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Refuge beyond ReachHow Rich Democracies Repel Asylum Seekers$

David Scott FitzGerald

Print publication date: 2019

Print ISBN-13: 9780190874155

Published to Oxford Scholarship Online: March 2019

DOI: 10.1093/oso/9780190874155.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 18 September 2020

The North American Moat

The North American Moat

Chapter:
(p.71) Chapter 5 The North American Moat
Source:
Refuge beyond Reach
Author(s):

David Scott FitzGerald

Publisher:
Oxford University Press
DOI:10.1093/oso/9780190874155.003.0005

Abstract and Keywords

The U.S. Coast Guard intercepted more than a quarter of a million migrants, including an unknown number of refugees, between 1982 and 2015. Practices developed by the United States to stop Haitians were then copied to prevent Chinese asylum seekers from crossing the Pacific. The 1993 Sale decision by the U.S. Supreme Court to allow refoulement on the high seas still stands. The fact that there are screenings at all, whatever their serious inadequacies, is evidence of diffuse international pressure articulated through the U.S. State Department and the influence of civil society. The Canadian government flirted with maritime refoulement but was constrained by greater deference to international law and the concern that openly flouting it would potentially damage Canada’s international reputation. The United States is a world leader in defining military bases strewn across the globe as territories under its control but not its sovereignty and thus spaces where asylum seekers have limited rights.

Keywords:   migrant interdiction, Coast Guard, territoriality, Golden Venture, Haiti, shout test, non-refoulement, Sale v. Haitian Centers Council

THE U.S. COAST GUARD intercepted more than a quarter of a million migrants, including an unknown number of refugees, between 1982 and 2015. It is the “oldest [ongoing] extraterritorial interdiction, processing and detention regime in the world.”1 Over time the U.S. government has dramatically shifted how it treats people intercepted at sea and now coercively repatriates them without any hearing. This practice puts the United States far outside the international norm.2 There are few legal constraints because the U.S. Supreme Court has interpreted the strong rights of personhood in the Constitution to apply only to those present on U.S. territory or to U.S. citizens and, in some cases, legal permanent residents outside the territory. Constitutional law has limited actions within U.S. territorial waters. Neither domestic nor international law has directly constrained U.S. actions on the high seas. However, refugee advocates have used the legal process to uncover information about unsavory government practices that are then revealed to apply political pressure that yields modest restraints on the state.

The most radical move to externalize borders not only keeps asylum seekers from reaching the United States; the same patrols in the moat prevent people from leaving their own island countries to go anywhere, essentially turning their islands into cages. Effective interceptions are enabled by a wider constellation of remote control practices that include the designation of barbican spaces and caging on third-country territories, cooperation with states of origin to deter exit and to accept readmission, and even the threat of military invasion. This chapter focuses on the general contours of patrolling the North American moat, which was developed from the interception of Haitians in the Caribbean, comprising nearly half of all nationalities intercepted between 1982 and 2015, and was then adopted to intercept (p.72) Chinese in the Pacific. The following chapter examines interceptions of Cubans as a contrasting case in which the U.S. government alternated between lowering and raising the drawbridge across the Straits of Florida, depending on broader goals in the hostile relationship between Havana and Washington.

Compared with the United States, there have been far fewer landings of irregular maritime arrivals in Canada, and only one major known attempt to intercept migrants at sea and turn them back. The history of Canadian policy toward maritime asylum seekers shows that the barbican can simply be invented anywhere, and that it does not require a quasi-colonial territory. In the late 1980s the Canadian government considered pushing back intercepted migrants, without determining their refugee status, from Canadian waters as well as the high seas. However, the legal constraints in Canadian territory imposed by Canada’s Charter of Rights and Freedoms in 1982 and international criticism of refoulement on the high seas have prevented the Canadian government from exercising the most draconian options.

Where Is the United States?

Where does the “United States” begin? What does it mean to “enter” the United States? The answers are not obvious, and they have serious implications for the rights of people arriving by sea to ask for asylum. Under the Immigration Act of 1917, the definition of the United States included “any waters, territory, or other place subject to the jurisdiction thereof.”3 The 1952 Immigration and Nationality Act (INA), which in amended form is still in effect, construed the United States to mean “the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of the United States.”4 Whether the lack of references to “waters” in 1952 means that the INA does not apply to territorial waters of the United States was disputed in landmark court cases and regulations defining the rights of foreigners intercepted in the U.S. territorial sea that extends twelve nautical miles from the coast.5

The INS position in 1980 was that a foreigner apprehended within U.S. territorial waters “does not appear to have a right to apply for asylum.” At the same time, it suggested that non-refoulement provisions applied, because the government could handle such a case by towing the foreigner’s vessel to a third country where he or she would not face persecution.6 By contrast, a 1986 internal INS memorandum stated, “it is rather well settled that individuals within our territorial waters may not be forcibly removed (p.73) to the high seas” and “individuals interdicted within the territorial waters of the United States are transported to a port of the United States for an adjudication of their immigration status.7 By 1993, in the face of large-scale movements from Haiti, the State Department and Department of Justice came to disagree with the “rather well settled” 1986 INS position and supported the 1980 INS position. According to a 1993 memorandum by the Office of Legal Counsel at the Department of Justice, “Undocumented aliens interdicted within the twelve-mile zone that comprises the United States’s territorial sea are not entitled to a hearing under the exclusion provisions of the Immigration and Nationality Act.” In its view, “For purposes of exclusion under the INA, the ports of the United States—not the limits of its territorial waters—are functionally its borders.”8 The relevant statutes had not changed, but interpretations swung back and forth like a pendulum according to the expediency of managing maritime arrivals.

Until the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,9 U.S. law differentiated between the exclusion of foreigners outside the United States who were seeking admission and the deportation of foreigners already within the United States.10 The distinction mattered because foreigners in deportation proceedings had several significant advantages compared with those in exclusion hearings. In deportation hearings, the government bore the burden of proof. The foreigner had the rights to hear advance notice of charges, to appeal directly to the Federal Court of Appeals, to seek suspension of the deportation order, and to choose the country of destination if deported. By contrast, “[o]ther than protection against physical abuse, the alien seeking initial entry appears to have little or no constitutional due process protection.”11 As the Second Circuit noted, “Ironically, this dichotomy [between excludable and deportable] conferred greater legal protection upon aliens who entered the U.S. illegally and secretly than those who attempted to seek refuge by presenting themselves unsuccessfully to the officials at ports of entry.”12

In a doctrine called the “entry fiction,” physical presence within the United States by itself did not constitute legal entry.13 The Board of Immigration Appeals in 1973 formulated a three-part test to define entry that became known as the Pierre test.14 An entry had to include all three prongs: (1) physical presence in U.S. territory, (2) either inspection and admission by an immigration officer or successfully avoiding inspection, and (3) “freedom from official restraint.”

