C.

2 S e e A rg e n tin e R ep u b lic v. Am erada H e ss Shipping C orp , 488 U S 428, 441 n.8 (1989), C u n a rd S.S. Co. v M e llo n , 262 U .S. 100, 122 (1923), U n ite d States v. P o sta l, 589 F.2d 862, 869 (5th C i r ), cert denied, 4 44 I! S 832 (1979). T h e ' ‘te rn to n a l” or '‘m a rg in a l’’ sea is th e belt o f w ater im m ediately adjacent to a na­ tio n ’s co ast. S ee R e sta te m en t (T h ird ) o f the F o reig n R e la tio n s L a w o f the U nited States, § 5 1 1(a) (1986). 1 O n th e P roclam ation, see Argentine R e p u b lic , 488 U.S. at 441 n 8, John E. N oyes, U nited Stales o f A m e n ta P r e sid e n tia l P ro cla m a tio n No. 5 9 2 8 : A 12-M ile U.S. T erritorial Sea, 4 In t’l J. E stu a n n e and C oastal L. 142 (1989); C om m ent, The E xtension o f the U n ited Slates T erritorial Sea R easons a n d E ffects, 4 C onn . J I n t’l L. 6 9 7 (1989). 4 S e e g e n e ra lly H ea rin g B e fo re the Suhcom m on O cea n o g ra p h y and G reat Lakes o j the H ouse Com m , on M e rch a n t M a rin e a n d F isheries, 101st C ong. 4 9 , 60 (1989) (“ 1989 H earings”)

78 Im m igration C onsequences o f U ndocum ented A lie n s' A rrival in U.S. Territorial W aters

Inman, Jr., General Counsel, INS, Re: Interdiction o f Aliens (Feb. 21, 1986) (“INS Haiti Memorandum”). Executive Order No. 12324 stated that its provisions for the interdiction-and-return of Haitians “are authorized to be undertaken only outside the territorial waters of the United States.” 46 Fed. Reg. at 48,109. Following the terms of that Executive Order, the INS memorandum stated that “[individuals in­ terdicted within the territorial waters of the United States are transported to a port o f the United States for an adjudication of their immigration status pursuant to the Immigration and Nationality Act.” INS Haiti M emorandum at 3. The m em oran­ dum further asserted that “it is rather well settled that individuals within our territo­ rial waters may not be forcibly removed to the high seas.” Id. at 4.5 Thus, the IN S ’s current position is at variance with its views as of 1980 — though not with its views as of 1986 — as well as being inconsistent with the position of the State Department and the Coast Guard.6 W e conclude in Part II below that an undocumented alien who is intercepted within the twelve mile zone now comprising the United States’s territorial waters is not entitled to an exclusion hearing under the INA. W e base this conclusion pri­ marily on an examination of the text of the statute — most importantly, its explicit requirements for exclusion proceedings. See INA sections 235, 236, 8 U.S.C. §§ 1225, 1226. We also examine the statute’s provisions for asylum and withholding o f deportation, and conclude that these provisions are consistent with, and indeed support, our reading o f the statutory sections regarding exclusion. See Refugee Act, §§ 201(b), 202(e), 94 Stat. at 105, 107 (codified as amended at 8 U.S.C. §§ 1158, 1253). We then consider the IN A ’s definition of the term “United States,” INA section 101(a)(38), 8 U.S.C. § 1101 (a)(38), and reject IN S’s contention that this definition, coupled with the Proclamation, compels the conclusion that the IN A ’s procedural protections must apply to undocumented aliens who have entered the twelve mile zone. W e also consider, and reject, IN S’s alternative claim that the jurisdictional section of the Outer Continental Shelf Lands Act, 43 U.S.C. § 1333, (“OCSLA”) operates to extend the INA — and in particular the right to an exclu­ sion hearing — to the limit of the territorial waters. Finally, we scrutinize the Proclamation itself, and conclude that it has no effect on the procedural entitlement that the INA provides to undocumented aliens.

5 N o authority was cited for this proposition 6 In a letter responding to this O ffice’s invitation to su b m it view s on this issue, the State D epartm ent stated, “ [a]t a m inim um , it appears that the conduct o f INS exclusion and deportation procedures by their very nature are only relevant once an alien has reached the land territory of the U nited States.” L etter for R obert D elahunty, A cting D eputy A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, from M aureen W alker, Chief, D ivision o f M arine Law & Policy, B ureau o f O ceans and International Environm ental and S cientific A ffairs, D epartm ent o f State at 2 (July 28, 1993) (“ State D epartm ent S ubm ission"). T he State D epartm en t’s view s are discussed further, infra, p 87 n.23. In a sim ilar subm ission, the C oast G uard took the position that undocum ented aliens interdicted w ithin the three m ile zone encom passed by the pre-1988 territorial w aters w ould be en titled to exclusion proceedings, b u t that those interdicted in the w aters beyond that zone would not be entitled to such proceedings. L etter for R obert D elahunty, A cting D eputy A ssistant A ttorney G eneral, O ffice o f Legal Counsel, from David K antor, C hief, M aritim e and International Law D ivi­ sion, U nited States C oast G uard at 1 (A ug. 10, 1993).

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In Part III below, we review the INS interpretative regulation, 8 C.F.R. § 287 (1993), that purports to construe the meaning o f the “external boundaries” of the United States, as that term is used in INA section 287, 8 U.S.C. § 1357. The latter statute sets forth various investigative and enforcement powers o f the INS. O f particular relevance, it empowers the INS to conduct certain warrantless searches within “a reasonable distance from any external boundary of the United States.” INA section 287(a)(3), 8 U.S.C. § 1357(a)(3). W e conclude that the INS had the authority to construe that section in a manner that reflected the enlargement of the United States’s territorial waters under the Proclamation, and we offer two theories to justify that result. We also note an ambiguity in the IN S’s regulation, and rec­ ommend that, if INS decides to maintain its interpretation of INA section 287, it cure this defect.

II.

A. Exclusion Proceedings Under The INA

“It is undoubtedly within the pow er o f the Federal Government to exclude aliens from the country.” Almeida-Sanchez v. United States, 413 U.S. 266, 272 (1973); see also Landon v. Plasencia, 459 U.S. 21, 32 (1982); Kleindienst v. Mandel, 408 U.S. 753, 765-66 (1972); 1 Charles Gordon and Stanley Mailman, Immigration Law and Procedure, § 1,03[2][a] (rev. ed. 1993) (“Gordon & M ailman”). The m eans by which the Federal Government may prevent aliens from coming into the country are varied. Some aliens seeking to enter the United States must first be accorded the procedural rights provided by the INA, including an eviden­ tiary hearing, before any determination to exclude them from this country can be made. O ther aliens may, however, be prevented from entering the United States by Executive actions that do not implicate any INA procedures. Thus, in its recent decision in Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 187 (1993), the Suprem e C ourt held that neither the INA nor the United Nations Protocol Relating to the Status o f R efugees, Jan. 31, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577 (“the Protocol”), placed any lim it “on the President’s authority to repatriate aliens inter­ dicted beyond the territorial seas o f the United States.”7 The question presented here is w hether undocumented aliens seeking to enter the United States but inter­ dicted within its territorial waters — that is, within twelve nautical miles from the United States’ baselines — must be accorded an exclusion proceeding under the INA.

7 T h e C o u rt also noted that a provision o f the IN A , 8 U S C § 1182(0, "grants the P resident am ple pow er to estab lish a naval b lo ck ad e that would sim ply deny illegal . . . m igrants the ability to disem bark on our shores " S a le, 509 U .S. at 187.

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Section 235(b) of the INA, 8 U.S.C. § 1225(b), “provide[s] the jurisdictional basis for an exclusion hearing before an immigration judge.” M atter o f Waldei, 19 I. & N. Dec. 189, 191 (1984). That section reads in part as follows:

Every alien (other than an alien crewman) and except as otherwise provided in subsection (c) of this section and in section 1323(d) of this title,181 who may not appear to the examining immigration offi­ cer at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for further inquiry to be conducted by a spe­ cial inquiry officer.

8 U.S.C. § 1225(a) (emphasis added). Section 236(a), 8 U.S.C. § 1226(a), provides for exclusion hearings before a “special inquiry officer” (i.e., an immigration judge, see 8 U.S.C. § 1101(b)(4)). Section 236(a) states:

A special inquiry officer shall conduct proceedings under this sec­ tion, administer oaths, present and receive evidence, and interro­ gate, examine, and cross-examine the alien or witnesses. He shall have authority m any case to determine whether an arriving alien who has been detained for further inquiry under section 1225 o f this title shall be allowed to enter or shall be excluded and deported.

