The President's Authority to Force the Shah to Return to Iran

• Court: Department of Justice Office of Legal Counsel
• Decided: November 23, 1979
• Status: Published

Opinion

The President’s Authority to Force the Shah to Return to Iran

T h e S h ah can n o t be ex trad ited to Iran, since th e U n ited S tates has no ex tra d itio n tre a ty w ith Iran; h o w e v e r, § § 241(a)(7) an d 212(a)(27) o f th e Im m ig ratio n and N a tio n a lity A ct (IN A ) w o u ld p erm it the A tto rn e y G e n e ra l to d e p o rt th e S hah if his p resen c e in this c o u n try w e re d eterm in ed to be preju d icial to th e public interest.

O n its face, § 243(a) o f th e IN A ap p ears to p erm it th e A tto rn e y G e n e ra l to fo rce the S hah, upon d e p o rta tio n , to re tu rn to Iran; h o w e v e r, § 243(h) o f th e IN A an d app licab le prin cip les o f in tern atio n al law w o u ld p re c lu d e th e A tto rn e y G e n e ra l’s fo rcin g a n y o n e to re tu rn to a c o u n try w h e re he o r she w o u ld be su b ject to political p ersec u tio n , as the S h ah w o u ld be if d e p o rte d to Iran.

Novem ber 23, 1979

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

A m ong the questions that have arisen in informal conversations during recent days is the issue w hether the President has the authority to repatriate the deposed Shah o f Iran. U nder the decided cases there is doubt about the President’s legal authority to com pel the Shah to return to Iran. T he Shah cannot be extradited to Iran. T he President cannot order any person extradited unless a treaty or statute authorizes him to do so. “[T]he pow er to provide for extradition . . . is not confided to the Executive in the absence o f treaty or legislative provision.” Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 8 (1936).1 T he United States has no extradition treaty with Iran, see 18 U.S.C. §3181 note, and the applicable statute authorizes extradition only when “ there is a treaty or convention for extradition between the United States and [a] foreign governm ent.” 18 U.S.C. §3184.2

1Valentine involved an effort to extradite American citizens to a foreign country, but for several reasons the case should be read to limit efforts to extradite any person. First, the language and reasoning o f the case are almost uniform ly broad enough to apply to all extraditions. Second, so far as w e are aw are, no low er court has ev er read Valentine to hold that the President has g reater pow er to extradite aliens than he does to extradite citizens. See. e.g., Argento v. Horn, 241 F.2d 258, 259 (6th Cir. 1957). T h ird , the Valentine C ourt rested its holding on "th e fundam ental consideration that the C onstitution creates no executive prerogative to dispose o f the liberty o f the individual. Proceedings against him must be authorized by law ." Id. at 9. It is now clear, although it may not have been at the time o f Valentine, that aliens as well as citizens are deprived o f their "individual liberty” —at least for purposes o f the D ue Process C lause—w hen they are forced to leave the U nited States. See. e.g., Wong Yang Sung v. McGrath. 339 U.S. 33, 49-50 (1950). 2Even if Valentine permits the President to extradite an alien w ithout affirm ative authority from a treaty o r statute, see note 1 supra, this statute, by authorizing extradition only to nations w ith w hom the United States has a treaty, arguably denies the President the p o w er to extradite in all o th e r cases.