The Golden Venture court cases in the mid-1990s presented a major test of what constituted entry to the United States and the processual rights of asylum seekers in the liminal zone between sea and land. The Golden (p.74) Venture cargo ship and its nearly 300 visa-less Chinese passengers had sailed for over three months from Thailand through the Indian and Atlantic Oceans and was under Coast Guard surveillance as it approached New York. Around 2 a.m. on June 6, 1993, the captain deliberately ran the ship aground on a sandbar 100 to 200 meters off Rockaway Beach. Passenger Liu Ping recalls a man shouting in the dark, “Jump! Jump! Hurry Up! Jump into the sea! You are in America. Or they will send you back to China!”15 Around 100 passengers dove into the frigid water and struggled through the high waves. Ten passengers drowned in the surf. The rest were picked up by law enforcement in the water or swam to the beach. Many passengers subsequently asked for asylum based on their fear of coerced abortions or sterilization if they were sent back to China. Thirty-five of the passengers were eventually granted asylum.16

The legal issues included whether the passengers had (1) “entered” the United States, and thus had the greater protections of deportation hearings, (2) were simply “physically present” in the United States and could be excluded, or (3) if they were in U.S. territory in any sense. The Fourth Circuit ruled that Chen Zhou Chai never “entered” the United States because he was picked up by a boat before he reached the shore.17 The Second Circuit overturned a district court decision that presence in U.S. territorial waters constituted presence in the United States. “United States immigration law is designed to regulate the travel of human beings, whose habitat is land, not the comings and goings of fish or birds,” the court argued. It ruled that Xin-Chang Zhang “was not physically present [in the United States] until he came to the beach.”18 However, in the court’s view, Zhang never “entered” because he was under “official restraint” as he swam under the glare of circling helicopter and rescue boat floodlights and was met on the beach by law enforcement personnel who handed out blankets before detaining Zhang and the other asylum seekers.19 In his dissent in Yang v. Maugans, Judge H. Lee Sarokin argued that crossing into U.S. territorial waters constituted physical presence in the United States and met the first prong of the “entry test.” Sarokin rejected the 2-1 majority’s opinion that physical presence was not achieved until a foreigner reached dry land:

I believe it would be impossible to base a determination of physical presence in the United States on arrival on land because it is unclear precisely what “dry land” means. Does this mean touching shore that is not covered by any water at all? What is the effect of high and low tides? Has an alien reached dry land upon standing on a beach that is moist with ocean water, or does the sand need to be perfectly dry? These questions may seem absurd, but they demonstrate (p.75) how difficult it would be to premise these determinations on such a vague standard which changes as constantly as the tides.20

After 1996, “excludables” and foreigners who successfully entered illegally and were caught within two years were lumped together as “inadmissible aliens” and typically subject to the same kinds of removal proceedings, including a new form of “expedited removal” with fewer legal protections.21 The rights of many of those who successfully entered illegally were reduced to the same level as those who never legally entered in the first place. In 2002, the attorney general extended expedited removal to foreigners who arrived illegally by sea and were caught within two years.22

The Department of Justice maintained its position that foreigners interdicted in U.S. territorial waters were not entitled to admission screening or the legal protections of proceedings around “removal”—the post-1996 official euphemism for deportations—unless the foreigners were brought to U.S. territory. It did not explicitly state whether the government should follow the principle of non-refoulement for those interdicted in U.S. territorial waters:

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.23

However, the Department of Justice memo noted in passing that even if there were a treaty obligation to apply non-refoulement in U.S. territorial waters, to the extent such a treaty-based obligation is in conflict with the provisions of the 1996 Act, the latter would prevail as the more recent law. The memo cited one of the nineteenth-century Chinese Exclusion Cases that established Congress’s plenary power over immigration admissions law, even if it violates bilateral treaties.24

The U.S. Constitution, rather than international law, constrains the ability of the executive and Congress to limit rights in liminal barbican spaces in U.S. territorial waters and on its beaches. The hyper-territoriality of these discussions around questions such as whether the sand is wet and the difference between physical presence and entry highlight the significance of the territorial rights of personhood rather than universal human rights. At the same time, non-refoulement provisions introduced into U.S. law as a (p.76) consequence of signing the 1967 Protocol are much stronger protections than the statutory right to apply for asylum, as demonstrated by the government’s wild swings in its claims about whether foreigners in U.S. territorial waters are entitled by statute to apply affirmatively.

Haitians on the High Seas

The U.S. policy of intercepting migrants in international waters, including people seeking asylum, began in a sustained way in 1981 as an effort to keep out people fleeing Haiti. The U.S. State Department long described Haiti as the poorest and “most oppressive” country in the Western Hemisphere.25 In September 1963, two years after kleptocratic President François Duvalier was re-elected by a vote of 1,320,780 to 0, the first Haitian asylum seekers to make the 1,000-kilometer clandestine sea passage landed in Florida. The Immigration and Naturalization Service (INS) denied their asylum claims and returned them to Haiti. Detected flows ended for the next decade, until Jean-Claude Duvalier succeeded his father as president-for-life.26 By 1979, more than 7,500 visa-less Haitians had arrived on Florida’s shores. Washington considered Haitians to be “economic migrants” rather than “political refugees.” The U.S. government saw Haiti as a bulwark against communism and was reluctant to grant asylum to citizens of a friendly regime.27 Few Haitian asylum claims were successful despite mounting evidence from the U.S. State Department, rights groups, and reporters that Haitian authorities persecuted repatriates. “Many [repatriated Haitian nationals] will go to prison, their sole offense having been an attempt to gain asylum. In prison, many will be beaten, perhaps even tortured, and some will die as a result,” U.S. Judge James Lawrence King summarized in a 1980 asylum case.28

The North American Moat

Figure 5.1 The Caribbean

On March 15, 1980, President Jimmy Carter signed the Refugee Act that introduced a more universal category of refugees into U.S. law and replaced provisions that favored people fleeing communist countries. A month later, President Castro opened the port of Mariel to a massive boatlift that brought 125,000 Cubans to the United States (see chapter 6). More than 25,000 Haitians sailed for Florida to seek asylum around the same time. Under pressure from rights groups and their congressional allies to treat Cubans and Haitians equally, the Carter administration created a Cuban-Haitian entrants program for nationals of those countries who arrived before October 10, 1980. As public hostility to the arrival of Cubans and Haitians grew, Floridian officials successfully pressured Washington to stop the boats.29

(p.77) “Walrus Courts”

The new administration of Ronald Reagan signed a bilateral agreement with Haiti in September 1981 that allowed U.S. authorities to board private Haitian vessels in international waters if they were suspected of carrying irregular migrants bound for the United States. The Haitian government agreed to accept the return of Haitian nationals and not prosecute them for illegal departure. Otherwise all repatriations would arguably constitute refoulement. Port-au-Prince also agreed to prosecute people traffickers and to seize their vessels. As is often the case, there was slippage in the usage of “trafficking” and “smuggling.” In practice, trafficking was used to refer to smuggling. Six days after the bilateral agreement, the Reagan administration announced: “The entry of undocumented aliens from the high seas is hereby suspended and shall be prevented by the interdiction of certain vessels carrying such aliens.”30 The interdictions would be “given maximum publicity in Haiti” to deter further departures.31 Initially, the program exclusively targeted Haitians. Through the early 1990s, the U.S. Coast Guard intercepted more Haitians than any other nationality, followed by Cubans. The largest spikes took place in 1992 and 1994, as shown in figure 5.2.

The North American Moat

Figure 5.2 Maritime interceptions of migrants by the U.S. Coast Guard, 1982–2015.

SOURCE: U.S. Coast Guard 2016. http://www.uscg.mil/hq/cg5/cg531/AMIO/FlowStats/FY.asp. Accessed October 11, 2016. The database was subsequently removed from the link.

