Can the U.S. Turn Away Asylees At Sea? A Legal Examination of the Migrant Interdiction Program

On April 12, 2022,  the Coast Guard intercepted a vessel near the Bahamas carrying sixty seven Haitian migrants. [1] The rickety, U.S.-bound boat was stopped, its migrants were transferred onto a Coast Guard cutter, and ultimately, the entire group was sent back to Haiti. [2] This is common practice for the Migrant Interdiction Program (MIP)– the Coast Guard performs interdictions by intercepting refugee boats before they enter U.S. territorial waters and returning them back to their country of origin where many face imprisonment and torture, with insufficient determination of asylum eligibility. [3] Created in 1981 by President Reagan’s Executive Order 12324, the MIP was established as a “necessary and proper means” of enforcing U.S. immigration laws by preventing undocumented migration. [4] In 1992, the MIP was expanded through the controversial Kennebunkport Order to repatriate all interdicted individuals indiscriminately, without asylum status determinations. [5] Despite blatant violations of refugee law—most notably the right to any sort of asylum plea—this order remains in effect today. [6] Following 1994, MIP procedure loosened incrementally. However, the vast majority of those interdicted are still repatriated because the burden of asylum screening is on migrants, who, with questionable plausibility of having been informed of their rights, must alert Coast Guard officials of their need for asylum before any determination is given. [7] A re-examination of the long-contested legality of the MIP is overdue– in the fiscal year 2022, the MIP has already interdicted over 4,400 Haitians and 2,000 Cubans. [8] Many scholars argue that interdiction violates multiple international human rights agreements, yet U.S. federal courts continually affirm the legal basis of the MIP under U.S. domestic law. Repeatedly denying legal protection to asylum seekers on the high seas jeopardizes the future of maritime migration. The MIP must therefore be established as an illegal operation to secure and strengthen international refugee rights.

The legal debate surrounding the MIP largely emphasizes two documents: the Refugee Convention of 1951 which is the body of international law outlining refugee rights, and the Immigration and Nationality Act (INA) which governs United States immigration policy. In terms of international law, the right to non-refoulement, which protects persecuted refugees from being turned away by host countries, pertains most closely to interdiction. [9] Non-refoulement is most prominently featured in Article 33 of the Refugee Convention, which outlines that no state shall “expel or return (‘refouler’)” a migrant back to their state of origin if they are threatened on account of “race, religion, nationality, [or] membership of a particular social group or political opinion.” [10] Article 33 is widely regarded as a cornerstone of refugee law, and its status as a peremptory norm— a fundamental principle of international law for which no permissible derogations can be made—has been attested to by the United Nations High Commissioner for Refugees (UNHCR). [11] The concept of non-refoulement is applied to U.S. domestic law through Section 243 of the INA, as amended 8 USCS § 1231. Referred to as the “domestic statutory analogue” of Article 33, this statute states that the “Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country.” [12] 8 USCS § 1231 outlines a policy of non-discrimination aimed at extending asylum rights to all refugees regardless of their country of origin, documentation status, or geographical location.

Yet, despite the application of the right to non-refoulement to international and domestic law, the U.S. has historically affirmed the legal basis of the MIP. In Haitian Refugee Center Inc. v. Baker (1991), the Haitian Refugee Center (HRC) filed a lawsuit calling for injunctive relief against agencies involved in the MIP. The HRC asserted that the practice of interdiction violated Article 33 of the Refugee Convention because it did not provide sufficient screening of refugee claims to ensure that repatriated Haitians would not face continued abuse upon return. [13] Although the district court granted the injunction, the 11th Circuit Court of Appeals sided with the U.S. government, calling the HRC’s claims that international law created enforceable rights “meritless.” [14] The court maintained that Haitians interdicted on the high seas had no “substantive rights enforceable in the United States” and that the role of non-refoulement was not deemed significant enough to warrant any consideration in the analysis of injunction removal. [15] Later, when the Kennebunkport Order was challenged in Sale v. Haitian Centers Council (1993), the Supreme Court came to a similar conclusion about interdicted refugees. [16] It held in an 8-1 decision that the president’s power to interdict was not limited by either Article 33 or 8 USCS § 1231. The Court determined that Article 33 did not apply extraterritorially as the terms “expel” and “return (‘refouler’)” applied only to refugees either “already admitted into [the] country” or “already within the territory but not yet resident there.” [17] Similarly, the Court also construed 8 USCS § 1231 to only apply to domestic refugees based on a restrictive interpretation of the word “return” as territorially applied. [18] Since it was determined that the two documents did not extend protection to extraterritorial aliens, the Court concluded that the MIP was a lawful entity. [19]

