Procedural Rights of Undocumented Aliens Interdicted in U.S. Internal Waters

Procedural Rights of Undocumented Aliens Interdicted in U.S.
Internal Waters
Undocumented aliens seeking to reach the United States aboard a vessel that has reached the internal
waters o f the United States at the time o f interdiction, but who have not come ashore on United
States “ dry land,” are not entitled to deportation proceedings or other proceedings under the Immi­
gration and Nationality Act.
Apprehension of such aliens in the internal waters of the United States solely for the purpose of
interdicting or repulsing their attempt to enter the United States unlawfully does not constitute
an “ arrest” under section 287(a)(2) of the Immigration and Nationality Act and would not require
the institution of exclusion or other proceedings under the AcL
If such aliens are brought ashore on United States dry land, they would acquire the status of “ appli­
cants for admission” and would have to be inspected and screened pursuant to section 23S of
the Immigration and Nationality Act.
N o v e m b e r 2 1 , 1996
M e m o r a n d u m O p in io n fo r t h e G en era l C o u n sel
I m m ig r a t i o n and N a t u r a l iz a t io n S e r v ic e
This responds to your request for our opinion on several additional questions
related to the interdiction of undocumented aliens in vessels before they have
come ashore in the United States.1 Your request was submitted before Congress
enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
Pub. L. No. 104—208, Division C, 110 Stat. 3009, 3009-546 (1996) (“ Reform
Act” ), which substantially amended the Immigration and Nationality Act, ch. 477,
66 Stat. 163 (1952) (codified as amended at 8 U.S.C. §§1101-1503) (“ INA” ),
and thereby altered the premises of your questions in significant respects. Taking
into account the changes effected by the Reform Act, our response to your inquires
may be summarized as follows:
1. Undocumented aliens seeking to reach the United States aboard a transit ves­
sel that has reached the internal waters of the United States at the time of interdic­
tion, but who have not landed or been taken ashore on United States dry land,
are not entitled to deportation proceedings (now encompassed within the new “ re­
moval proceedings” established by section 304 of the Reform Act, INA §240,
110 Stat. 3009-589) or other proceedings under the INA.
1 Memorandum for Christopher Schroeder, Acting Assistant Attorney General, Office of Legal Counsel, from
David A. Martin, General Counsel, Immigration and Naturalization Service. Re: Rights o f Aliens Found In United
States Internal Waters (Aug. 12, 1996) ( “ INS Memo” ). Your request refines broader questions previously addressed
by this Office in opinions issued in J993 and 1994. See Immigration Consequences o f Undocumented Aliens' Arrival
in United States Territorial Waters, 17 Op. O.L.C. 77 (1993); Memorandum for T. Alexander Aleinikoff, General
Counsel, Immigration and Naturalization Service, from W alter Dellinger, Assistant Attorney General, Office o f Legal
Counsel, Re: Whether the Interdiction o f Undocumented Aliens Within United States Territorial Waters Constitutes
an 4‘Arrest’* under Section 287(a)(2) o f the Immigration and Nationality Act (Apr. 22, 1994) (“ Arrest O pinion” ).
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2. Apprehension of such aliens in the internal waters of the United States solely
for purposes of interdicting or repulsing their attempt to enter the United States
unlawfully does not constitute an “ arrest” under section 287(a)(2) of the INA
and would not require the institution of exclusion proceedings (now also encom­
passed by the new “ removal proceedings” ) or other proceedings under the INA.
If such aliens are brought ashore on U.S. dry land, however, they would acquire
the status of “ applicants for admission” and would have to be inspected and
screened pursuant to section 235 of the INA.
3. Until the State Department’s views on the matter are expressed, we defer
to the State Department on the question whether United States treaty obligations
would require it to implement non-refoulement protections if an alien apprehended
in internal waters demonstrates that his life or freedom would be threatened on
account of race, religion, nationality, membership in a particular political group,
or political opinion if he is returned to his country. We would note, however,
that to the extent such a treaty-based obligation is in conflict with the newly-
enacted provisions of the Reform Act, see, e.g., § 302(a), INA § 235(a)(1), 110
Stat. 3009-579 (“ Aliens Treated as Applicants for Admission” ), the latter would
prevail as the more recent enactment if Congress intended that result. See, e.g.,
R eid v. C overt, 354 U.S. 1, 18 (1957); Fong Yue Ting v. United States, 149 U.S.