Three main rationales guided the decision to intercept Haitians in the Windward Passage near the Haitian coast rather than in U.S. waters or on U.S. shores, even though a third of the vessels carrying irregular migrants (p.78) historically had been headed to countries other than the United States.32 The U.S. government always cited the safety of passengers in transit as a primary reason for interceptions close to Haiti, and there is no question that sailing long distances in rickety boats was dangerous and led to numerous people drowning. On just one day in 1981, the bodies of thirty-three Haitian people washed onto a Florida beach after their boat hit a reef in high surf.33 Rarely mentioned was that in the absence of legal paths to reach the United States to ask for asylum, a dangerous sea passage was the only way to travel. Another rationale for interception in the Windward Passage was technical. It was easier to concentrate U.S. forces in a geographic bottleneck before migrant boats dispersed at sea. The final rationale was not discussed publicly, but it lies at the heart of the hyper-legal logic of remote control. Under the provisions of the Refugee Act of 1980, foreigners “physically present in the United States or at a land border or port of entry” could ask for asylum.34 The provisions in this section did not apply outside U.S. territory. By keeping (p.79) asylum seekers away from U.S. land borders or ports, this avenue for protection was foreclosed.35

There is a second avenue for asylum in the 1980 Refugee Act that brought U.S. law into compliance with the non-refoulement provisions of the 1967 Protocol to the UN Refugee Convention.36 The 1981 bilateral agreement included the understanding that the U.S. government did not intend to return Haitians who qualified for refugee status.37 Thus, the agreement prevented Haitians from reaching U.S. territory where they could apply for asylum and have access to exclusion or deportation hearings, but it maintained the principle of non-refoulement in international waters. The agreement did not include details of how U.S. officials would determine at sea if an intercepted passenger was a refugee. Reagan’s executive order simply stated that when the Coast Guard interdicted vessels outside U.S. territorial waters, “no person who is a refugee will be returned without his consent.”38

According to a directive issued to the INS officials seconded to Coast Guard vessels, “To the extent that it is, within the opinion of the Commanding Officer of the United States Coast Guard vessel, safe and practicable, each person aboard an interdicted vessel shall be spoken to by an INS officer, through an interpreter.” Every intercepted person would be asked, “Why did you leave Haiti?” and “Is there any reason why you cannot return to Haiti?” If “the interview suggests that a legitimate claim to refugee status exists, the person involved shall be removed from the interdicted vessel, and his or her passage to the United States shall be arranged.”39

Sympathetic organizations on the U.S. mainland struggled to establish standing in court to act on behalf of the asylum seekers, but the Haitian Refugee Center in Florida eventually sued the federal government. The case revealed that INS officials conducting the interviews had extremely limited knowledge of political conditions in Haiti. In practice, many interdicted passengers were interviewed superficially, questioned as a group rather in private, where they could make sensitive claims, or not interviewed at all.40 A Coast Guard document obtained through the Freedom of Information Act stated that the length of the interviews was determined not by the facts of the asylum seekers’ cases but by the length of time until the cutter docked in Haiti to repatriate those onboard.41 Haitians intercepted at sea did not have access to lawyers. There was no appeals process for decisions made by low-level bureaucrats. Between 1981 and September 1991, only 28 of the 24,600 Haitians intercepted were allowed to enter the United States to apply for asylum. The rest were repatriated.42 A New York Times editorial criticized the interviews as “walrus courts—kangaroo courts at sea.”43

(p.80) The U.S. Court of Appeals for the Eleventh Circuit ruled 2-1 that INS officials had unreviewable discretion to make refugee status determinations and that the Immigration and Nationality Act does not apply outside U.S. territory:

Plaintiffs contend that because the United States Government is reaching out into the Caribbean to interdict them, it is effectively extending the borders to that extent. We decline to interpret the statute this broadly. The plain language of the statute is unambiguous and limits the application of the provision to aliens within the United States or at United States’ borders or ports of entry.44

In effect, the decision legitimated the extension of border control activities outside U.S. territory without extending rights to those affected by that control. Judge Joseph Hatchett’s dissent criticized the majority for accepting “a pure legal fiction” that treated Haitians differently from other excludable foreigners because the Haitians had been forcibly kept away from U.S. territory.45

At the bottom of this case is the government’s decision to intercept Haitian refugees on the high seas, in international waters, to prevent them from reaching United States territory. If these refugees reach United States territory, they will have the right to insist, in United States courts, that they be accorded proper, fair, and adequate screening procedures. In addition, they will receive counseling from the Haitian Refugee Center (HRC) and volunteer lawyers who will ensure the proper application of United States immigration laws. The interdiction program is a clear effort by the government to circumvent this result.

The United Nations Protocol on Refugees, and the United States immigration laws which execute it, were motivated by the World War II refugee experience. Jewish refugees seeking to escape the horror of Nazi Germany sat on ships in New York Harbor, only to be rebuffed and returned to Nazi Germany gas chambers. Does anyone seriously contend that the United States’s responsibility for the consequences of its inaction would have been any less if the United States had stopped the refugee ships before they reached our territorial waters? Having promised the international community of nations that it would not turn back refugees at the border, the government yet contends that it may go out into international waters and actively prevent Haitian refugees from reaching the border. Such a contention makes a sham of our international treaty obligations and domestic laws for the protection of refugees.46

Hatchett’s dissent neatly summarized both the logic of remote control and the historical origins of the non-refoulement provisions that the (p.81) U.S. government sought to circumvent. Even when a federal district court upheld the government’s position on non-refoulement by agreeing that the 1967 Protocol was not a self-executing treaty, the judge excoriated the deeper logic of refoulement on the high seas. “The Government’s conduct is particularly hypocritical given its condemnation of other countries [such as the British colony of Hong Kong] who have refused to abide by the principle of non-refoulement,” Judge Sterling Johnson wrote. He called the non-refoulement provision in Article 33 “a cruel hoax and not worth the paper it is printed on” without congressional action to implement Article 33 or the Supreme Court’s reinterpretation of earlier cases.47 Civil rights organizations were unsuccessful at using the courts to stop the Haitian interdiction program, though by forcing the matter into court, they were able to expose the details of government practices that would have otherwise remained obscured.

Meanwhile, Washington pressured Port-au-Prince to keep its citizens from leaving. The 1982 Mica Amendment included Haitian cooperation “in halting illegal emigration” as a condition of U.S. foreign aid. Haitian critics of the regime argued that the government’s deal with the United States on the interdiction program was “surrendering Haitian sovereignty” with little to show in return. “This criticism may induce Duvalier to limit Haiti’s cooperation with the United States on this issue, especially if he sees no tangible increase in bilateral aid or security assistance,” a CIA report warned.48 After Duvalier was overthrown in 1986 and replaced by a series of short-lived dictatorships, Haitian authorities continued to cooperate with the U.S. interdiction program. CIA officials warned that in the event of estrangement with Washington, “the Haitian government might decide to reject repatriation of refugees intercepted by the US Coast Guard.”49 The National Security Council’s internal documents from the period described Haitians trying to reach the United States as “refugees.” It called for engagement with the military government and rejected a policy of “benign neglect” because growing chaos would likely lead to increased flows to the United States.50

The North American Moat

Figure 5.3 Haitian refugees file off a U.S. Coast Guard cutter on March 2, 1992, after being forcibly returned to Port-au-Prince to be registered by Haitian officials. Maritime interceptions in the Caribbean became a model for later U.S. policies in the Pacific as well as Australia’s “Pacific Solution” beginning in 2001.

Photo by Ron Bull/Toronto Star via Getty Images.