As the plain language of the INA makes clear, it is a predicate for conducting exclusion proceedings that the alien seeking admission be examined “at the port o f arrival” by an immigration officer. 8 U.S.C. § 1225(b); see also id. § 1225(a) (“All aliens arriving at ports o f the United States shall be examined by one or more immigration officers at the discretion of the Attorney General and under such regulations as he may prescribe.”)'(em phasis added); 8 C.F.R. § 235.1 (1993) (“Application to enter the United States shall be made . . . in person to an immi­ gration officer at a U.S. port o f entry enumerated in part 100 o f this chapter.) (emphasis added); id. § 100.4 (c)(2) (designating ports of entry); 1 Gordon & Mailman, at § 8.05[2][b] (“There are many places designated as ports o f entry along the land borders of the United States and at international airports and sea­ ports. It is to such a place, and at a time open for inspection, that an alien seeking entry to the United States must make his or her application for admission. . . . ‘Instream ’ inspections are conducted aboard arriving ships.”).9 An alien mter-

8 8 U S C § 1225(c) refers to the tem porary exclusion by sum m ary procedures o f certain aliens w ho appear to be excludable on national security o r related grounds 8 U S.C. § 1323(d) refers to aliens w ho arrive as siow aw ays, and renders them subject to exclusion w ithout a hearing Se e M atter o f W aldei, 19 1 & N. Dec at 192 9 M ere arrival at a port o f the U nited States, w ithout more, does not entitle an alien to an exclusion hearing before a special inquiry o fficer under INA section 236 Rather, that section lim its the special inquiry

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dieted at sea — even if within the territorial waters of the United States — is not at any “port.” 10 Consequently, there is no jurisdiction to conduct an exclusion pro­ ceeding in such a case." This construction of INA sections 235(b) and 236(a) comports with the text and structure o f the INA. Both sections are located within Part IV, “Provisions Relat­ ing To Entry And Exclusion,” of Subchapter II, “Immigration,” of the INA. An analysis o f these provisions confirms that statutory arrangements for exclusion pro­ ceedings presuppose that the alien is no longer at sea, but has reached port. The first provision o f Part IV relates to the duties o f persons transporting alien and citi­ zen passengers to provide immigration officers with lists or “manifests” of the per­ sons they are transporting. The duty to provide such a list attaches under INA section 231(a), 8 U.S.C. § 1221(a), “[u]pon the arrival of any person by water or by air a t any port within the United States from any place outside the United States” (em phasis added); see also 8 C.F.R. § 231.1(a) (1993). Under INA section 232, 8 U.S.C. § 1222, aliens “arriving at ports of the United States” may be de­ tained for observation and examination by immigration officers and medical offi­ cers if it is thought that they may be excludable for medical reasons (emphasis added). Before its repeal in 1986, the next section, INA section 233, 8 U.S.C. § 1223, authorized immigration officers to order the temporary removal of aliens “[u]pon the[ir] arrival at a port o f the United States, . . . but such temporary re­ moval shall not be considered a landing” (emphasis added). Section 234, 8 U.S.C. § 1224, deals with physical and mental exam inations o f certain arriving aliens, and provides for appeals therefrom. Sections 235 and 236, as discussed above, con­ cern other inspections o f arriving aliens and the institution o f exclusion proceed­

o ffic e rs ’ au th o rity to c o n d u ct exclusion pro ceed in g s to cases in w hich aliens have reached port and have been d etain ed o r taken into cu sto d y by im m ig ratio n officers. 10 B la c k 's L a w D ic tio n a ry (6th ed 1990) defines a “ p o rt” as: A place for the lo adin g and unloading o f the cargoes o f vessels, and the collection o f duties or cu sto m s upon im ports o r exports A p la c e , on the seacoast, great lakes, or on a n v e r, where ships sto p fo r the purpose o f loading and u n lo ad in g cargo, o r for the purpose of taking on o r letting off passen g ers, from w hence they depart, a n d where they finish their voyage. A port is a place in­ ten d ed fo r lo ad in g or unloading goods; hence includes the natural shelter surrounding w ater, as also sh eltered w ater pro d u ced by artificial jetties, etc. T he B aldhill, C C A N Y , 42 F 2d 123, 125. Id. at 1161. A “ port*' m ust th u s be a “ p lace" and, as C h ie f Justice John M arshall w rote, “ [t)he objects w ith w hich the w ord 4p la c e ' is associated, are all, in their n a tu re , fixed and territo rial." U nited S tates v. Bevans, 16 U S. (3 W heat.) 336, 390 (1 8 1 8 ) (em p h asis added) (U n ited States w arship lying at anchor in B oston H arbor not a “p la c e ” w ith in m eaning o f 1790 statute), s e e also id. at 340 (arg um ent o f D aniel W ebster, citing com m on law m eaning o f “port'*); D eva to v. 823 B a rrels o f Plum bago, 20 F 510, 515 (S D N Y 1884). B eing at a p o rt does not req u ire that a “ la n d in g ” be m ade A “la n d in g ” occurs w hen a vessel is left and the shore is reach ed . T a y lo r v U nited S ta te s, 207 U.S. 120, 125 (1907). We note that an alien w ho has arrived at a p o rt b u t w h o has not landed m ay be entitled to an exclusion proceeding See M a tter o f Pierre, 14 1 & N . D ec 4 6 7 ,4 6 9 -7 0 (1 9 7 3 ). 11 E ven if it is assu m ed th at an alien s p resen ce at a “ p o rt” is not a ju r isd ic tio n a l requirem ent o f an exclu­ sion pro ceed in g , the statu te nonetheless m a k e s clear that the rig h t to such a proceeding does not attach u n ­ less the alien is at a “p ort ”

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ings. Section 237, 8 U.S.C. § 1227, provides for the immediate deportation of excluded aliens. Judicial support for our interpretation is provided by Haitian Refugee Center, Inc. v. Gracey, 600 F. Supp. 1396 (D.D.C. 1985), aff'd on other grounds, 809 F.2d 794 (D.C. Cir. 1987), a suit challenging the G overnm ent’s interdiction o f visaless aliens on the high seas. There the district court stated:

The Immigration and Nationality Act has established procedures for the exclusion of aliens, including the entitlement to a hearing. See 8 U.S.C. § 1226. Those rights, however, are reserved for aliens ar­ riving “by water or by air at any port within the United States from any place outside the United States.” Id. Contrary to plaintiffs’ as­ sertion, the interdicted Haitians also have no statutory “right to counsel”, which is reserved to those aliens in “exclusion or deporta­ tion proceedings.” 8 U.S.C. § 1362. Again, because those “exclusion or deportation proceedings” are restricted to aliens ar­ riving “at any port within the United States,” 8 U.S.C. § 1221, it is clear that the interdicted Haitians are entitled to none of these statutorily-created procedural rights, including the right to counsel.

Id. at 1404. In sum, then, the overall statutory scheme regulating the exclusion of an alien is activated by the alien’s arrival at a port of the United States. That event triggers significant legal effects, including the transporter’s duty to provide a manifest, the immigration officers’ powers to inspect and detain, and the alien’s right, if de­ tained, to an exclusion proceeding. Nothing in the statute contemplates that the same effects are to follow if the alien is interdicted at sea before reaching port — even if interdiction occurs within United States territorial waters. For purposes of exclusion under the INA, the ports of the United States — not the limits of its ter­ ritorial waters — are functionally its borders. Accordingly, we conclude that aliens interdicted within United States territorial waters do not have a right to exclusion proceedings under INA section 236.

B. Asylum and Withholding Provisions o f the INA

Examination of the IN A ’s basic distinction between exclusion and deportation proceedings, and of its provisions for asylum and withholding of deportation or return, confirms the conclusion reached in the previous section. “ ‘[0 ]u r immigration laws have long made a distinction between those aliens who have come to our shores seeking admission . . . and those who are within the United Slates after an entry, irrespective of its legality. In the latter instance the Court has recognized additional rights and privileges not extended to those in the

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former category who are merely “on the threshold of initial entry.’”” Sale, 509 U.S. at 175 (quoting Leng May Ma v. Barber, 357 U.S. 185, 187 (1958)) (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953)). The dis­ tinction in the rights and privileges accorded to these two groups is reflected in the different procedures applied to each. “The deportation hearing is the usual means of proceeding against an alien already physically in the United States, and the ex­ clusion hearing is the usual means of proceeding against an alien outside the United States seeking admission.” Landon v. Plasencia, 459 U.S. at 25. The differences between exclusion and deportation, and the varying procedural protections attached to each, turn on whether the alien has made an “entry” into the United States. “E ntry” is here a term of art.12 See id. at 28-29; Matter o f Patel, 20 I. & N. Dec. 368, 370 (1991). “Physically coming into the United States does not necessarily accom plish an entry, else all inspections would effectively have to be made on foreign soil. Presence after inspection and admission, without further restraint, however, does amount to entry. So does penetrating the functional border by intentionally evading inspection before being apprehended.” I Gordon & M ailm an, at § 1.03[2][b]. Aliens w ho have made an “entry” are entitled to depor­ tation proceedings; those who are seeking admission but who have not entered are accorded, at most, an exclusion proceeding — “a process in which the alien usually has less protection under the statute and little, if any, under the Constitution.” Id.u Before 1980, aliens who were excludable but not deportable did not have the right to apply for either asylum or withholding of deportation or return.14 By the enactm ent o f the Refugee Act, § 203(e), 94 Stat. at 107, Congress extended those benefits to both types o f aliens.15 Section 201(b) o f the Refugee Act, as amended, now codified at 8 U.S.C. § 1158(a), prescribed that the Attorney General was to establish procedures for asylum applications. The Refugee A ct’s asylum provision states in part: “The Attorney G eneral shall establish a procedure for an alien physically present in the United States or a t a land border or port o f entry, irre­ spective of such alien’s status, to apply for asylum .” 8 U.S.C. § 1158(a) (emphasis added). As explained immediately below, aliens interdicted within United States territorial waters are neither “at a land border or port of entry,” nor even “physically present in the United States” within the meaning of the asylum statute.