149 T he President can have the Shah deported and forced to return to Iran. Section 241(a)(7) o f the Im m igration and Nationality A ct, refer­ ring to §212(a)(27), provides that “ [a]ny alien in the United States . . . shall, upon the order o f the A ttorney G eneral, be deported who . . . is engaged . . . in any . . . activities w hich w ould be prejudicial to the public interest, or endanger the welfare, safety, or security o f the United States.” 8 U.S.C. §§ 1251(a)(7), 1182(a)(27). It is unclear w hether the Shah’s merely being in the United States, and accepting medical care, am ounts to an “activity” within §§ 241(a)(7) and 212(a)(27). A l­ though the issue is not free from doubt, we believe that the better view, adopted by previous opinions o f this Office, is that presence alone can constitute an “activity” under these sections. By causing the lives of A m erican hostages to be threatened, the Shah’s presence probably is “prejudicial to the public interest” if indeed it does not “endanger the welfare [or] safety . . . o f the United States.” In addition, this Office has previously expressed the view that serious harm to the N ation’s conduct o f foreign affairs constitutes prejudice to the public interest within the meaning o f these provisions.3 Thus § § 241(a)(7) and 212(a)(27) permit the A ttorney G eneral to deport the Shah. If the Shah is deported, § 243(a) o f the A ct, 8 U.S.C. § 1253(a), appears on its face to em pow er the A ttorney G eneral to force him to return to Iran. Section 243(a) provides that a deported alien is to be sent to a country he designates, “ unless the A ttorney General, in his discretion, concludes that deportation to such country would be preju­ dicial to the interests o f the United States.” If the A ttorney General believed that allowing the Shah to leave the United States for a nation other than Iran would endanger the lives o f Am erican hostages or harm Am erican foreign policy, he could exercise his discretion to reject the Shah’s designation.4 If an alien’s designation is not observed, “de­ portation o f such alien shall be directed to any country o f w hich such alien is a subject, national, or citizen if such country is willing to accept him into its territory.” § 243(a), 8 U.S.C. § 1253(a).5 Section 243(h) o f the Im m igration and N ationality Act, how ever, provides that T he A ttorney G eneral is authorized to w ithhold deporta­ tion o f any alien within the United States to any country in w hich in his opinion the alien w ould be subject to

3 Specifically, in 1977 this O ffice concluded that the A tto rn ey G eneral had the pow er to exclude trade representatives o f the illegal R hodesian governm ent on the grounds that their activities w ould adversely affect A m erican foreign policy interests and that even allow ing them to enter the country w ould violate o u r obligations under a S ecu rity Council R esolution. 4 See o u r interpretation o f parallel language— “ prejudicial to the public interest"—in §§ 241(a)(7) and 212(a)(27), w hich authorize deportation. 5 If the Shah has been stripped o f his Iranian citizenship, and is no longer an Iranian national, § 243(a) still gives the A tto rn ey G eneral am ple authority to deport him to Iran. See, e.g., § 243(a)(3), (7), 8 U .S .C § 1253(a)(3), (7).

150 persecution on account o f race, religion, or political opinion . . . . 8 U.S.C. § 1253(h). Courts have consistently followed the unvarying practice o f the A ttorney General, see M atter o f Dunar, 14 I.&N. Dec. 310, 322 n.20 (1973), and interpreted § 243(h) not just to authorize but to require the A ttorney G eneral not to deport an alien to a country w here he is likely to be persecuted. See, e.g., Kovac v. IN S, 407 F.2d 102, 104 (9th Cir. 1969); U.S. ex rel. Dolenz v. Shaughnessy, 206 F.2d 392, 395 (2d Cir. 1953); 1 G ordon & Rosenfield, Im m igration Law and P rocedure 5-178, 5-179 (1979). T he M ultilateral Protocol Relating to the Status o f Refugees, which binds the United States, confirms this interpretation. It provides: No C ontracting State shall expel or return (“refouler”) a refugee in any m anner w hatsoever to the frontiers of territories w here his life or freedom would be threatened on account o f his race, religion, nationality, membership o f a particular social group o r political opinion.6 “ Refugee” is defined, in part, as: any person w ho . . . ow ing to a well-founded fear of being persecuted for reasons o f race, religion, nationality, membership o f a particular social group o r political opin­ ion, is outside the country o f his nationality. . . . 7 Thus the Protocol allows the A ttorney G eneral no d iscretio n 8 to deport a refugee to a territory “w here his life or freedom would be threatened” by political persecution.9 T he only remaining issue, under both the Protocol and § 243(h), is w hether the Shah w ould be “ persecuted” on account o f “ political opinion” if he w ere returned to Iran. In other cases courts have gener­ ally deferred to the conclusion o f the Im m igration and N aturalization Service (IN S)—the A ttorney G eneral’s delegate—on this issue, but that