The interpretation of Article 33 as non-extendable to extraterritorial refugees is misplaced and overly restrictive. The peremptory norm status of non-refoulement makes U.S. obligations to it especially stringent, as it signals that a principle is widely accepted as a foundational international obligation, with violations severely undermining the legitimacy of international law. [20] Technically though, the U.S. has not claimed to have violated the right to non-refoulement, but has simply concluded that non-refoulement does not extend to extraterritorial refugees due to the wording of Article 33. However, basing its legal argument on the scope of “return” means that the U.S. has misinterpreted the applicability of non-refoulement by hyper-fixating on the legal protection of extraterritorial refugees while overlooking the legal restraints the MIP program is subject to. The reason that non-refoulement was determined to not apply extraterritorially in Sale v. Haitian Centers Council was due to the narrower legal definition of the French verb “refouler,” meaning “expel,” which corroborates the verb “return” in Article 33. [21] In this case, a logical fallacy plagues the Court’s ruling because drafters are bound to corroborate “return” differently across human rights documents, as non-refoulement is a blanket right non-exclusive to Article 33. [22] For example, non-refoulement is present in the American Convention on Human Rights which states that an alien cannot be “deported or returned” to a country persecuting them. [23] In this context, non-refoulement isn’t followed by the term “refouler,” and because “returned” does not imply that a refugee ever reached their destination, non-refoulement would apply extraterritorially. Thus, the Court’s fixation on the exact context of “return” would apply non-refoulement inconsistently across human rights law, creating a confusing blend of applicability contradictions, especially since many documents exercise overlapping jurisdictions. To achieve a more consistent interpretation of the applicability of non-refoulement, it is necessary to shift away from a norm that questions how refugees “qualify” for protection, and instead adopt a norm that focuses on what states cannot do to limit their protection. A state-centric focus on non-refoulement is also more responsive to the main thesis of Article 33, that refugees shall not be returned to the “frontiers of [persecuting] territories.” [24] As scholars note, nowhere does it suggest “locales from which a refugee could be returned,” making a geographical limit on the right ambiguous at best. [25] Arguably, the applicability of Article 33 to extraterritorial refugees has little to no relevance when determining the legality of the MIP under the Convention. As long as Article 33 is read in conjunction with the actions of the MIP, there is a clear violation of refugee law– even if extraterritorial refugees do not enjoy the merits of Article 33, the MIP is, in many cases, actively engaged in the returning of migrants to territories in which their “life or freedom would be threatened.” [26]

The Court’s interpretation of 8 USCS § 1231 is similarly misconstrued. The 1980 amendment to the Refugee Act and 8 USCS § 1231 specifically changed, “The Attorney General shall not deport any alien within the United States,” to “deport … any alien,” irrespective of geographical location. [27] Justice Stevens, however, argued in Sale v. Haitian Centers Council that the amendments of 8 USCS § 1231 only extended the right to apply for asylum to those who were “physically but not legally in the U.S.” [28] If this were the case, Congress could have simply specified protection limited to “aliens physically present in the U.S.” [29] Again, the Court’s restrictive interpretation effectively rewrote 8 USCS § 1231, seemingly reinstating the statute to its pre-1980 protections. Extending previous logic, refusing federally granted rights to extraterritorial migrants is separate from the issue of preserving the legality of the MIP. Only the actions and behaviors of the MIP itself provide basis for whether or not it is protected legally. 8 USCS § 1231 establishes a non-discriminatory standard for which the Attorney General cannot return imperiled refugees. Again, nowhere is a geographical limit placed on “any alien.” Irrespective of any protections for which interdicted refugees qualify, the MIP is clearly engaged in the removal of aliens back to a country where their “life or freedom would be threatened,” in direct violation of the non-removal standard of “any aliens” outlined in 8 USCS § 1231. [30]