12 T he term “en try ” is d efin ed in the INA to "m ean [] any c o m in g o f an alien into the U nited States, from a foreign port o r place o r from an outlying p ossession, w hether voluntarily or otherw ise " 8 U S C. § 1101(a)( 13) 13 F o r an explanation o f the different e n titlem en ts under each procedure, see Landon v Plasencia, 459 U S. at 25-28. 14 Se e Leng M a M a y v. B a rb er, M a ld o n a d o -S a n d o va l v. IN S, 518 F 2d 278, 280 n 3 (9th C ir 1975); U nited S ta te s e x ret. Tom We Shitng v. M urff, 176 F. Supp. 253, 260 (S .D .N .Y . 1959), a f f d sub nom U nited States ex. rel. Tom We Sh u n g v. Esperdv, 274 F.2d 667 (2d C ir I960); M a tter o f Cenatice, 16 I. & N Dec 1 6 2 ,1 6 4 -6 5 (1977). 13 S ee S a le, 509 U.S at 176 n 33 (w ithholding); id. at 159-60 (asylum and w ithholding); H aitian R efu ­ gee C en ter v. C ra cev, 809 F.2d at 841 (E d w ard s, J., con cu rrin g in part and dissenting in part), 8 C F.R. § 208 2 (a) (1 993); M a tte r o f S a lim , 18 1 & N. D ec. 311, 314 (1 982); 2 G ordon & M ailm an, at I) 33.05[2][a]- [bl.

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See Sale, 509 U.S. at 160 (IN A ’s protections apply “only to aliens who reside in or have arrived at the border o f the United States”) (emphasis added). In Haitian Refugee Center, Inc. v. Baker, 953 F.2d 1498 (11th Cir.), cert, de­ nied, 502 U.S. 1122 (1992), the court construed the language of the asylum provi­ sion and held:

[T]he plaintiffs in this case — who have been interdicted on the high seas — cannot assert a claim based on the INA or the Refugee Act. . . . The plain language of the statute is unambiguous and lim­ its the application o f the provision to aliens within the United States or at United States’ borders or ports o f entry. The plaintiffs in this case have been interdicted on the high seas and have not yet reached “a land border” or a “port of entry.”

Id. at 1510 (citations omitted).

Precisely the same can be said of aliens who have been interdicted within terri­ torial waters: they have not yet reached a land border or a port of entry.16 Furthermore, aliens interdicted within the territorial waters are also not “physically present in the United States,” 8 U.S.C. § 1158(a), in the sense o f that expression evidently intended by Congress. The statute’s distinction between ali­ ens “physically present in the United States” and aliens “at a land border or port of entry” is evidently designed to refer to the difference between deportable and ex­ cludable aliens: as pointed out above, the former are understood to be “already physically in the United States,” while the latter are deemed to be “outside the United States seeking admission.” London v. Plasencia, 459 U.S. at 25. Aliens interdicted within the territorial waters are undoubtedly not entitled to deportation proceedings. They are therefore not “physically present in the United States” within the meaning of the Refugee A ct’s asylum provision. The Refugee Act also amended the INA to allow aliens in exclusion proceed­ ings to seek “withholding” under INA section 243(h), 8 U.S.C. § 1253(h). See Sale, 509 U.S. at 175-76 (“The 1980 am endm ent erased the long-maintained dis­ tinction between deportable and excludable aliens for purposes o f section 243(h). By adding the word ‘return’ and removing the words ‘within the United States’ from § 243(h), Congress extended the statute’s protection to both types o f al­ iens.”).17 In Sale, the Supreme Court held that this amendment did not limit the

16 W e note that, in its 1980 m em orandum concerning the treatm ent o f C uban refugees, INS itself agreed lhat “an alien apprehended w ithin territorial w aters before landing does not appear to h av e a n g h t to apply for asylum under the Im m igration and N ationality Act ” INS C uba M em orandum at 1 17 W ithholding and asylum d iffer in significant ways, net the least o f w hich is that asylum is d iscretio n ­ ary relief w hich the A ttorney G eneral may o r m ay not bestow upon qualified applicants, w hereas w ithholding is m andatory as to those who qualify for it See, e g , S ale, 509 U S at 162 n 11, IN S v C ardoza-F onseca,

85 Opinions o f th e Office o f L e g a l C ounsel

President’s pow er to order the Coast Guard to repatriate undocumented aliens in­ terdicted on the high seas. Id. at 174-77. In our view, the amendment also does not limit the President’s power to order the C oast Guard to turn back undocu­ mented aliens interdicted within United States territorial waters. INA section 243(h), 8 U.S.C. § 1253(h), provides that:

The Attorney G eneral shall not deport or return[18] any alien . . . to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account o f race, religion, nationality, membership in a particular social group, or political opinion.

Section 243(h) by its terms applies only to the actions o f the Attorney General. See Sale, 509 U.S. at 177 (Attorney General is “the government official at whom [section 243(h)] is directed”). Nothing in the language o f the provision speaks to the responsibilities of the Coast G uard or of any other agency that may encounter undocum ented aliens, whether in the territorial waters or elsewhere. Moreover, the INA confers authority on executive branch officers other than the Attorney Gen­ eral, specifically including the President. See, e.g., 8 U.S.C. § 1182(f) (authorizing the President by proclamation to suspend the entry of “any class of aliens” or to “impose on the entry o f aliens any restrictions he may deem to be appropriate”); see also Sale, 509 U.S. at 171-72. If the President orders the Coast Guard to inter­ dict and turn back aliens within the territorial waters, nothing in section 243(h) precludes that agency from obeying his instructions, any more than the section pre­ cluded the agency from obeying a sim ilar Presidential order with regard to aliens on the high seas. Cf. id. at 172.19

480 U S. 421 (1 987); IN S v. S ievic, 467 U S 4 0 7 , 421 n.15, 4 2 3 n 18, 4 2 6 (1984) R elatedly. the alien s p roof b u rd en is m ore readily disch arg ed in asy lu m cases. S ee 2 G ordon & M ailm an, at § 33.05[3]. 18 A s ex p lain ed above, w ith o u t having m a d e an “en try ” into the U nited States, an alien w ould not be subject to d e p o rtatio n ; necessarily, therefore, he o r she w ould not be eligible for w ithholding o f deportation An alien w ho has not m ade an “ en try ” but is in exclusion pro ceed ings can, how ever, apply for the relief of w ithholding o f “ return “ As the Suprem e C ourt explained in S a le, the am endm ents m ade by the R efugee Act added the w ord “re tu rn " to sectio n 243(h) to e n su re that a form o f relief analogous to w ithholding o f d e p u ­ tation w ould be av ailab le in ex clu sio n proceedings See Sale, 509 U S. at 174 ( “W e can reasonably conclude that C on g ress used the tw o w ords ‘deport' and ‘re tu rn ’ only to m ake § 2 4 3 (h )'s protection available in both deportatio n and e x clu sio n pro ceed in g s “) 19 Fu rth erm o re, it w ould be incongruous if the INA p ro v id ed that an alien seeking adm ission had the right to a hearing on a w ith h o ld in g claim, but n o t on an a sy lu m claim , if he or she w ere intercepted in the te m to n a l w aters T h e tw o form s o f relief are bro ad ly sim ilar in substance, and petitions for both are alike founded on the fear o f persecution. Applicants frequently p lead (and are invited by im m igration officers and judges to plead) fo r both types o f relief to g e th e r indeed, u n d e r Board o f Im m igration A ppeals rules, an asylum ap p licatio n presented initially to an im m ig ratio n ju d g e in an exclusion proceeding, or renew ed in such a p ro ceed in g fo llo w in g d enial by an INS officer, is a lso deem ed an application fo r w ithholding See M a tter o f G h a ra d a g h i, 19 1 & N. Dec 311, 3 1 6 (1985); 8 C .F .R . § 208.3(b) (1993); see also id § 208 5(a) (INS shall m ake available ap p licatio n forms fo r asylum and w ithholding to requesting aliens in its custody); id. § 2 0 8 .1 6 (a) (if A sy lu m O ffice r denies asy lu m application, he o r she shall also decide w hether alien is entitled to w ith h o ld in g ); id § 23 6 .3 (a)(l)-(2 ) (im m ig ratio n ju d g e is to advtse an alien expressing fear o f