698, 720(1893).
4. Your inquiry regarding the effect of section 414 of the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1270
(“ AEDPA” ) insofar as it enacted a new subsection 241(d) of the INA has been
rendered moot due to the repeal of that subsection by section 308(d)(2)(D) of
the Reform Act.
Our analysis of the first two questions follows.
ANALYSIS
Your inquiry raises questions concerning undocumented aliens (i.e., those lack­
ing a visa or other authorization for lawful entry into the United States) interdicted
in the “ internal waters” of the United States, which you define by reference to
certain treaty and statutory definitions.2 The internal waters thus defined could
include, for example, such locations as the straits between the Florida Keys, por­
tions of the Chesapeake Bay, or even the upper reaches of the Potomac River.
For purposes of this analysis, we assume that the aliens in question are aboard
2 The C onvention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, Part I, §11, art. 5(1), 15 U.S.T.
1606, 1609, provides: “ W aters on the landw ard side o f the baseline o f the territorial sea form part o f the internal
waters o f the S tate.’* The related classification o f “ Inland Waters** is defined for purposes of domestic law under
33 U.S.C. §2003(o) as “ the navigable w aters o f the United States shoreward of the navigational demarcation lines
dividing the high seas from harbors, rivers, and other inland waters o f the United States and the waters o f the
Great Lakes on the U nited States side of the International Boundary.”
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a vessel in transit from another country to the United States but have not landed
or disembarked on U.S. soil at the time of interdiction.
I.
Your initial question asks whether an undocumented alien interdicted in U.S.
inland waters has effected an “ entry” within the meaning of the INA and is thus
entitled to deportation proceedings. In this regard, we note that the amendments
to the INA enacted by the Reform Act have supplanted the significance of the
technical term “ entry” as a legal threshold for such procedural entitlements. See
Reform Act §§ 301(a) and 308(f), INA § 101(a)(13), 110 Stat. 3009-575, 3009-
621 (substituting the term “ admission” for “ entry” in various sections of the
INA). Before enactment of the Reform Act, an alien’s “ entry” into the United
States was generally regarded as a prerequisite to his entitlement to deportation,
as opposed to exclusion, proceedings. See Yang v. Maugans, 68 F.3d 1540, 1547
(3d Cir. 1995).
Under the amended provisions of the INA, both deportation and exclusion pro­
ceedings have been supplanted by the single, streamlined “ Removal Proceedings”
now governed by section 240 of the INA. That section provides:
Unless otherwise specified in this Act, a proceeding under this
section shall be the sole and exclusive procedure for determining
whether an alien may be admitted to the United States or, if the
alien has been so admitted, removed from the United States.
Reform Act § 304(a)(3), INA § 240(a)(3), 110 Stat. 3009-589. These removal pro­
ceedings are now called into play both with respect to those aliens who are “ appli­
cants for admission” who are not summarily removed under section
235(b)(l)(A)(i) of the INA as well as to those aliens who are “ in and admitted
to the United States” and who fall within various sub-categories of deportability.
INA § 237(a)(1), 8 U.S.C. § 1227(a)(1).
Relatedly, the Reform Act has created the new category of “ Aliens Treated
as Applicants for Admission” under section 235 of the INA. Reform Act § 302(a),
110 Stat. 3009-579. An alien’s classification within that category will now deter­
mine whether he must receive inspection, screening, and other attendant proce­
dures— including a removal proceeding under section 240 in the case of certain
applicants for admission whom the inspection officer determines are “ not clearly
and beyond a doubt entitled to be admitted” — in contrast to aliens who may
be summarily repulsed or returned without any INA screening and procedural re­
quirements. Thus, the question whether an alien’s presence on the internal waters
constitutes an “ entry” mandating “ deportation” procedures no longer reflects the
governing terminology and procedures. The relevant question now is whether such
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an alien qualifies as an “ applicant for admission” under section 235(a)(1) of the
INA, which provides as follows (emphasis added):
(1) A liens Treated a s Applicants fo r Admission. — An alien
present in the United States who has not been admitted, or who
arrives in the United States (whether or not at a designated port
of arrival and including an alien who is brought to the United States
after having been interdicted in international or United States wa­
ters) shall be deemed for purposes of this Act an applicant for ad­
mission.