After a military coup overthrew democratically elected president Jean-Bertrand Aristide on September 30, 1991, President George H. W. Bush imposed economic sanctions and suspended interdictions in a gesture to highlight the illegitimacy of the new regime. The departure of Haitians was portrayed as visible proof that the regime lacked popular support. Yet after thousands fled, Washington decided that what was meant as a symbolic gesture was too costly and announced on November 18 that it would resume interdiction and repatriation. Voice of America broadcasts urged Haitians not to attempt the dangerous journey. Many ignored the warning, and during the (p.82) six months following the coup, the U.S. Coast Guard interdicted over 34,000 Haitian passengers. Officials screened and allowed in 4,301 and brought them to the United States.51 Another 550 were resettled in Belize, Honduras, Venezuela, and Trinidad and Tobago.52 The rest were repatriated, even though a federal judge found that “repatriated Haitians face political persecution and even death on their return.”53 As the New York Times reported:

In recent months, nearly every time the United States Coast Guard has returned fleeing boat people to Haiti, plainclothes agents have pulled returnees out of Red Cross processing lines and hauled them away for arrest. The disfigured body of one returnee, Yvon Desanges, was recently found near the airport, his eyes plucked out, a rope around his neck, his hands tied and a red handkerchief crudely marked “President of the Red Army.”54

With its short-term capacity to conduct shipboard screenings overwhelmed, the Coast Guard transferred about 12,500 Haitian nationals to the U.S. naval base at Guantanamo Bay (discussed in detail in chapter 5). By May 1992, the navy decided that even Guantanamo was beyond capacity.55 A system based on keeping most asylum seekers out of U.S. territory, but which at (p.83) least recognized the principle of non-refoulement, was about to strip away that protection.

A “Floating Berlin Wall”

In one of the biggest shifts in the history of U.S. asylum policy, President Bush issued what became known as the Kennebunkport Order on May 24, 1992. It stated that the United States was not obliged under international law to apply the UN Refugee Convention’s non-refoulement provision to “persons located outside the territory of the United States.56 The Kennebunkport Order revoked Reagan’s executive order that had specified that when the Coast Guard interdicted vessels outside U.S. territorial waters, “no person who is a refugee will be returned without his consent.”57 The May 1992 order made non-refoulement for persons outside U.S. territory flexible by providing that “the Attorney General, in his unreviewable discretion, may decide that a person who is a refugee will not be returned without his consent.” Bush further ordered the State Department to create “cooperative arrangements with appropriate foreign governments for the purpose of preventing illegal migration to the United States by sea.”58

The Coast Guard intercepted Haitians in international waters and immediately transported them back to Port-au-Prince, where they were turned over to the Haitian military for fingerprinting, interrogation, and in some cases, arrest.59 Legal scholar Harold Koh describes the program as a “floating Berlin Wall” around Haiti that prevented its citizens from fleeing to any country, not only the United States, thus interfering with their internationally recognized right to exit.60 Washington was not just shifting U.S. immigration control to the Haitian coast. At the same time, the United States was creating emigration control that prevented Haitians from fleeing anywhere beyond the neighboring Dominican Republic. This is the most extreme form of the externalization of borders because it includes control of both entry and exit.

The shift in U.S. policy in the short run was driven by its limited capacity to follow a model of interception, detention, and repatriation when faced with thousands of irregular maritime arrivals. In the long run, the shift was driven by political will. The United States could clearly develop the capacity to screen tens of thousands of people for asylum status if it were a major priority. The treatment of Cubans discussed in the next chapter shows that the U.S. government has routinely exercised that capacity when it has the political will rooted in foreign policy preferences for people fleeing communist countries. In the case of Haitian refugees, the Bush administration chose a more expedient solution.

(p.84) Restrictive policies developed by the right often remain in place when the left takes power. As a Democrat presidential candidate, Bill Clinton announced his opposition to Bush’s policy. “I am appalled by the decision of the Bush administration to pick up fleeing Haitians on the high seas and forcibly return them to Haiti before considering their claim to political asylum,” Clinton said. “This policy must not stand.”61 Yet when Clinton took office as president in January 1993, he continued to follow the Kennebunkport Order and, indeed, between January 15, 1993, and November 26, 1994, the Coast Guard carried out “the largest single peacetime operation” in its history.62 Operation Able Manner’s fleet of seventeen cutters, nine aircraft, and five U.S. Navy ships interdicted more than 25,000 Haitians.63 Although a reinstated President Aristide terminated the 1981 bilateral migration agreement in 1994, the Haitian government continued to permit repatriations and routinely allowed U.S. military aircraft to make shoreline flights at low altitude to deter Haitians from taking to the sea.64 Port-au-Prince occupied a vulnerable place in the international hierarchy of sovereignty and played a critical role in facilitating remote control as a condition for U.S. economic and political support.

After lower courts rendered inconsistent decisions about whether non-refoulement provisions applied to U.S. interdictions in international waters, the Supreme Court issued a landmark ruling in Sale v. Haitian Centers Council, Inc. in 1993. By a vote of eight to one, the Court ruled that neither the Immigration and Nationality Act nor the 1967 Protocol to the Refugee Convention applied to Coast Guard action in international waters. The Court made this ruling even as the majority opinion strongly implied that Haitians interdicted at sea might well meet the definition of refugees:

As the District Court stated in an uncontested finding of fact, since the military coup “hundreds of Haitians have been killed, tortured, detained without a warrant, or subjected to violence and the destruction of their property because of their political beliefs. Thousands have been forced into hiding.”65

The majority also recognized that the goal of U.S. policy was to prevent refugees from reaching U.S. territory to access non-refoulement protections. “For 12 years, in one form or another, the interdiction program challenged here has prevented Haitians such as respondents from reaching our shores and invoking those protections.”66 The Court lamented that U.S. policy in international waters “may even violate the spirit of [non-refoulement provisions in] Article 33; but a treaty cannot impose uncontemplated extraterritorial (p.85) obligations on those who ratify it through no more than its general humanitarian intent.”67

Justice Harry Blackmun penned a scathing dissent. “What is extraordinary in this case is that the Executive, in disregard of the law, would take to the seas to intercept fleeing refugees and force them back to their persecutors—and that the Court would strain to sanction that conduct,” he wrote. Blackmun noted that the executive branch had previously recognized that the non-refoulement provision of the 1967 Protocol applied in international waters. The Department of Justice had reviewed the 1981 bilateral agreement between the United States and Haiti, and while it argued that the Immigration and Nationality Act provisions around asylum did not apply to “aliens who have not reached our borders (such as those on board interdicted vessels),” it did argue that they were protected by “the U.N. Convention and Protocol.”68

In a case brought before the Inter-American Commission on Human Rights, which hears cases related to member countries of the Organization of American States, the Commission rejected the majority’s argument in Sale that Article 33 did not apply to Haitians interdicted in international waters. The Commission further ruled that U.S. interdiction policy violated the non-binding 1948 American Declaration of the Rights and Duties of Man by preventing Haitians from seeking asylum in other countries in the region where Haitians had previously received asylum, such as the Dominican Republic, Jamaica, Bahamas, Cuba, Venezuela, Suriname, Honduras, and Turks and Caicos. The Commission held that the policy illegally discriminated against Haitians, in contradistinction to Cubans interdicted at sea, and provided inadequate asylum hearings. The U.S. government refused to comply with the Commission’s recommendation that the U.S. provide compensation to the plaintiffs in the case.69 There is no supranational court that creates binding decisions on the U.S. government.