86 Im m igration C onsequences o f Undocum ented A lie n s ’ A rrival in U S T erritorial W aters

This analysis of the scope of section 243(h) is consistent with Congress’s under­ standing of the scope of Article 33 of the United Nations Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6223, 6259, 189 U.N.T.S. 150 (“United Nations Convention”). As the Supreme Court has noted on several occa­ sions, see Sale, 509 U.S. at 177-78; INS v. Stevie, 467 U.S. at 421, the main intent o f the Refugee A ct’s changes in section 243(h) was to clarify the language o f the provision so that it conformed to Article 33. The legislative history of the Refugee Act discloses that Congress construed the United Nations Convention to “insure fair and humane treatment for refugees within the territory o f the contracting states.” H.R. Rep. No. 96-608, at 17 (1979) (emphasis added). W hile this legisla­ tive reference to “refugees within the territory” of a contracting State could con­ ceivably include aliens within the marginal waters over which the State claimed sovereignty,20 we think it accords better with the realities o f immigration practice (particularly the difficulties of patrolling a border in the sea) to understand Con­ gress to be referring only to aliens who have reached port or who have landed.21 Furthermore, Article 33 does not convey any entitlements that could be relevant here but that are not provided by section 243(h) itself. See Stevie, 467 U.S. at 428- 30 n.22; Haitian Refugee Center v. Gracey, 809 F.2d at 841 (Edwards, J., concur­ ring in part and dissenting in part). Thus, Article 33 does not serve as an inde­ pendent basis for requiring procedural protections not conferred by the statute.22 In addition, the State Department has advised us o f its view that the United States’s international law obligations under the Protocol do not require it to provide exclu­ sion hearings to aliens who have merely arrived in its territorial waters.23 That conclusion concerning the territorial scope o f the signatories’ obligations under

persecution that he o r she may apply for asylum o r w ithholding and shall m ake appropriate forms available). T here is no apparent reason, therefore, why the statutory requirem ent that an applicant be at a port or a land border in order to seek asylum in an exclusion proceeding should not also govern applicants seeking w ith ­ holding 20 T h e word “territory" can in som e contexts be understood to include the territorial sea S ee C u n a rJ S S . Co v M ello n , 262 U S at 122 (E ighteenth A m endm ent); Lam M ow v. N agle, 24 F 2d 316, 318 (9th Cir. 1928) (Fourteenth A m endm ent), In re A— , 3 I & N. Dec. 677, 679 (1949) (quoting M ello n , 262 U .S. at 100). 21 C ertain international law docum ents distinguish betw een a n a tio n 's “ territory'’ and its “territorial seas." For exam ple, the 1982 U nited N ations C onvention on the Law o f the Sea declares that in the zone contiguous to its territorial sea, a State m ay exercise the control necessary to prevent and punish infringe­ m ents o f its im m igration and other laws “w ithin its te m to ry o r territorial sea." See T h ird U nited N ations C onference on the L aw o f the Sea, D ec. 10, 1982, art. 33(1), 21 1 L.M . 1245, 1276 (“ 1982 C onference1’) In any event, w e have previously opined that there is no private right o f action under A rticle 33 See M em orandum for Edw in D W illiam son, Legal A dviser, D epartm ent o f State, from T im othy E Flanigan, A cting A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, R e • A rtic le 33 o f the R efu g ee C onvention at 3 (D ec. 12, 1991) “3 T he State D epartm ent takes the position that “ the non-refoulem ent obligation o f the Protocol [w hich is reflected in the “ w ithholding o f return” language o f INA § 243(h)] applies only with respect to aliens w ho have ‘entered* the U nited Slates in the im m igration law sense. T hat is, the international treaty obligation only applies with respect to an alien w ho is physically present on the land m ass o f the U nited States and w ho has passed a port o f entry . . [T]he non-refoulem ent obligation o f the R efugee Protocol does not apply at sea at all and therefore has no bearing on the questions presented to you by IN S ." State D epartm ent S u b m is­ sion, at 2

87 Opinions o f th e Office o f L eg a l C ounsel

Article 33 is re-enforced by the negotiating history of the article and the interpreta­ tions o f com m entators.24 A ccordingly, we conclude that the IN A ’s sections relating to asylum and with­ holding do not require that an exclusion hearing be provided for aliens interdicted within territorial waters.

C. The G eographical Lim its of the “ United S ta tes”

O ur reading o f the INA is consistent with the statute’s definition of the “United States,” 8 U.S.C. § 1101 (a)(38). “ [t]he term ‘United States’, except as otherwise specifically herein provided, when used in a geographical sense, means the conti­ nental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of the United States.” T hat definition makes no reference to the United States’s territorial waters and on its face is consistent with the view , supported by other sections of the INA, that an undocum ented alien is entitled to an exclusion hearing only if he or she has ac­ tually arrived at a port o f entry.25 The INS takes a contrary view, arguing that the procedural protections of the INA are triggered w henever an undocum ented alien arrives within United States territorial waters. INS D raft M emorandum, at 2. As INS concedes, however, id. at 3, its current position conflicts with an opinion of the INS General Counsel issued only four years ago.26 In its current submission, INS relies primarily upon International Longshore­ m en’s and W arehousemen’s Union v. Meese, 891 F.2d 1374 (9th Cir. 1989)

24 T h e m aterials cited in S a le , 509 U S. at 179-87 reflectin g the negotiations on A rticle 33, d o not sug­ gest th a t the sig n ato ries c o ntem p lated obligations extending b ey o n d their land borders Rather, at least some co m m en tato rs im p ly a co n trary conclusion S e e 2 A G rahl-M adsen, The S ta tu s oj R efugees in International Law 94 (1 9 7 2 ) (“ [A rticle 33] does not obligate the C o n tractin g Stales to adm it any person w ho has not a l­ ready set jo o t on th eir resp ectiv e territories ” (em phasis ad d ed )), N. R obinson, C onvention R elating to the Status o f R e fu g e e s Its H isto r\\ C ontents a n d In terpretation 163 (1953) (“ [I]f a refugee has succeeded m eluding the fro n tier guards, he is safe [under A rticle 33]; if he has not, it is his hard luck ” ). A person who has m erely en tered th e territorial w aters within three or tw elve m iles o f a nation s coast can hardly be view ed as h a vin g "set foot’’ in that nation or as having "e lu d ed " its fro n tier guards. 25 In n u m ero u s o th er statutes, Congress h a s specifically included a reference to the territorial waters w hen d e fin in g the “ U nited States " For e x am p le, the L o n g sh o re and H arbor W orkers C om pensation Act defines the term ‘‘U nited States'* ‘‘when used in a g eo g rap h ical sense [to include] the several States and T errito ries and the D istrict o f C olum bia, in clu d in g the territorial w aters th e re o f * 33 U .S C. § 902(9) The C o n gressio n al R esearch Service has identified a large n u m b er o f statutes referring explicitly to the territorial sea S e e M em o ran d u m for C o m m ittee on M erch an t M arine and Fisheries, from A m erican Law D ivision. Re E ffect o j T e rrito ria l S ea E xten sio n on S e le cte d D o m estic L a w , C R S -I2 (M a r 16, 1989), reprin ted in 1989 H earings, at 60. 26 S ee IN S G eneral C o u n se l's Opinion 89-30, en titled *‘8 C F R § 274a. 1(h) - ‘e m ploym ent' and ‘touches at p o rt': in the U nited Stales" (M a r 15, 1989). T h a t o p in io n 's m ain conclusion was that labor perform ed on a U nited States vessel within U nited States territorial w aters, but w hile the vessel is not touching at a port in the U nited States, does n o t constitute “em p loym ent” in the U nited States w ithin the m eaning o f the IN A . The op in io n further co n clu d ed th at *‘[t]he term ‘U nited States*, as defined in INA $ I0 1 (a)(3 8 ), does not include its ‘territorial w a ters ” Id at 4. Im m igration C onsequences o f U ndocum ented A lie n s ' A rrival in U S. Territorial W aters

(“ILWU"). There, the INS had determined that Canadian nationals who operated cranes aboard vessels operating in U.S. coastal waters were bona fide “alien crew ­ men” within the meaning of 8 U.S.C. § 1101 (a)( 15)(D), and were therefore not required to obtain labor certification from the Department of Labor under 8 U.S.C. § 1182(a)(5). In an action challenging that determination brought by an American labor union, the court of appeals held that the crane operators did not qualify as “alien crewm en” under the INA and therefore were subject to domestic labor certi­ fication requirements. The court rejected the Government’s contention that the IN A ’s labor certification requirements were inapplicable because the crane opera­ tors never “ ‘actually enter the United States as that term is applied to the crew of vessels in U.S. waters because the crane operators never leave the vessel.’” Id. at 1384. In rejecting this argument, the court stated:

An “entry,” however, is not a prerequisite to the applicability of the immigration laws, those laws are triggered whenever an alien merely arrives in the United States, regardless of whether he actu­ ally effectuates an “entry.” The territorial waters surrounding this country are classified as part of the United States. Thus, if persons employed aboard a foreign vessel do not fall within the definition of an alien crewman, then their arrival into U.S. territorial waters could violate provisions of the Act.

Id. (citations omitted). IN S ’s reliance on ILWU is misplaced. The court was not presented with any question that required it to decide whether mere arrival within territorial waters entitles an undocumented alien to an exclusion hearing. Moreover, to the extent that the court’s broad language implied an answer to that question, its analysis was flawed. First, the ILWU court paid no attention to the detailed requirements for any ex­ clusion hearing that are specified by the statute. It is the specific language of the specialized provisions in the INA that determines the extent of an undocumented alien’s procedural rights in pursuing the various legal methods o f gaining adm is­ sion into the United States. In reaching out for an unduly broad result, the court failed to analyze those provisions. Second, the court’s assertion that a vessel’s mere arrival in United States territo­ rial waters triggers the general applicability of the domestic immigration laws was unsupported by any pertinent reasoning or legal authorities. The court cited only two cases, neither of which in fact supports its conclusion. One of the cases does no more than establish that the United States has the legal capacity to assert ju ris­ diction and apply its penal statues within territorial waters; the other case tends, if anything, to undercut ILWU by demonstrating the significance of reaching a port of