Thus, aliens who are “ present in” or have “ arrive[d] in” the United States
are to be deemed “ applicants for admission” and must be accorded the inspection,
screening, and attendant procedures that will result in either admission, asylum,
or removal. That raises the question whether an alien interdicted on a vessel in
the internal waters of the United States, before he has disem barked on U.S. land,
shall be deemed “ present in the United States” or to have “ arrived in the United
States.” We conclude that the wording of section 235 yields a negative answer
to that question.
The underscored portion of section 235 contemplates the situation where an
alien is “ brought to the United States after having been interdicted in . . . United
States w a ters.” Id. (emphasis added). If an unlanded alien interdicted in United
States waters — which would include the inland waters — still must be “ brought
to” the United States, it plainly follows that Congress did not regard such an
alien as already present or arrived in the United States.3 Rather, Congress pro­
vided that the unlanded alien interdicted in United States waters must first be
“ brought to” the United States — i.e., taken ashore to U.S. dry land — before he
can be said to have “ arrived” there and before he acquires the right to be treated
as an applicant for admission.
Given our conclusion that unlanded aliens interdicted on internal waters do not
constitute “ applicants for admission,” and therefore need not be inspected or
screened pursuant to section 235(b), it necessarily follows that such aliens are
not entitled to removal proceedings (i.e., the amended INA’s substitute for depor­
tation proceedings) under section 240. Only those interdicted aliens who qualify
as applicants for admission must be referred to removal proceedings if the exam­
ining officer determines that they are not “ clearly and beyond a doubt entitled
3 This interpretation is consistent with the fact that the IN A ’s current definition o f “ United States,” 8 U.S.C.
§ 1101(a)(38), does not include waters o r airspace subject to the jurisdiction o f the United States. Moreover, as
emphasized in one recent court o f appeals opinion: “ Nor can it be said that the current definition implicitly includes
territorial w aters.” Yang v. Maugans, 68 F.3d at 1548. The court in Yang, noting that the defmition o f “ United
S tates" prior to the 1952 enactment of the INA did include “ waters . . . subject to [U.S.] jurisdiction,” ascribed
considerable significance to the absence o f “ waters” from the current definition in concluding that the “ physical
presence” requirement o f the former “ entry” test is satisfied “ only when an alien reaches dry land.” Id. al 1548-
49.
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to be admitted.” Reform Act §302(a), INA § 235(b)(2)(A), 110 Stat. 3009-582.4
Those aliens who do not land on U.S. soil, in contrast, do not constitute applicants
for admission and therefore need not be inspected or screened by an immigration
officer.
Our conclusion on this issue is fortified by court decisions interpreting the anal­
ogous concept of ‘‘physical presence in the United States” in deciding whether
aliens had effected an “ entry” under the pre-Reform Act provisions of the INA.
As demonstrated in your memorandum, INS Memo at 3-4, those decisions hold
that an arriving alien’s mere presence on U.S. waters does not establish the req­
uisite physical presence in the United States unless and until the alien has “ land­
ed” on U.S. soil. Yang v. Maugans, 68 F.3d at 1546-49; Zhang v. Slattery, 55
F.3d 732, 754 (2d Cir. 1995) (“ an alien attempting to enter the United States
by sea has not satisfied the physical presence elem ent. . . until he has landed” ),
cert, denied, 516 U.S. 1176 (1996); Chen Zhou Chai v. Carroll, 48 F.3d 1331,
1343 (4th Cir. 1995) (Chen never entered the United States because he was appre­
hended “ before he reached the shore” ).
In declining to equate presence in U.S. waters with “ presence in the United
States,” the wording of amended section 235 of the INA is consistent with these
holdings. Accordingly, both the text of the amended INA and pertinent judicial
precedents confirm the view that an unlanded alien is not entitled to removal pro­
ceedings, or any other proceedings under the INA, merely because he is appre­
hended in the internal waters of the United States. Only when such an alien has
reached or been “ brought to the United States [dry land]” does he attain the
status of an “ applicant for admission” and trigger the procedural requirements
linked to that status. Reform Act § 302(a), INA § 235(a)(1).