The Executive Committee of UNHCR criticized the Sale decision as “a setback to modern international refugee law which has been developing for more than forty years.” Legal experts in the United States and around the world largely repudiated the majority opinion.70 Maarten den Heijer notes the flaw in the argument that U.S. immigration law did not apply to the interdiction operation, when the operation was explicitly justified by a presidential order stating that U.S. immigration law was being violated simply by the intent to enter without inspection.71 The Immigration and Nationality Act creates a smuggling offense out of the intent to bring foreigners into the United States without authorization and provides for its prosecution. The U.S. Court of Appeals for the District of Columbia has ruled that the (p.86) smuggling provisions of the law apply outside U.S. territory, thus allowing for prosecutions even if the individuals do not reach U.S. territory. As with the prosecutions in pre-clearance zones in foreign airports discussed in chapter 4, the U.S. government prosecutes people for crimes committed outside U.S. territory without allowing asylum rights in those same spaces.72

The losing counsel in the Sale case, Yale law professor Harold Koh, argued in 1994 that international norms often work through diffuse mechanisms by becoming intertwined with domestic policymaking. This logic “predicts that in time, the United States will comply with the norm of ‘extra-territorial’ non-refoulement.”73 Koh’s reasoning turned out to be prescient if not entirely fulfilled. Although the judiciary gave the executive carte blanche to ignore the non-refoulement principle in international waters, in practice, the U.S. government continued to conduct some form of screening, which ranged from systematic assessments of intercepted Cubans to a passive and cursory process for intercepted Haitians.

On May 8, 1994, the Clinton administration announced that it would resume asylum screening for Haitians intercepted at sea. The shift came not because of any court decision or change in the law, but rather as a result of concerted pressure by civil rights interest groups and their congressional allies. Deposed President Aristide joined the U.S. Congressional Black Caucus in decrying as racist the policy of not screening Haitians while screening Cubans, who were more likely to be white. Clinton’s shift in policy remained discretionary, however, and did not change the Kennebunkport Order.74

The following month, the U.S. and Jamaican governments signed an agreement allowing the United States to process refugees in Jamaican waters for six months and an unimplemented agreement to do the same in the British dependency of Turks and Caicos.75 The Coast Guard began taking interdicted Haitians to the harbor of Kingston, Jamaica, for asylum screenings aboard the 1,000-bed U.S. Navy hospital ship Comfort. Rejected applicants were transferred to a rented Ukrainian cruise ship, the Ivan Franco, for later repatriation by U.S. Coast Guard cutters.76 The Clinton administration announced in July that up to 10,000 recognized Haitians asylees would be housed on U.S. military bases in Panama and eventually in the Caribbean countries of Antigua, Grenada, St. Lucia, Dominica, Suriname, Panama, and the Dominican Republic. Asylees would be given protection until conditions improved in Haiti and they could be repatriated.77 The Turks and Caicos agreement stands out for requiring the islands’ government to pass a law that excluded the Turks and Caicos courts from jurisdiction over any civil suit connected to the operation against the U.S., British, or Turks (p.87) and Caicos governments.78 Only the agreements to detain asylum seekers at the U.S. base in Panama and to conduct screenings in Jamaican waters were implemented. Most intercepted Haitians were taken to Guantanamo Bay.79

The immense paramilitary effort to repel the thousands who clearly met the refugee definition generated a countervailing political incentive to create an alternative path that a symbolic handful of refugees could access. The U.S. embassy had processed refugee claims at its embassy in Port-au-Prince since 1992 in one of four in-country processing programs active at the time, including programs in Cuba, the Soviet Union, and Vietnam. Initially, eligibility to apply in-country was limited to those who were likely targets of prosecution because of their professions or memberships in associations. Eligibility was expanded to all Haitians in May 1992 when the United States stopped shipboard asylum screenings. Two more refugee processing centers in Haiti were opened by May 1993. A total of forty-five to sixty U.S. and International Organization for Migration (IOM) staff processed applications. The embassy urged Haitians to apply at the processing centers, claiming that Haitians had an equal chance of proving their case in Haiti and offshore. However, only 2% of the 58,000 who applied in-country were recognized, compared to 30% of those processed off Jamaica. Many Haitians were leery of applying at a processing center in Haiti. By lining up on the street outside a U.S. office in Haiti, they would call attention to themselves as dissidents and exacerbate their vulnerability.80 Human rights organizations documented multiple cases of Haitians who faced serious persecution after they applied to the program and were waiting for a decision. Washington cancelled in-country processing as it ratcheted up pressure on the dictatorship to leave office.81

On September 15, 1994, Clinton announced on television that a U.S. fleet was en route to Haiti to remove coup leader Raoul Cédras. After detailing the brutality of the regime, Clinton announced that stopping the flow of refugees was an explicit goal of the United States.

Thousands of Haitians have already fled toward the United States, risking their lives to escape the reign of terror. As long as Cédras rules, Haitians will continue to seek sanctuary in our Nation. This year, in less than 2 months, more than 21,000 Haitians were rescued at sea by our Coast Guard and Navy. Today, more than 14,000 refugees are living at our naval base in Guantanamo. The American people have already expended almost $200 million to support them, to maintain the economic embargo. And the prospect of millions and millions more being spent every month for an indefinite period of time loom ahead unless we act. Three hundred thousand more Haitians, 5 percent of their entire (p.88) population, are in hiding in their own country. If we don’t act, they could be the next wave of refugees at our door. We will continue to face the threat of a mass exodus of refugees and its constant threat to stability in our region and control of our borders.82

Four days later, as two U.S. aircraft carrier groups sailed toward the island and the 82nd Airborne Division was on its way to parachute into Haiti at midnight, Cédras stepped down and avoided a full-scale U.S. invasion. Operation Uphold Democracy turned into a relatively nonviolent occupation that lasted until March 1995. The motivations for the operation were mixed, but the U.S. government had demonstrated its willingness to deploy the full force of its military to cage refugees away from its shores. The mobilization inadvertently belied the U.S. government’s claim that it did not have the capacity to screen thousands of Haitians for asylum claims. A state that could seize a foreign country and its population of 7.6 million overnight could surely process asylum claims if it had the political will.

The “Shout Test”

After Operation Uphold Democracy, discussions of remote control shifted from the public spectacle of a threatened invasion to negotiations in the back rooms of Geneva. In 1996, the U.S. delegation to the UNHCR forced its Executive Committee to water down non-refoulement provisions in its official Conclusions that state the position of the UNHCR on the interpretation of the Refugee Convention. The Conclusions are not legally binding, but they provide guidance for how the UNHCR believes the convention should be applied. The statements require unanimity among the Executive Committee, in which the United States plays a strong role as a consistent donor of more than a third of the UNHCR budget.83 The U.S. delegates pushed the 1993 Sale case logic that the non-refoulement principle does not apply in international waters, and even assailed the idea that it applied at borders. In the face of U.S. pressure, the UNHCR Conclusions in 1996 and 1997 struck the language on non-refoulement found in the 1977 Conclusions, which had said that refugees arriving at borders would not be expelled, and from the 1981 Conclusions, which said that “asylum-seekers at sea should not only not be forcibly returned, but rather disembarked at the next port of call, or in the case of mass influxes, should be admitted, at least on a temporary basis.”84 An internal e-mail from a leading official at the UNHCR explained, “[t]he bottom line is that the Europeans are aghast at the U.S., but aren’t going to take them on, and agree that we mustn’t have a floor fight.”85

(p.89) The State Department eventually agreed to the “humanitarian” but not “legal” principle of proscribing refoulement at borders.86 The discretionary quality of humanitarianism is a major reason for its bad odor among many legal advocates. The avoidance of recognizing a legal obligation was consistent with the U.S. government’s position in front of the Inter-American Commission on Human Rights following the Sale case.