89 Opinions o f th e Office o f L eg a l Counsel

entry, rather than the territorial seas, for triggering jurisdictional consequences under the IN A .27 INS also relies on Piledrivers’ Local Union No. 2375 v. Smith, 695 F.2d 390 (9th Cir. 1982). There the court held that the INA and its labor certification re­ quirem ents apply to the outer Continental Shelf because the OCSLA extended the general legal jurisdiction o f the U nited States to the outer Continental Shelf. See 43 U.S.C. §§ 1331-1356. Specifically, the operative section of OCSLA extends “[t]he C onstitution and laws and civil and political jurisdiction of the United States . . . to the subsoil and seabed of the outer Continental Shelf and to all artificial is­ lands, and all installations and other devices perm anently or temporarily attached to the seabed, which may be erected thereon.” Id. § 1333(a)(1). W hile citing P iledrivers’ Local, INS states that it “disagrees” with its holding that the IN A and its labor certification requirements extend to alien workers on the outer C ontinental Shelf. INS adds, however, that “ if the Act did apply to the outer continental shelf, a fortiori it would extend through the territorial sea.” INS Draft M em orandum , at 3 n.2. O ur O ffice has previously considered the relationship between the INA and the OCSLA in Outer Continental Shelf — Drilling Rigs — Alien Workers, 3 Op. O.L.C. 362 (1979). Specifically, w e addressed the question whether, in light of certain 1978 am endments to the O CSLA, the INA applied to drilling rigs on the outer C ontinental Shelf. W e characterized the OCSLA, which was originally en­ acted in 1953, as “basically a guide to the adm inistration and leasing of offshore m ineral-producing properties.” Id. at 362. Considering OCSLA’s federal juris­ diction provision, 43 U.S.C. § 1333(a)(1), without reference to the 1978 am end­ ments to the Act, we found that (3 O p. O.L.C. at 363-64):

Based on a literal reading of that provision, it is certainly possible to conclude that the immigration laws should apply. The 1953 law adopts Federal law “to the sam e extent as if the Outer Continental Shelf were an area o f exclusive Federal jurisdiction located within a State.” The immigration law s apply, o f course, to Federal enclaves within States. It appears that § 1333(a)(1) was drafted so that it would include Federal laws which, read by themselves, might be

27 T h e c o u rt c u e d C u n a rd S .S C o v> M e llo n . 262 U S at 122, and L azarescu v. U nited States, 199 F.2d 898, 900-01 (4th C ir. 1952). IL W U , 891 F 2d a t 1384. C u n a rd h eld that the Eighteenth A m endm ent and the N ational P ro h ib itio n A ct im plem enting it a p p lie d to both foreign and dom estic m erchant ships w ithin the territorial w aters o f the U nited States. 262 U S. at 124-26. L a za rescu involved the prosecution o f a previ­ ously d ep o rted seam an for unlaw ful re-entry in to the U nited S tates The c o u rt’s discussion o f the geo g rap h i­ cal factors g o v e rn in g application o f the INA in that case does not, in fact, place controlling significance on a m v a l m the territo rial w aters. As the court o b serv ed , “[t)he p o rt and harbor of Baltim ore is territory o f the U nited States E ntry into th a t territory even in a vessel am o u n ted to a violation o f the act unless appellant was under restrain t w hich prev en ted his d ep artin g from the v e sse l.” Id at 900-01 (em phasis added). The co u rt’s lan g u ag e seem s to underm ine IL W U 's suggestion th at an a lie n 's arrival in the territorial w aters (rather than at a port) triggers the IN A 's procedures governing exclusion.

90 Im m igration C onsequences o f U ndocum ented A lien s' A rrival in U S. Territorial Waters

interpreted as being limited in their application to the continental United States.

See also id. at 364 (citing legislative history supporting such an interpretation); Warren M. Christopher, The Outer Continental Shelf Lands Act: Key to a New Frontier, 6 Stan. L. Rev. 23, 38, 41-42 (1953) (to like effect).28 In light of our 1979 analysis, we are prepared to assume here that, except as OCSLA otherwise specifically provides, that statute extended the INA to “the sub­ soil and seabed of the outer Continental Shelf,” as well as to “artificial islands” and certain “installations or other devices” attached to the seabed or used for transport. See 43 U.S.C. § 1333(a)(1). We do not see, however, how such an extension of the INA would be relevant to the question whether undocumented aliens are enti­ tled to an exclusion hearing if they are interdicted in the territorial waters. First, O C SLA ’s very definition of the “outer Continental S h e lf’ shows that IN S’s argument is mistaken. The “outer Continental S h e lf’ is defined at 43 U.S.C § 1331(a) to mean “all submerged lands lying seaward and outside of the area of lands beneath navigable waters as defined in section 1301 of this title, and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control.” There is an obvious distinction between the Continental Shelf’s “subsoil and seabed” (and certain structures attached to the Shelf or used in exploiting its resources) and the waters lying above the Shelf. The extension of Federal jurisdiction to the subsoil and seabed of the Shelf would by no means re­ quire or imply its extension to the waters above it. Congress’s intent in enacting OCSLA was to protect the Federal G overnm ent’s “paramount rights to the seabed beyond the three-mile limit,” and specifically its interests in “the leasing and de­ velopment of the resources o f the seabed,” including oil, natural gas, and minerals. United States i>. Maine, 420 U.S. 515, 526-27 (1975) (emphases added). Nothing in that purpose requires, or even suggests, the extension of the immigration laws to the waters lying above that seabed. Moreover, as a matter o f international law, the waters lying above the seabed and subsoil of the Continental Shelf are considered to be open sea to the extent that they are outside territorial waters. See Oil Tanker Officer Tax Liability Case, Bun- desfinanzhof [BFHE][Supreme Tax Court] 123, 341 (F.R.G.), translated in 74 Int’l L. Rep. 204, 210 (E. Lauterpacht and C.J. Greenwood eds., 1987). Thus, “a

28 In connection w ith o ur 1979 opinion, w e note U nited A s s ’n o f Journeym en v Thornburgh, 76 8 F. Supp 375 (D D C . 1991) T hat case dealt w ith the question w hether aliens, in order to perform w ork in ­ stalling oil rigs on the outer C ontinental Shelf, m ust obtain visas o f the type issued to nonim m igrant aliens entering the U nited States to perform tem porary service o r lab o r The d istrict court gran ted sum m ary ju d g ­ m ent, holding that the INA applied to the outer C ontinental Shelf, and explicitly disagreeing w ith o u r O f­ fic e 's conclusion that O C SLA precluded application o f the INA to the Shelf. Id. at 379 H ow ever, the c ourt o f appeals vacated the district c o u rt's grant o f sum m ary ju d g m e n t and rem anded for resolution o f m atters o f fact See U nited A s s 'n o f Journeym en v Barr, 981 F.2d 1269 (D C C ir 1992), te r t dented, 117 S C t. 49 (1996) The court o f appeals sp ecifically declined to decide “the broad question w hether the Im m igration and N ationality Act generally applies on the o u te r C ontinental S h e lf " Id at 1274.

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ship operating beyond the territorial sea above the area o f the continental shelf is still to be regarded as being on the high seas and not subject to the sovereignty of the coastal State.” Id. at 211. S a le, of course, has settled the issue of the Presi­ dent’s pow er under the IN A to return, without any hearing, aliens interdicted on the high seas — including, therefore, the high seas above the outer Continental Shelf.

D. E ffect O f P residential Proclamation No. 5928

As discussed above, Presidential Proclam ation No. 5928 of December 27, 1988, announced that the territorial sea o f the United States would extend to twelve nau­ tical miles from the baselines of the United States. The President further stated:

N othing in this Proclamation:

(a) extends or otherwise alters existing Federal or State law or any jurisdiction, rights, legal interests, or obligations derived therefrom;

54 Fed. Reg. at 111. D espite this expressed intent not to alter dom estic law, the INS suggests that the Proclam ation did operate to extend the scope o f the INA. M ore precisely, the INS appears to argue that the Proclamation operated to enlarge the IN A ’s definition of the “U nited States,” found in 8 U .S.C . § 1101 (a)(38). See INS/OGC M emoran­ dum, at 1-3.29 W hen the Proclam ation was proposed, this Office considered various issues re­ lating to its legality. As to the possible effect of the Proclamation on domestic law, we opined:

By its terms, the Proclamation will make clear that it is not intended to affect dom estic law. Congress may, however, have enacted stat­ utes that are intended to be linked to the extent o f the United States’ territorial sea under international law. The issue, therefore, in de­ term ining the effect of the proclam ation on domestic law is whether Congress intended for the jurisdiction o f any existing statute to in­ clude an expanded territorial sea. Thus, the question is one of leg­ islative intent.

Legal Issues Raised by the Proposed Presidential Proclamation to Extend the Ter­ ritorial Sea, 12 Op. O .L.C. 238,253 (1988).

