¹ Executive Order No. 12,807, 57 Fed. Reg. 23,133 (1992).

² No. 92–6144, 1992 U.S. App. LEXIS 17372 [hereinafter HCC v. McNary II]. The actual order enjoining the program was issued by the United States District Court for the Eastern District of New York on July 29, 1992, No. 92 CV 1258.

³ McNary v. Haitian Centers Council, Inc., 61 U.S.L.W. 3082 (U.S. Aug. 1, 1992), petition for cert. filed (U.S. Aug. 24, 1992) (No. 92–344).

⁴ Executive Order No. 12,324, 46 Fed. Reg. 48,109 (1981), reprinted in 8 U.S.CA. §1182 note (West Supp. 1992).

⁵ Agreement relating to Establishment of a Cooperative Program of Interdiction and Selective Return of Certain Haitian Migrants and Vessels Involved in Illegal Transport of Persons Coming from Haiti, Sept. 23, 1981, U.S.-Haiti, 33 UST 3559.

⁶ Id. at 3560 (emphasis added).

⁷ For a more detailed discussion of the procedures used to “screen” Haitians on board interdicted vessels, and to allow “screened-in” Haitians to pursue asylum claims in the United States, as well as an analysis of various legal challenges to these procedures, see Haitian Centers Council, Inc. v. McNary, Nos. 92-6090 and 92-6104, 1992 U.S. App. LEXIS 13934 (2d Cir. June 10, 1992); Haitian Refugee Center v. Baker, 789 F.Supp. 1552 (S.D. Fla.), rev’d, 949 F.2d 1109 (11th Cir.) (per curiam), on remand, 789 F.Supp. 1579 (S.D. Fla. 1991), rev’d, 953 F.2d 1498 (11th Cir.) [hereinafter HRC v. Baker II], cert, denied, 112 S.Ct. 1245 (1992); 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).

⁸ HCC v. McNary II at *103 (Walker, J., dissenting) (providing estimates of numbers of Haitians interdicted by the United States).

⁹ U.S.C.A. §1253(h)(l) (West Supp. 1992).

¹⁰ This relatively narrow legal issue implicates moral and political questions with, at best, ambiguous answers, regarding the appropriate response of a state confronting a mass migration of individuals from another state. The U.S. government program at issue, which can be likened to a preemptive strike, is one response—designed specifically to address the mass migration of Haitians following the fall of the Aristide government in September 1991. The moral and political appropriateness of this response is not addressed here, only its legality under section 243(h)(1) of the INA. (The plaintiffs also challenged the legality of the current interdiction program on several other grounds, relying on the Administrative Procedure Act, 5 U.S.C.A. §701 (1988), and the Equal Protection Clause of the U.S. Constitution. The Second Circuit, having decided the case on the basis of section 243(h)(1), did not reach these other claims. HCC v. McNary II at *7–10, 57.)

¹¹ The Second Circuit was not the first appellate court to consider whether §243(h)(l) of the INA applies beyond U.S. borders. The Court of Appeals for the Eleventh Circuit, in HRC v. Baker II, 953 F.2d at 1509–10 (one of several appellate court decisions relating to the prior U.S. program of “screening” interdicted Haitians, see supra note 7), held that §243(h)(1) did not apply beyond U.S. borders. The Eleventh Circuit’s opinion does not contain a lengthy discussion of §243(h)(1). The basis for the decision was that §243(h)(l) is found in part V of the INA and that “the provisions of Part V of the [INA] dealing with deportation only apply to aliens ‘in the United States’.” 953 F.2d at 1505, 1509–10; see also Haitian Refugee Center, Inc. v. Gracey, 600 F.Supp. 1396, 1404 (D.D.C. 1985) (holding, for the same reason, that §243(h)(1) did not apply beyond the borders of the United States), aff’d on other grounds, 809 F.2d 794, 839–41 (D.C. Cir. 1987) (see opinion of Judge Edwards, concurring in part and dissenting in part, for a discussion of 1243(h)(1)).