Any United States action to provide additional asylum avenues to interdicted Haitians—such as the safe haven at Guantanamo Bay and the refugee screening that was conducted for Haitians at different times on Coast Guard cutters, at Guantanamo Bay, on the Naval Ship Comfort in Jamaican territorial waters, and even within Haiti itself—has been and continues to be wholly discretionary under both U.S. domestic and international law. These additional benefits that have been provided to interdicted Haitians over the years are just that—additional benefits, and not the source of binding legal obligation or standards.87

By 2003, the U.S. position appeared to soften. The Executive Committee Conclusion upheld “the principle of nonrefoulement without geographic limitation, whether at frontiers of states, in territorial waters, the high seas, or within the territory of a state where embarkation is prevented.” By acquiescing to this language in the Executive Committee Conclusion, the United States apparently reverted to its position before the Kennebunkport Order and the Sale case and brought it back into line with the international norm that had developed in previous decades. Refugee rights advocate Bill Frelick attributes the shift to U.S. diplomatic engagements with the UNHCR and the issue linkage with the Palermo anti-smuggling and anti-trafficking protocols pushed by the United States, which included strong non-refoulement provisions in return for international cooperation on otherwise tightened mobility controls. The limitation on U.S. remote control came not from the courts, but from more diffuse international pressure articulated through the U.S. State Department. The State Department is generally more concerned with foreign policy ramification of U.S. practices, and indeed in 1978 unsuccessfully tried to convince the INS to include a notice on the I-589 asylum application form of a right to have one’s case reviewed by the UNHCR.88

In 2007, however, the Bush administration responded to a UNHCR advisory opinion on the extraterritorial application of Article 33,89 and it reverted to the Sale position that Article 33 only applies “within the territory of the Contracting States.”90 The State Department maintained that it “has (p.90) been the longstanding policy of the United States to take actions outside the United States consonant with non-refoulement obligations that apply to individuals within U.S. territory under the Refugee Convention, as well as under the Convention Against Torture” but described these as a matter of humanitarian policy rather than legal obligation. Thus, Washington insisted on its discretion to apply Article 33 outside U.S. territory.

The U.S. position on non-refoulement swung back toward a more generous interpretation during the Obama administration. The United States had signed the Convention Against Torture (CAT) in 1988 and ratified it in 1994. Article 3 of the CAT obligates its signatories not to “expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”91 The Committee Against Torture that interprets the treaty considers the CAT to apply extraterritorially “to protect any person, citizen or non-citizen without discrimination subject to the de jure or de facto control of a State party.”92 While the U.S. position under the George W. Bush presidency in 2007 was that the CAT did not apply to U.S. actions outside U.S. territory,93 in 2014, the Obama administration moved toward accepting CAT in “all places that the State party controls as a government authority,” including the U.S. naval station at Guantanamo and “U.S.-registered ships and aircraft.”94 Given that interdicted migrants are taken aboard U.S. ships, the pendulum of non-refoulement thus swung back toward the international norm. The norm of extraterritorial non-refoulement is not deeply institutionalized in the United States and could be reinterpreted by a different president or courts. The practical question after Sale became not so much whether the United States would simply return migrants intercepted in international waters without screening, but the quality of that screening given that applicants are denied lawyers, appeals, and other rights.95 The parameters of the U.S. debate over non-refoulement outside U.S. territory are set by accreted responses to crises rather than a coherent interpretation of law.

Following mass departures from Haiti during an outbreak of violence in 2004, Bush announced that “we will turn back any refugee that attempts to reach our shore.”96 Bush’s statement was remarkable for its open pledge to interdict “refugees.” Under Operation Able Sentry, the thinnest level of non-refoulement screening was applied. Haitians were not told they had the right to seek asylum, interpreters were not always available, and the Coast Guard only screened those who passed “the shout test.” As Frelick describes the test, “Only those who wave their hands, jump up and down, and shout the loudest—and are recognized as having done such—are even afforded, in theory, a shipboard refugee pre-screening interview.”97

(p.91) In an institutionalized version of the hear-no-evil principle, the Coast Guard trains its sailors not to elicit information from people seeking asylum unless ordered to do so and to limit their communication with interdicted migrants to what is “necessary to accomplish embarkation, initial briefing, security, safety, medical care, food distribution and disembarkation.”98 Unlike Cuban nationals, Haitians and other non-Cubans were not read a statement offering them the chance to ask for a shipboard protection interview. The systematic minimization of opportunities to ask for asylum on board U.S. ships captures in miniature the macro-logic of remote control policies. The policies are designed to prevent U.S. authorities from hearing pleas for asylum.

Of the 905 Haitians intercepted by the Coast Guard in February 2004, only three passed the shout test, and they were rejected in the “credible fear” test onboard the cutter. The Coast Guard forcibly returned all 905 during a chaotic weekend when the Haitian president was forced into exile. The Coast Guard dumped the group, some of whom were shackled, onto the dock at Port-au-Prince where they were met by a taunting crowd that was forced back at gunpoint to allow the returnees to pass. By 2005, the State Department appeared to have at least cursory monitoring in place for repatriates at the docks in Port-au-Prince. A new Coast Guard training regime included provisions that asylum seekers could show fear of being returned in a variety of ways, including “withdrawal, sadness, panic, screaming, and passing notes.” Only one of the 445 Haitians intercepted at sea in 2013 passed the test, even though roughly half of Haitians able to present their claim in a full asylum process in the United States were recognized as refugees.99

Washington increasingly relies on cooperation with buffer states to patrol the Caribbean. Since 2004, the U.S. Coast Guard had collaborated with Bahamian authorities to interdict migrants sailing through the Windward Passage bound for the United States or the Bahamas. By placing Bahamian “ship riders” on board U.S. vessels, the United States can conduct operations in Bahamian waters. One advantage of this arrangement from the Bahamian government’s perspective is that Washington finances the expense of repatriation. Haitians are the primary intercepted nationality. A second advantage for the Bahamas is that by availing itself of U.S. interdiction capacity, it can prevent migrants from reaching Bahamian territory. As a U.S. diplomatic cable explained, “Intercepting migrants before they hit the beaches of New Providence or other islands [in the Bahamas], to become the targets of law enforcement and repatriation efforts, and attendant publicity, reduces and simplifies the government’s work in many respects.”100 The 2004 U.S.-Bahamas Agreement prohibits refoulement and does not make any (p.92) exceptions for extraterritorial interceptions.101 However, “UNHCR has no evidence that these provisions are monitored or enforced or that penalties have been assessed for failures of compliance.”102

The Dominican Republic is a secondary conduit for Dominicans and third-country nationals trying to enter the United States by crossing the Mona Passage to Puerto Rico on homemade wooden boats called yolas. Under the dry foot policy in effect until January 2017, Cubans reaching Puerto Rico were “assured of an asylum hearing once their feet touch American soil,” as explained in chapter 6. Cubans paid three times the smuggling fee charged to Dominicans. Groups that a State Department cable called “exotic aliens, such as Chinese” paid up to ten times the Cuban price. Washington strengthened the Dominican navy’s capacity to stop flows of people and drugs by providing Zodiac inflatables, computer equipment to track trafficking cases, payment for fuel and sailors’ rations, and by placing Dominican patrols in the Mona Passage “under U.S. Coast Guard operational control.” Under the Mérida Initiative, the Dominican Republic and Haiti became eligible for further funding to build migration-control capacity.103 In 2016, the Obama administration requested US$600,000 for the Dominican government to combat transnational organized crime, including migrant smuggling and human trafficking.104

Capacity building is accompanied by publicity campaigns and readmissions agreements. In 2004, the U.S. embassy began sponsoring “an intensive public information campaign emphasizing the hazards of yola travel, the untrustworthy nature of smugglers, and the difficulties of life as an illegal immigrant in the United States.”105 A formal memorandum of agreement is not necessary for effective interdiction. The Dominican Republic routinely allowed repatriation in the 1990s even in the absence of a formal agreement.106 By 2003, the U.S. and Dominican governments had signed a readmissions agreement that included repatriation of third-party nationals intercepted at sea. As with the Bahamian agreement, it included a non-refoulement provision without a monitoring mechanism.107 The policies of patrolling the moat and turning coastal states into buffers overlap in practice.