29 T h e re is no b asis for assu m in g , as INS p e rh a p s does, lh ai the P roclam ation's expansion of the territo­ rial sea w o u ld u n iform ly affect each discrete pro v isio n o r definition in the INA, w ithout regard to us par­ ticular p h rasin g o r function

92 Im m igration C onsequences o f U ndocum ented A lie n s' A rrival in U S Territorial W aters

Our 1988 opinion invites the question whether Congress intended the INA, or particular sections of the INA, to track any changes in the bounds o f the United States’s territorial sea. We have therefore considered whether Congress intended the IN A ’s definition of the “United States” at 8 U.S.C. § 1101 (a)(38) to track, and conform to, changes in international law determining the extent o f the United States’s territorial sea. We believe that Congress had no such intent. The INS has offered no evidence that Congress meant either the INA as a whole, the IN A ’s pro­ visions governing the treatment of aliens seeking entry in particular, or the IN A ’s definition o f the “United States,” to track such changes in international law. After reviewing the legislative history, we have discovered no such evidence ourselves. Thus, we conclude that it is extremely unlikely that Congress intended the IN A ’s definition o f the “United States” to be ambulatory, and to follow changes in inter­ national law. We shall, however, assume arguendo that Congress intended the IN A ’s defini­ tion of the “United States” to track changes in the extent of the United States’s territorial sea recognized by international law. Cf. Argentine Republic, 488 U.S. at 441 (suggesting by negative implication that if injury had occurred in territorial waters, it would have taken place within the “United States” as defined in the For­ eign Sovereign Immunities Act of 1976, 28 U.S.C. § 1330). It still does not follow that exclusion proceedings must be provided for undocumented aliens interdicted within the twelve mile bounds that now comprise the territorial waters. An implicit enlargement of the IN A ’s definition of the “United States” to include the new ter­ ritorial waters has no bearing on the scope of the statute’s exclusion provisions, INA sections 225-226. As discussed above, these sections do not refer to the “United States” in any relevant way; rather, they refer to “the ports o f the United States,” and condition exclusion proceedings on arrival at such ports. Id. (emphasis added). In short, by enlarging the territorial waters, the Proclamation may also have extended the geographical scope of the “United States” under the INA; but it does not follow that aliens for whom exclusion proceedings need not previously have been provided have become entitled to them. Furthermore, the Proclamation should have no impact on the procedural enti­ tlements o f undocumented aliens under the INA because the statute’s only signifi­ cant reference to the territorial waters occurs in a provision establishing the Governm ent’s power to deter illegal immigration rather than in any of the provi­ sions establishing an alien’s procedural rights in seeking to enter the United States. A computer search shows that the terms “territorial waters” or “territorial sea” are mentioned in only one section of title 8 (which includes the INA).30 That provision

30 T he co m p u ter search also identified a provision in the notes follow ing 8 U S C. § 1101, referring to the 'T re a tm e n t o f D epartures from Territorial W aters o f G uam o r D epartures from G uam .” The note states that section tw o o f the A ct o f Oct 21, 1986, Pub L. No 99-505, 100 Stat 1806, had provided that '"[ljn the adm inistration o f section 10l(a)( I5)(D )(n) o f the [INA] an alien crew m an shall be considered to have departed from G uam after leaving the territorial w aters o f G uam , w ithout regard to w hether the alien arrives in a foreign stale before returning to G uam . ‘

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is section 287(a)(3) o f the INA, 8 U .S.C. § 1357(a)(3), discussed in detail in Part III below, which authorizes the IN S to conduct warrantless searches of vessels “within the territorial waters of the U nited States.” The absence o f any other use in the INA o f the terms “territorial w aters” or “territorial sea” — and particularly their absence in the detailed provisions governing the treatment of aliens seeking to enter the United States — strongly suggests that an alien’s arrival or presence in the territorial waters is simply not a relevant consideration for establishing or ex­ panding the rights o f aliens seeking entry. Had Congress wanted to make mere entry into the territorial waters sufficient to guarantee the entrant an exclusion hearing, it could easily have written such language into an appropriate section of the INA, as it did elsewhere in the A ct. Indeed, inasmuch as the only usage of the term “territorial w aters” appears in section 287’s description of IN S’s authority to search vessels in order to thwart aliens attempting illegal entry, there is reason to view the territorial waters as a buffer zone, rather than as a safe harbor, in the overall schem e o f the INA. A ccordingly, we conclude that Presidential Proclamation No. 5928 does not have the effect o f requiring exclusion hearings to be provided to undocumented aliens interdicted within the territorial sea.

III.

A. IN S ’s E nforcem ent Powers U nder INA Section 287

Section 287 of the INA, 8 U.S.C. § 1357, sets forth various investigative and enforcem ent powers granted to IN S. O f particular relevance here, INA section 287(a)(3) provides that the INS shall have power, without a warrant —

(3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, air­ craft, conveyance, or vehicle.........

8 U.S.C. § 1357(a)(3). In the wake of the Presidential Proclam ation No. 5928, INS amended its inter­ pretative regulation construing section 287. See 57 Fed. Reg. 47,257 (1992), codi­ fied at 8 C.F.R. § 287.1(a)(1) (1993). This interpretative rule construes the term “external boundary,” as used in INA section 287(a)(3), as follows:

(a)(1) External boundary. The term external boundary, as used in section 287(a)(3) of the Act, means the land boundaries and the territorial sea o f the United States extending 12 nautical miles from the baselines o f the United States determined in accordance with international law.

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8 C.F.R. at § 287.1(a)(1). The regulation does not purport to construe any provi­ sion of the INA other than section 287. The main question posed to us concerning INA section 287 is whether the INS had the authority to construe that provision so as to reflect the enlargem ent o f the United States’s territorial waters effected by the Proclamation. W e believe that IN S’s authority to issue the regulation could be defended on either o f two theories. First, the Proclamation may have operated of its own force to enlarge the scope of section 287. Second, the INS may have the authority to construe section 287 by regulation in a manner that reflects changed circumstances, including such facts as the expansion of the territorial waters by Presidential proclamation. O f these two theories, the latter appears to us the more persuasive. W e also note that the broad enforcement powers granted to the Attorney G en­ eral under section 103 of the INA, 8 U.S.C. § 1103 — powers which have been delegated to the INS — could provide a separate legal basis for a regulation estab­ lishing that IN S’s seaward search authority extends to the limits o f the twelve-mile territorial waters and even beyond. See United States v. Chen, 2 F.3d 330 (9th Cir. 1993), cert, denied, 511 U.S. 1039 (1994), discussed infra in Pt. III(C).

B. “Territorial Waters” Under INA Section 287

As discussed in Part II above, this Office has taken the position that the question o f the Proclamation’s effect upon domestic law depends on a case-by-case analysis o f the legislative intent behind each statute. Accordingly, we sought evidence that Congress intended the IN A ’s definition of the “United States,” 8 U.S.C. § 1101 (a)(38), to track changes in international law respecting the United States’s territorial waters. We discovered no such evidence. The legislative history o f sec­ tion 287’s “territorial waters” limitation provides some guidance as to that term ’s origins, but we find it inconclusive on the question of whether the meaning o f the term was meant to be static or dynamic. The language of section 287 authorizing warrantless vessel searches was origi­ nally enacted as an amendment to a Justice Department appropriations bill in 1925. Appropriations for Department of State and Justice, the Judiciary, and Departments o f Commerce and Labor, Pub. L. No. 68-502, 43 Stat. 1014, 1049-50 (1925). That amendment was primarily intended to provide authority for INS border patrol offi­ cials to make arrests upon sighting illegal entry of aliens, but it also provided authority for warrantless searches of vessels and other vehicles in that same con­ text. 66 Cong. Rec. 3201-02 (1925) (statements of Sen. M cKellar and Sen. Reed). The limitation o f vessel searches to the territorial waters was added as a House floor amendment to the bill as reported out of the conference committee. Id. at 4553, 4555. The sponsor o f that amendment, Mr. Connally of Texas, offered the amendment to address his concern that the absence of any limitations on the vessel

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search authority was “apt to entangle our Government in difficulties with foreign nations.” Id. at 4555. In further addressing this concern, Mr. Connally stated, “But why not limit it? It is just such loose legislation as this that produces compli­ cations with other nations.” Id. Ju st before offering the amendment, Mr. Connally specifically considered using “within the 3-m ile limit” as alternative language to “within territorial w aters,” but he opted for the latter formulation and the amend­ ment was adopted by voice vote. Id. The am endm ent was accepted by the Senate with little discussion. Id. at 4519.31 In 1946, Congress amended the IN S ’s search authorization statute by inserting the additional provision limiting searches to “within a reasonable distance from any external boundary of the United S tates.” Act o f Aug. 7, 1946, Pub. L. No. 79-613, 60 Stat. 865. Although there was some House debate on that bill, S. 386, 79th Cong. (1945), it did not make any reference to the term “territorial waters” or indi­ cate that any change in the scope or effect of that term was intended. See 91 Cong. Rec. 5504-05, 5513 (1945). The debate did indicate that some Congressmen viewed the scope o f the IN S’s sea search authority under the then existing territo­ rial waters provision as quite broad. As one M em ber stated, “under the present law [an official] may go on any boat in any waters and search that boat, without a war­ rant, to see if there are any people there attempting to enter.” Id. at 5505 (emphasis added).32 A lthough the legislative history o f the territorial waters provision is inconclu­ sive on the precise issue at hand, it does demonstrate that the phrase was inserted in order to avoid friction with other nations by limiting vessel searches within the three-m ile territorial waters claimed by the U nited States in 1925. The legislative record also reveals that the author and sponsor of the territorial waters amendment considered but rejected alternative language that would have explicitly limited the vessel search authority to a “three-mile limit” — a factor that militates against the view that an im m utable three-mile lim it was intended. It is also apparent that the limitation ultimately imposed by C ongress reflected international rather than do­ mestic concerns. W hile these factors are inconclusive on the question of whether C ongress intended a fixed or expandable interpretation of the territorial waters, they do suggest that the term should be interpreted with international perspective in mind. Inasm uch as the 1988 Proclamation expanded United States territorial wa­ ters in conform ity with international law and practice, interpreting the term as used in section 287 to reflect that reality could be viewed as consistent with the provi­

11 S e n a to r Jo n es, the F lo o r M anager, c o m m e n ted on the am endm ent as follows before its adoption: “ It seem s to m e that is en tirely p roper; I doubt if a v essel co u ld b e searched outside o f territorial w aters even if we d id not have that language in it; so I think th e Senate sh o u ld co n cur in the am endm ent o f the H ouse ” 66 C ong R ec at 4 5 19 12 T h e present language o f section 287(a)(3) was en acted as part o f the INA in 1952. That language, w hich m ade no sig n ifican t c h an g es to the statu te as m odified in 1945, was adopted by unanim ous consent, w ithout any d eb ate o r d iscu ssio n as a floor a m e n d m en t to the bill — H R . 5678, 82d C ong. (1952) — that becam e the IN A 98 C ong. Rec. 4 4 0 0 (1952).