The consequences of U.S. interdiction ripple globally. Even in the post-World War II era, protection of the full rights of refugees exists only on paper. In practice, even the most basic pillar of refugee law has been muddled and whittled down by legal loopholes like the MIP. The MIP signals the apathy of the U.S. towards refugee rights and allows interdiction to be modeled globally. Namely, scholars have noted that the uncertainty that U.S. interdiction casts over non-refoulement has at least in part contributed to the rise of Australian interdiction, where migrant ships are turned or towed back to their starting point before arriving in territorial seas. [31] By establishing that international law and domestic asylum law apply to extraterritorial refugees, and by determining that interdiction violates these documents, the extent of non-refoulement rights and international refugee protections can be solidified. More broadly, continued lax enforcement of peremptory norms and the persistent, second-tier regard for international law in domestic courts spell trouble for an increasingly interconnected world in need of international rule of law. [32]

edited by Tal Dimenstein

Sources:

[1]  Homeland Security Today, “USCG Has Interdicted More Than Double the Number of Haitian Migrants as Last Fiscal Year,” Homeland Security Today, April 21, 2022, https://www.hstoday.us/subject-matter-areas/customs-immigration/uscg-has-interdicted-more-than-double-the-number-of-haitian-migrants-as-last-fiscal-year/.

[2] Jasmine Aguilera, “The U.S. Coast Guard Is Rescuing Haitian Migrants at Sea in Record Numbers,” TIME, June 23, 2022, https://time.com/6189923/haitian-migrants-coast-guard-rescue/.

[3] Claire Gutekunstt, “Interdiction of Haitian Migrants on the High Seas: A Legal and Policy Analysis,” Yale Journal of International Law 10, no. 1 (1984): 153.

[4] Interdiction of Illegal Aliens, Exec. Order No. 12324, 46 Fed. Reg. 48109 (October 1, 1981).

[5] Azadeh Dastyari, United States Migrant Interdiction and the Detention of Refugees in Guantánamo Bay (Cambridge: Cambridge University Press, 2015), 29.

[6] Dastyari, United States Migrant, 28-29.

[7] Gutekunstt, “Interdiction of Haitian Migrants,” 162.; and Dastyari, United States Migrant, 37.

[8] Muzaffar Chishti and Jessica Bolter, “Rise in Maritime Migration to the United States Is a Reminder of Chapters Past,” Migration Policy Institute, May 25, 2022, https://www.migrationpolicy.org/article/maritime-migration-united-states-rise.

[9] Alise Coen, “International order, the rule of law, and US departures from refugee protection,” International Journal of Human Rights 22, no. 10 (2018): 1271-1272.; and Dastyari, United States Migrant, 102.

[10] Convention and Protocol Relating to the Status of Refugees art. 33, July 28th, 1951, 189 T.S. L-2545.

[11] Coen, “International order,” 1272.

[12] Harold Koh and Michael Wishnie, Human rights advocacy stories (New York: Foundation Press, 2009), 394.; and The United States Refugee Act of 1980, 8 U.S.C. § 1231 (2012).

[13] Haitian Refugee Center, Inc. v. Baker, 789 F. Supp. 1552 (S.D. Fla. 1991).

[14] Haitian Refugee Center, Inc. v. Baker, 953 F.2d 1498 (11th Cir. 1992).

[15] Id.

[16] Dastyari, United States Migrant, 29.

[17] Sale v. Haitian Centers Council, 113 S. Ct. 2549, 125 L. (92-344), 509 U.S. 155 (1993).

[18] Id.

[19] Id.

[20] Coen, “International order,” 1271. 

[21] Sale v. Haitian Centers Council, 113 S. Ct. 2549, 125 L. (92-344), 509 U.S. 155 (1993).

[22] Sir Elihu Lauterpacht and Daniel Bethlehem, The scope and content of the principle of non-refoulement: Opinion (Cambridge: Cambridge University Press, 2009), 90.

[23] Lauterpacht and Bethlehem, The scope and content, 91.

[24] Convention and Protocol Relating to art. 33, 189 T.S. L-2545.

[25] Harold Koh, “Reflections on Refoulement and Haitian Centers Council,” Harvard International Law Journal 35, no. 1 (1994): 4.

[26] Convention and Protocol Relating to art. 33, 189 T.S. L-2545.

[27] Sale v. Haitian Centers Council, 113 S. Ct. 2549, 125 L. (92-344), 509 U.S. 155 (1993).

[28] Koh, “Reflections on Refoulement,” 15. 

[29] Id.

[30] The United States Refugee Act of 1980, 8 U.S.C. § 1231 (2012).

[31] Andreas Schloenhardt and Colin Craig, “‘Turning Back the Boats’: Australia’s Interdiction of Irregular Migrants at Sea,” International Journal of Refugee Law 27, no. 4 (2015): 537, 569.

[32] Koh, “Reflections on Refoulement,” 20.