The U.S. Pacific Solution

The U.S. government adopted the model for intercepting Haitians in the Caribbean to keep irregular Chinese migrants away from U.S. territory. In April 1993, the U.S. Coast Guard intercepted a ship 200 miles off Honduras carrying 200 Chinese people trying to reach the United States. Honduran (p.93) authorities allowed the U.S. Coast Guard to force the ship to a Honduran port, where it was met by two INS officers who interviewed the passengers to determine whether they had political asylum claims. While the INS concluded that five passengers were refugees, the local UNHCR office determined that none met the standard. The Honduran government repatriated the entire group at U.S. expense.108

The North American Moat

Figure 5.4 Pacific Rim

The Clinton administration issued a confidential directive on June 18, 1993, that the United States would “attempt to interdict and hold smuggled aliens as far as possible from the U.S. border.”109 Over the next decade, U.S. forces intercepted thirty-two ships carrying more than 5,000 Chinese nationals.110 In a Coast Guard procedure that uniquely applied to citizens of the People’s Republic of China (PRC), interdicted migrants were given a questionnaire in which they were asked why they left. The answers were transmitted to Washington where asylum officers remotely decided whether to conduct an in-person asylum prescreening interview before repatriation.111

The U.S. government has worked with several countries to intercept irregular migrants at sea. These policies are most effective when they are done secretly. In July 1993, the U.S. Coast Guard intercepted three Taiwanese ships carrying 659 PRC nationals bound for California. It held them 100 kilometers off the coast of the Mexican port of Ensenada.112 Emboldened by the Sale ruling two weeks earlier, the Clinton administration decided that rather than conducting asylum screenings, it would ask the Mexican government to give the Chinese temporary asylum in exchange for U.S. payment for their eventual deportation. Although over the previous three years, the U.S. embassy in Mexico City had quietly paid Mexico to deport third-country nationals bound for the United States, this time the Mexican (p.94) government refused the U.S. offer because of the publicity surrounding the standoff and the open implication in the media that Mexico City was doing Washington’s dirty work.113 After more than a week of negotiations while the Chinese passengers sweltered on their ships eating military rations and rice delivered by U.S. authorities, the Coast Guard forced the boats to Ensenada. The Mexican government did not consider requests for asylum and summarily deported the passengers by air from Tijuana. “They wanted to go to the United States. We don’t want people coming here thinking they can use Mexico as a platform,” Mexican diplomat Andres Rozental announced.114 At the time, Mexico was not a party to the UN Refugee Convention.115

“Snakehead” people-smugglers continued to bring several hundred Chinese by cargo ship to the coast of Baja California or Sinaloa and disembark them for travel by land to the U.S. border. In 1999, Mexican authorities intercepted almost 400 Chinese nationals on the Baja route. Surveillance of the Mexican coast redirected landings further south. Between 1999 and 2001, a ring smuggled Chinese nationals through Ecuador and Mexico to the United States for a fee of US$20,000–30,000. In 2000, authorities uncovered a route that offloaded Chinese passengers without visas on sandbars off the Pacific coast of Guatemala and then transported them in tractor trailers on a forty-hour journey across Mexico.116

The U.S. government took extreme steps to ensure that intercepted Chinese nationals being repatriated through U.S.-controlled spaces were not able to ask for asylum. For example, in April 1993, when Washington paid the costs of Mexico City to deport 300 Chinese nationals, the U.S. government refused to allow the charter flight to land in Alaska to refuel so that passengers could not ask for asylum on U.S. soil. The plane eventually arrived in China after refueling in Europe.117 In 1995 the U.S. military used Wake Island as a stopover point to repatriate 147 Chinese interdicted 1,600 kilometers southeast of Hawaii. Wake is an incorporated territory administered by the U.S. military in the remote Western Pacific where the Immigration and Nationality Act does not apply. The following year, the Coast Guard intercepted the Xing DA off Bermuda with eighty-three Chinese passengers aboard who had been hiding in the ship’s hold during its three-month transit. The Coast Guard flew them back to China via Guantanamo and Wake Island to avoid landing on territory where they could ask for asylum.118

Unauthorized travel continued along a new route to the unincorporated U.S. territory of Guam, which is three times closer to China than the continental United States. Foreigners arriving on Guam could apply for asylum. By May 1999, nearly 600 Chinese were detained on Guam in tent cities while U.S. authorities screened them. Even those who passed their credible-fear (p.95) interviews and were not detained were prevented from traveling to the U.S. mainland, where many of their lawyers were based. Under strong pressure from the Guamanian governor, whose nonvoting delegate to Congress unsuccessfully filed a bill to prevent future asylum seekers from filing applications on Guam,119 the Clinton administration ordered U.S. authorities to detain Chinese interdicted at sea on the neighboring island of Tinian in the Commonwealth of Northern Mariana Islands. Most provisions of U.S. immigration law did not apply in the Commonwealth until 2008.120 Foreigners physically present or arriving in the Commonwealth, including people brought there after being intercepted in international or U.S. waters, did not have a statutory right to ask for asylum. Intercepted Chinese were detained in a tent complex at North Field, best known as the airfield used by the Enola Gay to launch its atomic bomb attack on Hiroshima in 1945.

The effort to prevent Chinese from reaching Guam was highlighted most vividly in 1999, when a U.S. Navy surveillance plane spotted a thirty-five-meter fishing trawler with 102 Chinese passengers on board heading toward Guam. As the trawler’s captain apparently tried to ground the ship on a reef, a landing party from a Coast Guard inflatable boat seized control of the trawler and steered it back out to sea at the last minute. A Coast Guard cutter then towed the trawler and its passengers to Tinian. Although Tinian was not a U.S. territory, the INS sent forty officials to conduct credible-fear interviews there. Eighty-nine Chinese asylum seekers were eventually sent to the mainland after passing the initial screening.121 Most provisions of U.S. immigration law were extended to the Commonwealth beginning in 2008. The right to seek asylum in the Commonwealth under U.S. immigration law is scheduled to begin in 2020, at which time the logic of detention on Tinian would presumably end.122

As in Guantanamo and aboard U.S. Coast Guard cutters, the U.S. government used the barbican space of Tinian to conduct discretionary screenings without providing asylum seekers the rights they would have enjoyed on U.S. territory. The norm of non-refoulement continued to moderately constrain state practice even when the government rejected any formal legal obligation.