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sion’s original design — i.e., limiting the IN S’s search authority to within United States’s territorial waters as declared and recognized under international law. Accordingly, there is little evidence to show that Congress intended its use of the term “territorial waters” to constitute an irrevocable commitment to the three- mile limitation in effect at the time o f section 287’s enactment. A reasonable in­ terpretation of that term, taking into account the statute’s evident intention to pro­ vide sufficient enforcement powers to prevent illegal immigration, would therefore incorporate the expansion of the territorial sea declared in the Presidential procla­ mation. Alternatively, it can be argued that even if the Proclamation did not o f its own force enlarge section 287’s reference to the territorial waters, it nonetheless provided a sufficient basis for INS to promulgate its interpretative regulation. Un­ der section 103(a) of the INA, 8 U.S.C. § 1 103(a), the Attorney General has broad authority to promulgate regulations interpreting and implementing provisions of the INA in furtherance of her duties, including the duty to protect the N ation’s bor­ ders against illegal entry by unauthorized aliens.33 The courts have accorded sub­ stantial deference to the Attorney G eneral’s regulations under the IN A .34 INS appears to have regulatory authority to construe the terms “external bound­ ary” and “territorial waters” in INA section 287 to refer to the twelve-mile territo­ rial sea announced in Presidential Proclamation No. 5928, rather than to the historic three-mile territorial sea. Even if the Proclamation did not operate o f its own force to alter the scope of section 287, it represented a significant change in circumstances — the international law definition of the United States’s territorial waters — which INS could reasonably take into account in deciding to revise its construction o f that statutory provision. Neither the language of section 287 nor (as discussed above) the legislative history demonstrates an unambiguous congressional intent either to link the term “territorial waters” permanently to the historic three-mile boundary or to track sub­

33 INA section 103(a) provides. T h e A ttorney G eneral shall be charged w ith the adm inistration and enforcem ent o f this chapter and all o th er law s relating to the im m igration and naturalization o f aliens, except insofar as [pow er is delegated to other E xecutive B ranch officials] . He shall establish su ch regulations . . as he d eem s necessary for carrying out his authority under the provisions of this chapter . . . . He shall have the pow er and duty to control and guard the boundaries and borders o f the U nited States against the illegal entry o f aliens . . . See 8 U S C § 1103(a). The INA further provides that the A ttorney G en eral’s d eterm inations and rulings ‘‘w ith respect to all questions o f law [under the INA] shall be controlling ’’ Id. W ithout divesting the A ttorney G eneral o f any pow ers, privileges o r duties, the A ttorney G e n eral’s authority under section 103(a), in cluding the a u th o rity to prom ulgate regulations, has been delegated to the C om m issioner o f INS See 8 C F.R. § 2 1 (1993); I G o r­ don & M ailm an, at § 3 03[ 1] 34 See, e g . Jean v. N elson, 727 F 2d 957, 967 (11'" C ir 1984), tiff'd, 472 U.S 846 (1985) (IN A -p e rm its wide flexibility in decision-m aking on the part o f executive officials involved, and the courts are g enerally reluctant to interfere"), N a ren ji v C ivd etti, 617 F.2d 745 (D C. Cir. 1979), cert denied, 4 4 6 U S 9 57 (1980) (im m igration regulations prom ulgated by the A ttorney G eneral under the INA will be upheld as long as they are ‘‘directly and reasonably related to the A ttorney G e n eral's duties and authority under the A c t')

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sequent developm ents in the law, including international law. Accordingly, in adopting its interpretative rule, INS has not failed to “give effect to the unambigu­ ously expressed intent o f Congress.” Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). Rather, because “the statute is silent or ambiguous with respect to the specific issue,” the question is whether IN S’s construction of section 287 was “perm issible.” Id. at 843. Here, we believe, INS was engaging in rulemaking to fill a “gap” implicitly left open by Congress. In such a case, Congress has impliedly delegated the question of construction to the enforcing agency. Id. at 843-44. The IN S ’s interpretation should therefore be up­ held so long as it is “a reasonable one.” Id. at 845. We think that the interpretation was reasonable. First, the IN S ’s interpretation ensures that section 287 will be understood in a m anner that is consistent with the current international law understanding o f the United S tates’s “territorial waters,” as declared by the Proclamation. As discussed above, the territorial waters limitation was originally inserted in section 287 in or­ der to prom ote ju st such clarity of understanding with other nations as to the scope of U nited States search authority at sea. M oreover, the special problems o f maritime enforcem ent of the law appear to support the extension o f the INS’s authority to board and search vessels beyond the three-m ile limit. Such problems have been recognized in the context of customs enforcem ent, but they apply to immigration enforcem ent with equal force. Thus, in United States v. Tilton, 534 F.2d 1363, 1365 (9th Cir. 1976), the court observed that “it is not practical to set up checkpoints at the outer perimeters o f the territorial waters. Nor is it likely that incoming vessels will pick up or discharge passengers or cargo betw een their points of entry into territorial waters and their anchorages at United States ports.” Accordingly, the courts have upheld warrantless customs searches o f vessels beyond the three-m ile lim it but within “customs waters” as valid border searches under the Fourth Am endm ent.35 See id. (holding that a cus­ toms search of a vessel within custom s waters can be valid as a border search); United States v. Victoria-Peguero, 920 F.2d 77, 80-81 & n.3 (1st Cir. 1990) (pointing out that custom s officers are statutorily authorized to search vessels within custom s waters, and noting suggestions that the contiguous zone, i.e., the waters lying between three and tw elve nautical miles off the coast, be considered the functional equivalent o f the border for purposes o f the Fourth Amendment); cert, denied, 500 U.S. 932 (1991); United States v. Hidalgo-Gato, 703 F.2d 1267, 1273 (1 1th Cir. 1983) (holding the contiguous zone to be the functional equivalent of the border); United States v. M acPherson, 664 F.2d 69, 72 & n.2 (5th Cir. 1981) (sim ilar to Victoria-Peguero)', Note, High On The Seas: Drug Smuggling,

35 “ [T ]h e law s o f the U nited States have s in c e 1790 p ro h ib ited various acts w ithin 12 m iles, or 4 leagues, of the shore, as a m eans to en fo rce com pliance w ith the cu sto m s law s.’’ W illiam W. B ishop, International L aw . C a se s a n d M a teria ls 622-23 (3d ed. 1971). The offsh o re w aters reaching to the tw elve-m ile lim it in w hich su ch e n fo rc e m e n t was authorized were k n o w n as the “cu sto m s w aters ” See 19 U S.C § 1401(j).

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The Fourth Amendment, And Warrantless Searches At Sea, 93 Harv. L. Rev. 725, 733-34 (1980) (detailing difficulties in law enforcement at sea near borders, and arguing for “functional” understanding o f borders that could extend them beyond three-mile limit). Analogously, the special difficulties in policing the seaward boundaries can justify IN S’s regulatory extension of its search authority up to the twelve-mile limit.36 Finally, it is no objection to IN S ’s regulation that it might be said to represent a departure from the agency’s prior position. An agency’s position is “not instantly carved in stone,” and “the agency, to engage in informed rulemaking, m ust con­ sider varying interpretations and the wisdom of its policy on a continuing basis.” Chevron, 467 U.S. at 863-64; see also Rust v. Sullivan, 500 U.S. 173, 186 (1991 ).37

C. INA Section 103 Authority and “United States v. C hen”

Although we have been specifically asked to examine the validity o f the INS interpretive regulation expanding its authority to conduct warrantless searches in the territorial waters under section 287 of the INA, it should be pointed out that the broad enforcement powers granted the Attorney General under section 103 o f the INA could provide the legal basis for a substantive regulation authorizing an equal or even greater range for INS search authority at sea. Section 287 authorizes and limits INS’s direct authority to conduct searches at sea, but its territorial limitations do not apply to the Attorney G eneral’s broader enforcement powers (which are delegable to INS) under the INA. The recent opinion in United States v. Chen, 2 F.3d 330 (9th Cir. 1993) provides strong support for this position. In Chen, the court unanimously held that section 103 of the INA provided INS with adequate statutory authority (under delegation from the Attorney G eneral) to conduct an undercover “sting” operation some three hundred and twenty miles off the coast of the United States to thw art the smuggling o f illegal aliens from China.