II.
The second question is whether an unlanded alien’s apprehension within the
internal waters constitutes an “ arrest” for purposes of section 287(a)(2) of the
INA, 8 U.S.C. § 1357(a)(2), and would therefore require the institution of exclu­
sion proceedings — i.e., what are now removal proceedings under amended section
240. In particular, INS takes the view that such apprehension constitutes an arrest
“ at least when it involves the boarding of the vessel by United States officers,
the forced diversion of the vessel at the command of United States officers, or
4 We note that section 235(a)(3) o f the amended INA provides: “ All aliens (including alien crewmen) who are
applicants for admission or otherwise seeking admission or readmission to or transit through the United States shall
be inspected by immigration officers.” (Emphasis added.) W e do not believe unlanded aliens interdicted on U.S.
internal waters constitute aliens “ otherwise seeking adm ission" who must be inspected by immigration officers
under this section. Unless that term is limited to those persons who appear before immigration officers in the United
States (or at its border) seeking admission, it would extend overinclusively to persons who m ay be hundreds or
thousands o f miles from the U nited States, but nonetheless “ seek admission” to it. Requiring immigration officers
to inspect all such persons would make no sense. Cf. Xiao v. Reno, 837 F. Supp. 1506, 1562 (N.D. Cal. 1993),
a ffd sub nom. Wang v. Reno , 81 F.3d 808 (9th Cir. 1996).
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the physical custody of an individual (for example, after being pulled from the
water).” INS Memo at 4.
Absent any purpose to hold the alien in question for processing under the INA,
prosecution, or for other legal proceedings, we do not view the apprehension of
an unlanded alien under the circumstances you describe as an “ arrest” and do
not conclude that it would require the institution of removal proceedings under
the INA.
Our 1994 Arrest Opinion concluded that “ INS interdictions of aliens within
the territorial waters do not involve taking aliens into custody and holding them
f o r fu rth er legal proceedings, and are thus not ‘arrests’ as that term is naturally
understood.” Arrest Opinion at 3 (emphasis added). The mere fact that such an
interdiction of unlanded aliens takes place in the internal waters of the United
States— e.g., on the straits of the Florida Keys— does not alter or undermine
our conclusion on that point. Because such an alien has not landed in the United
States, he is not “ present,” nor has he “ arrived,” in the United States within
the meaning of section 235 of the INA. We therefore do not consider his pre­
landing, non-prosecutorial apprehension an “ arrest” any more than if the appre­
hension occurred on non-internal territorial waters of the United States. Only if
the interdicted alien is taken into custody and held fo r the purpose o f further
immigration proceedin gs or prosecution — as opposed to being held until the ves­
sel is escorted or diverted out of United States waters— would an “ arrest” re­
sult. 5
Your memorandum specifically contends that the apprehension of unlanded
aliens in internal waters must be viewed as an arrest under the provisions of sec­
tion 287(a)(2) of the INA (INS Memo at 4). In this regard, our prior opinion
stressed that section 287(a)(2) of the INA “ is not designed to guarantee procedural
rights to illegal aliens whom the INS turns back from this country before they
have a rrived .” Arrest Opinion at 8 (emphasis added). As discussed above, an
unlanded interdicted alien has not “ arrived” in the United States unless and until
he disembarks on U.S. dry land. When such an unlanded alien is apprehended
and temporarily detained solely in order to “ turn back” his attempted entry, rather
than for the purpose of subjecting him to the procedures or sanctions of U.S.
immigration laws, the particular concerns of section 287(a)(2)’s provisions are
simply not implicated.
RICHARD L. SMFFRIN
Deputy Assistant Attorney General
Office o f Legal Counsel
5 O f course, if the alien were taken ashore for some reason— i.e., if he were “ brought to the United States"
w ithin the meaning o f section 235(a)(1)— he would be deem ed an “ applicant for admission*’ and would have to
be inspected and screened pursuant to section 235(b), which in some cases m ay lead in turn to asylum or removal
proceedings.
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