The Government argued that the Eleventh Circuit’s holding in HRC v. Baker II was binding on the plaintiffs in this case, and that the Second Circuit was collaterally estopped from addressing anew whether §243(h)(1) applied beyond the borders of the United States. The arguments as to whether collateral estoppel should apply, while interesting and complicated, are not discussed here, except to say that the majority opinion of the Second Circuit found no estoppel and decided the case on the merits. HCC v. McNary II at *10–21. However, Judge Walker, in dissent, found that estoppel should apply. Id. at *63–76.

¹² Pub. L. No. 96–212, 94 Stat. 102 (1980).

¹³ July 28, 1951, 189 UNTS 150 [hereinafter Convention on Refugees].

¹⁴ 8 U.S.C. §1101(a)(3) (1988).

¹⁵ In reaching this result, the court rejected the conclusion drawn by the Eleventh Circuit in HRC v. Baker II, see supra note 11, that §243(h)(1) did not apply beyond U.S. borders because it is in part V of the INA, and part V applies only to aliens within the United States. The Second Circuit reasoned as follows:

Putting aside the fact that [this argument] ignores the plain language of §243(h), this argument ascribes entirely unwarranted weight to the location of the provision ….

The statute’s location in Part V reflects its original placement there before 1980—when §243(h) applied by its terms only to “deportation.” Since 1980, however, §243(h)(1) has applied to more than just “deportation”—it applies to “return” as well (the former is necessarily limited to aliens “in the United States”, the latter applies to all aliens).

HCC v. McNary II at *29–30.

The Government’s other arguments as to the meaning of the term “alien,” all rejected by the Second Circuit, are not discussed here. Id. at *24 (restating the Government’s arguments as to the scope of the term “alien”).

¹⁶ HCC v. McNary II at *33.

¹⁷ The Second Circuit’s majority opinion focused on the Government’s arguments relating to Article 33, but Judge Walker, in dissent, made a forceful argument that the legislative history of §243(h)(1) supported a very different interpretation of the word “return.” In brief, Judge Walker contended that only aliens who physically entered the territory of the United States, either legally or illegally, are technically subject to deportation proceedings. Aliens who were detained at the border prior to entry are subject to a different type of proceeding, called an exclusion proceeding. The 1980 amendments, adding the word “return,” were designed to include within §243(h)(1) only those aliens subject to exclusion proceedings, as well as those subject to deportation proceedings, and not to include aliens outside the United States. In support of this argument, Judge Walker pointed to, among other things, a section of the U.S. House of Representatives Report on the Refugee Act of 1980, H.R. Rep. No. 608, 96th Cong., 1st Sess. 30 (1979), which states: “section 203(e) [of the Refugee Act] amends section 243(h) … to require (with some exceptions) the Attorney General to withhold deportation of aliens who qualify as refugees and who are in exclusion as well as deportation proceedings.” HCC v. McNary II at *81–89 (Walker, J., dissenting).

¹⁸ Convention on Refugees, supra note 13, Art. 33(1).

¹⁹ Among the other arguments made by the Government were (1) that the inclusion of the French word “refouler” in the English-language version of Article 33 was specifically intended to connote ejection of an alien from within the territory of a state; and (2) that the President of the United States, in the order of May 24, 1992, which authorized the new interdiction program, had interpreted Article 33 as applying only to persons within the United States, and that this interpretation was entitled to deference. The court was not impressed by either of those arguments. HCC v. McNary II at *42–46.

²⁰ The United States was not a party to the 1951 Convention on Refugees, but in effect assumed the obligations in that Convention when it acceded to the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 UST 6223, 606 UNTS 267 [hereinafter Protocol].

²¹ Id., Art. I, 606 UST at 6225 (incorporating Art. 1 of the Convention on Refugees, supra note 13) (emphasis added).

²² HCC v. McNary II at *38.

²³ Among numerous other articles, the court pointed to Article 4 (“refugees within their territories”) and Article 15 (“refugees lawfully staying in their territory”). Id. at *38–40, 47.

²⁴ Id. at *48–50 (quoting Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, UN Doc. A/CONF.2/SR.35, at 21 (1951)).

²⁵ Judge Walker, writing in dissent, was persuaded by the passage. Id. at *89–98.

²⁶ HCC v. McNary II at *50.