16 W e also believe that INS officials w ould have authority to make arrests under the provisions o f INA section 287(a)(2) within the tw elve-m ile territorial sea recognized in the INS regulation Section 287(a)(2) authorizes INS officials, w ithout w arrant, ' ‘to arrest any alien who in his presence o r view is en te rin g or attem pting to e n te r the U nited States in violation o f [the im m igration law s regulating adm ission, exclusion, or expulsion o f aliens] " A lthough undocum ented aliens detected in the tw elve-m ile territorial w aters before reaching a port m ight not yet be ' ‘entering ' the U nited States, there w ill be circum stances w here an INS o fficial’s observations provide reasonable grounds to believe that aliens are ' ‘attem pting to enter" in violation o f the im m igration laws, thereby providing the basis for arrest under section 287(a)(2). 17 W e also can discern no international law o bjection to the INS regulation See 1982 C o n feren ce, at 1276 (allow ing regulation w ithin contiguous zone for purpose o f enforcing im m igration law), U .N C onfer­ ence on the Law o f the Sea, C onvention on the T errito rial Sea and the C ontiguous Z one, opened f o r sig n a ­ ture A pr 29, 1958, art 24, I 5 U S T 1606, 1612, 516 U N T.S 205, 220 (entered into force Sept. 10, 1964) (sam e), see a lto C hurch v H uhhart, 6 U S (2 C ranch) 187, 234-35 (1804); U nited S ta te s w B engochea, 279 F. 537, 539-41 (5th C ir 1922) In M olvan v A tto rn e y G en era l, [ 1948] A pp C as 351 (P .C 1964), the Privy C ouncil im plied that international law was not violated by a British d e stro y er's seizing a vessel on the high seas and forcing it to port w hen the seized v essel was carry in g several hundred undocum ented aliens who intended to land illegally

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The operation upheld in the Chen opinion included the apprehension o f approxi­ mately 132 aliens, who were transferred to a vessel operated clandestinely by INS agents for transport to custody in the United States. The court specifically held that the territorial lim itations on w arrantless INS searches set forth in section 287(a)(3) did not offset or contradict IN S ’s authority to conduct such an extrater­ ritorial enforcem ent operation when exercising the enforcement powers delegated to it by the Attorney G eneral. Id. at 334. The court pointed out that section 274 of the IN A , 8 U.S.C. § 1324, prohibiting the sm uggling o f illegal aliens into the United States, was intended to have extra­ territorial application. It then stressed that “Congress intended to grant the Attor­ ney General the corresponding power to enforce the immigration laws both within and without the borders o f the United States.” Chen, 2 F.3d at 333. Noting that the Attorney G eneral has delegated these broad enforcem ent powers to the INS, the court reasoned that INS has “the pow er to take such acts as are deemed necessary for the enforcem ent o f the immigration laws, including extraterritorial enforce­ m ent.” Id. at 334. In rejecting the defendants’ argument that section 287(a)(3)’s territorial lim itations on INS warrantless search authority also circumscribed its power to conduct enforcem ent operations in international waters (i.e., on the high seas), the court stated, “because the Attorney General may delegate her authority, the list o f pow ers granted [to INS] in section 1357(a) cannot be read as exhaus­ tive.” Id. Thus, the Chen decision demonstrates that INS may draw upon the broad sec­ tion 103 authority delegated to it by the Attorney General to conduct undercover investigations and seizures of undocumented aliens in international waters extend­ ing far beyond the territorial waters of the United States. That same authority would appear to provide ample basis — apart from the authority granted directly to INS by section 287 — for a substantive regulation authorizing INS to conduct war­ rantless searches o f vessels transporting illegal aliens within the limits o f the twelve-m ile territorial waters and beyond.38

D. The IN S Regulation

A lthough we conclude that INS had authority to promulgate a regulation inter­ preting the section 287 search authority to encom pass the twelve-mile territorial sea, the language o f the regulation adopted is susceptible to ambiguous and uncer­ tain application when read in relation to the statute. W e recommend that if the policy decision to retain the regulation is made, INS should redraft it to dispel this

W e note that the INS regulation at issu e here was in ten d ed to be only an “interpretative'’ regulation that c o n stru ed sectio n 287, not a substantive reg u latio n d eriv in g from the authority ascribed to the A ttorney G eneral by C hen A su b stan tiv e regulation issu ed pursuant to the A ttorney G en eral’s broad section 103 authority to en fo rce the im m ig ratio n laws w o u ld not be lim ited by the particularized restrictions o f section 287, w hich w ere sp ecifically desig n ed to place lim its on the w arrantless search authority o f the IN S ’s B order Patrol

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ambiguity or, if it concludes that curative legislation is necessary, submit such a proposal to Congress. Section 287 limits INS authority for warrantless searches at sea to vessels found “within the territorial waters,” but then superimposes the additional limitation that such searches (along with INS searches of vehicles on land) must be confined “within a reasonable distance from any external boundary of the United States.” As outlined in Part III(B) above, these two limitations — which on their face are difficult to reconcile — were inserted in the statute at different times and for dif­ ferent purposes. The territorial waters limitation was added as an amendment to the original 1925 enactment to provide a seaw ard limitation upon searches of ves­ sels at sea. In contrast, the “reasonable distance” limitation was added to the stat­ ute in 1946 for the apparent purpose of allowing INS officials to stop and search “vehicles” within a reasonable distance inland from the external boundaries of the United States. Despite the different functions and origins o f section 287’s two limiting phrases, the INS regulation attempts to combine them in its definition of the “external boundary” of the United Stales. See 8 C.F.R. § 287.1(a)(1). It provides that, for purposes of section 287, the external boundary means both the land boundary and the twelve-mile territorial sea. It then provides that the “reasonable distance” limitation (100 air miles) is to be measured from the external boundary thus de­ fined — i.e., it can be measured either from the land boundary or from the outer limit of the territorial waters. Id. § 287.1(a)(2). Because section 287 expressly limits IN S’s vessel-search authority to the terri­ torial waters, the question arises whether the separate “reasonable distance from any external boundary” limitation has any relevance to searches of vessels at sea. W hether the statute’s reference to territorial waters is equated with the pre-1988 three-mile zone or the expanded twelve-mile zone, it seems clear that any search within either of those zones would also be well within “a reasonable distance from any external boundary.” In that regard, the courts have upheld distances of up to one hundred (land) miles from that boundary as constituting a reasonable distance within the meaning of section 287. See Fernandez v. United States, 321 F.2d 283, 286 (9th Cir. 1963). It therefore seems that section 287’s “reasonable distance” provision does not impose any additional limitation upon the IN S ’s authority to search any vessel found within the territorial waters. Nor does the “reasonable distance” provision serve to expand the area of permissible INA searches of ves­ sels at sea. Since vessel searches are confined to vessels within the territorial wa­ ters by the specific terms of section 287, the “reasonable distance” provision cannot operate to override that specific limitation. These considerations support the view that the reasonable distance limitation has no meaningful application to INS searches at sea. INS points out, however, that the reasonable distance limitation may have conceivable application to searches o f vessels on the inland waters. As the INS Draft Memorandum states (at 6-7):

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A lthough there appears to be surface tension between the require­ m ent that the enforcement pow ers be exercised within the territorial waters and the provision that it may be exercised within 100 miles o f any external boundary, this tension is resolved if the “reasonable distance” provisions are read to limit the distance inland from any external boundary within which Service officers may board and search vessels or carry out their other enforcement powers under section 287(a)(3) o f the INA. Read together, § 287(a)(3) o f the INA and 8 C.F.R. §§ 287.1 (a)( 1)-(2) provide that the Service may, without a warrant, board and search vessels beginning twelve miles seaward from the coast line and extending 100 air miles inland.

How ever, this interpretation of section 287 also generates complications. If INS may search vessels found on waters located 100 miles inland of “any external boundary o f the United States,” see 8 C.F.R. § 287.1(a)(2) (emphasis added), there appears to be no need to deviate from use o f the land boundary alone as the base­ line for such purposes. Using the outer limit o f the territorial sea as the baseline for fixing the inland scope of the section 287 authority — an interpretation sug­ gested by IN S ’s current submission (INS Draft M emorandum at 7, quoted above) and its past practice39 — would appear to reduce the scope of inland search authority that would otherwise be allow ed by reference to the land boundary as the baseline. The INS regulation would be clarified by explicitly recognizing that searches at sea are lim ited only by the scope o f United States territorial waters, and that in­ land searches (including searches on inland waters) are separately governed by the reasonable distance inland measured from the land boundary. This would entail providing separate definitions for the “external boundary” and the “territorial wa­ ters,” and linking the reasonable distance limitation solely to the “external [land] boundary.”

IV. Conclusion

Undocum ented aliens interdicted within the twelve-mile zone that now com­ prises the territorial sea of the United States are not entitled to a hearing under the exclusion provisions o f the INA, and may be turned back from the United States by the Coast G uard if the President so orders.

19 IN S a p p lied the reaso n ab le distance lim itatio n in this fashion as long ago as 1952. See M em orandum for the IN S C o m m issio n er, from the General C o u n sel, Re. M e a n in g o f “external boundary•" o f the U nited S tates in A c t o j F e b ru a ry 27, 1925, as am ended, 8 U .S.C. 110, w ith relation to coastlines: Texas g u lf coast (July 7, 1952) T h ere, INS took the position th a t the “external bou n dary” baseline from w hich a reasonable distance inland sh o u ld be m easu red for search p u rposes w as the o u te r lim it o f the three-m ile territorial w aters off the eastern shore o f Padre Island, Texas, a narrow strip o f lan d ten m iles from the coast line w hich e n ­ closed an arm o f the G u lf o f M exico.

102 Im m igration Consequences o f U ndocum ented A lie n s’ A rriva l in U.S Territorial W aters

The INS had the authority to promulgate an interpretative rule construing the “territorial waters” of the United States, as referred to in INA section 287, to ex­ tend for twelve nautical miles, and not merely three nautical miles.

W ALTER DELLINGER Acting Assistant Attorney General Office o f Legal Counsel