6A rticle 33, U nited N ations C onvention R elating to the Status o f Refugees, 185 U .N .T.S. 150, 176 (1954), incorporated in the P rotocol, 19 U .S.T. 6223, T.I.A .S. No. 6577 (1968). ’ A rticle 1 o f U nited N ations C onvention, supra note 6. flT he Protocol does specify that “ [t]he benefit o f [this protection] may not, how ever, be claim ed by a refugee w hom there are reasonable grounds for regarding as a danger to the security o f the country in w hich he is . . A rticle 33 o f the U.N. C onvention, supra note 6. It is unlikely that “danger to the security" o f the asylum country should be interpreted to include threats made, in an effort to obtain the refugee, by the co u n try w hich w ants to persecute him; such an interpretation w ould in effect allow the very nation from w hich the refugee needs protection to nullify that protection. T his point is not entirely clear, how ever, and a colorable argum ent can be made from the language itself that the Protocol w ould authorize the President to return the Shah. This issue should be review ed w ith those at the State D epartm ent w h o have had experience w ith m atters o f this sort. 9T h e legislative history o f the ratification o f the P rotocol suggests that the Senate understood A rticle 33 to make little change in prevailing law under § 243(h), but this understanding w as based on the consistent interpretation o f § 243(h) as requiring, and not ju st authorizing, the A ttorney G enera) to w ithhold the deportation o f likely victims o f persecution. See M atter o f Dunar, 14 I. & N. D ec. 310 (1973). O n this basis, the courts and the Im m igration and N aturalization Service have held that the requirem ents o f § 243(h) are substantially the same as those o f A rticle 33. See id. at 322-23; Kashani v. IN S, 547 F.2d 376, 379 (7th Cir. 1977).

151 has been because the only dispute was factual; the alien asserted, and the IN S denied, that the alien w ould be harm ed or punished by the country to w hich the IN S proposed to deport him. T he facts about the reception the Shah would receive in Iran are fairly clear, how ever, so in this case the issue would becom e basically one o f law —w hether “persecution on account o f . . . political opinion” correctly characterizes the actions the Iranian governm ent has prom ­ ised to take. In dealing w ith this question o f law courts have inter­ preted the language them selves and have been reluctant to defer to the IN S ’s interpretations. See, e.g., Kovac v. INS, 407 F.2d 102, 104-07 (9th Cir. 1969); Sovich v. Esperdy, 319 F.2d 21, 25-29 (2d Cir. 1963). And under the standards that have developed, w hat the Iranian governm ent proposes to do w ould almost certainly qualify as persecution on ac­ count o f political opinion. C ourts have found, for example, that a threatened prosecution constituted persecution w hen it was politically m otivated and w hen the procedures w ould be irregular or capricious. See, e.g., Coriolan v. IN S, 559 F.2d 993, 1000-04 (5th Cir. 1977) (Tuttle, J.; Coleman, J., dissenting). In general, if an alien can establish that he is likely to be punished upon his return, courts have allowed him to be deported only if the punishm ent is for an “ordinary crim e” o f the sort that might be punished under any regime and that has no overtly political import. See, e.g., M acC au d v. INS, 500 F.2d 355, 359 (2d Cir. 1974); K alatjis v. Rosenberg,- 305 F.2d 249, 252 (9th Cir. 1962). If a policy decision w ere made to press for the Shah’s deportation to Iran, it could be argued that Iran w ants to punish the Shah not for his opinions but for his actions. But apparently those same actions, if taken to prom ote a different political view or cause, w ould not now be a crime in Iran; this is probably sufficient to make the Shah’s prospective punishm ent “persecution on account o f . . . political opinion.” See, e.g., Coriolan v. INS, supra; Ross v. IN S, 440 F.2d 100, 101 (1st Cir. 1971). F o r these reasons, on the facts available at this time, w e believe that the A ttorney G eneral lacks the authority to require the Shah to return to Iran.

L arry A. H am m ond

D eputy Assistant Attorney General Office o f Legal Counsel