Canada’s Coasts

Canada is essentially an island surrounded by two enormous oceans and a high-capacity U.S. buffer. Few asylum seekers have tried to cross these seas. When they have, the Canadian government has intercepted them (p.96) and considered refoulement. As in the United States, the activities of the authorities in territorial waters are limited by the protections of foundational domestic law. Canadian authorities have been far more deferential to international laws and norms than their U.S. counterparts, however, presumably because the Canadian government has long sought to maintain a positive image at home and abroad as a humanitarian country that plays by international rules. So few asylum seekers have attempted to arrive by sea compared with the United States that the strength of this norm has not been fully tested.

The first irregular maritime arrivals asking for sanctuary in Canada were a group of 987 mostly Estonian refugees who had been living in Sweden and who faced possible repatriation to the Soviet Union. Frustrated by delays in negotiations over their resettlement to Canada, the Estonians took matters into their own hands and sailed to Canada in nine vessels that landed between August 1948 and November 1949. A third of them arrived on the SS Walnut in the largest irregular maritime landing of people seeking refuge on Canada’s eastern coast in the twentieth century. Canadian authorities detained them and set up an ad hoc screening process. All the maritime arrivals were admitted, except for twelve who were deported for failing to meet Canadian requirements or for posing a security risk. The notion that the Estonians were “fleeing the Reds” and their European origins generated favorable media coverage that helped their cases.123

Few asylum seekers since then have arrived by sea. The small numbers who manage to make it to Canadian coasts stir a great deal of political excitement. In August 1986, 152 Sri Lankan asylum seekers who had sailed on the Aurigae were rescued in lifeboats off Newfoundland and given temporary residence status based on their Sri Lankan nationality. Sri Lanka was on a “B-1 list” of presumed unsafe countries to which Canada would not deport. It was later discovered that the group had traveled via West Germany, a presumably safe country for asylum seekers, and hidden that fact from Canadian authorities. The following year, 174 Sikhs from the Amelie arrived on the coast of Nova Scotia and asked for asylum. The conservative government of Prime Minister Brian Mulroney recalled Parliament for an emergency session to try and push through the Refugee Deterrents and Detention Act, which would have given immigration officials the discretionary power to interdict ships with unauthorized immigrants in Canadian or international waters and turn them away without hearing any asylum claims. The Senate rejected the bill.

(p.97) Senator Jerahmiel S. Grafstein (Liberal, Ontario) laid out the objections based on Canada’s non-refoulement obligations in the Refugee Convention and the costs to its international humanitarian brand:

If a boat is turned away, how will we ever know if that boat contained real refugees or not? Was not this exactly what Canada accused others of when the Vietnamese boat people fled their land? Canada protested when Thailand did precisely that, and now Canada, humane Canada, generous Canada, is proposing laws to do what we preached to others would be wrong. Is this leadership? Is this the international example Canada wishes to give?124

A compromise maintained the principle of non-refoulement by specifying that ships with asylum seekers could be prevented from entering Canadian waters only if the vessel could safely return to another country that protects refugees from persecution.125

In a rare case of Canadian involvement in refouling asylum seekers after interception at sea, U.S. and Canadian authorities in 1998 collaborated with the Senegalese navy to intercept the African Queen, which was transporting 192 Tamil asylum seekers from Sri Lanka through Senegalese territorial waters on a roundabout route to North America. After the Tamils were returned to Sri Lanka with the assistance of the IOM, they were arrested, many were abused, and one was severely tortured.126

Canadian policymakers during this period did not typically pursue interception on the high seas because of both logistical and legal challenges that limited their options compared with U.S. and Australian policymakers. Canada did not have the same naval forces in place or quasi-colonial territory readily available for offshore processing as the United States. As Martha Nixon, a high-ranking Canadian immigration official, summarized in a November 1999 parliamentary hearing:

It’s my understanding that the U.S. has a considerable capacity, particularly in the south Pacific, to be available and aware of boats that are passing. They often have the capacity to intercept those boats and direct them toward an island that is a protectorate as opposed to a U.S. territory. This makes it easier for them to actually do the processing of people, because they are not on U.S. soil and so they do not have the right to make a refugee claim.127

Compared with Australia, Canadian options were limited by its Charter of Rights and Freedoms, as Greg Fyffe from the immigration department explained to the committee:

(p.98)

We certainly are looking at the experience of the U.S. and Australia for best practices. We’re involved in a lot of conversations with them. I think our situation is probably closest to that of Australia, although they do not have a charter of rights, so they have more flexibility in some ways. But their basic practice is similar to ours. They intercept the boats on the high seas, escort them to land, and give the people refugee hearings, although they have a detention facility at Port Hedland in which they keep all people before removal. They have worked extensively with the Chinese to assist in removal, and we are interested in learning some of the lessons from there.128

Only a handful of boats reached Canada in the 1990s, but the boats that made it were large. Over a span of six weeks in 1999, four boats carrying 599 Chinese passengers reached the coastal waters of British Columbia. The federal government detained the passengers and created a temporary barbican on the Esquimalt naval base that was designated as a “port of entry” in which the asylum seekers were denied access to lawyers until processing was finished. The liminal space on Vancouver Island was briefly transformed into what geographer Alison Mountz calls “not Canada.”129 More than 500 of the passengers asked for asylum. Many abandoned their claims when released and were presumed to have traveled to New York City’s Chinatown.130

The Canadian government puts little effort into patrolling its moat for reasons of geography, political institutions, and foreign policy. The vast Pacific and Atlantic cannot be crossed by tiny craft like those traversing the Straits of Florida and the Mediterranean. When faced with the few instances of large ships arriving with asylum seekers, Canadian authorities considered refoulement but were deterred by Canada’s strong rights of territorial personhood in its Charter and the non-refoulement provisions in the Refugee Convention it signed in 1969. Political elites have been more deferential to the judiciary and have not constantly probed the boundaries of the law to the extent of the other cases studied in this volume.131 Ignoring international law would incur reputational costs to an international brand based on multilateralism and humanitarianism. The small scale of irregular maritime arrivals has never been high enough to override those international interests, but the fact that refoulement was proposed by the conservative government in 1987 suggests that the international constraints are shaky. When asylum seekers do arrive by sea, Ottawa has shown its willingness to carve barbican spaces out of its mainland that function as temporary, miniature Guantanamos.

(p.99) Conclusion

Forty-two years after the U.S. Coast Guard shadowed the St. Louis to keep it from landing European Jews in Florida, it began a sustained operation in the same waters that has intercepted a quarter of a million migrants. Many of them sought greater economic opportunity or family reunification. Many plainly were refugees. Bracketing the issue of the mixed causes that often motivate international movements, it is impossible to know the balance of refugees and other types of migrants because of shortcomings in the screening measures. Incontrovertibly, Washington effectively pushed control over its borders hundreds of kilometers into the Caribbean and thousands of kilometers into the Pacific while simultaneously trying to avoid extending legal obligations.

The United States is often an outlier among Western democratic countries in its refusal to join widely adopted international treaties.132 The 1993 Sale decision stands out amid a much larger body of international law clearly stating that the principle of non-refoulement applies outside a state’s territory.133 There is no supranational court that provides binding oversight over U.S. practices. Other governments have flirted with the majority interpretation in Sale, including Canada, but they have typically been reeled back by greater deference to international law and the concern that openly flouting it would potentially damage their international reputations.

Practices developed in moments of supposed political crisis, such as the arrival in South Florida of Haitians around 1980, were then transported to other contexts such as preventing Chinese asylum seekers from crossing the Pacific. Similar policies of patrolling the moat, establishing barbican spaces, and relying on the cooperation of origin and buffer countries became part of the system of remote control. Policies are often implemented by conservative governments and continued under progressive governments until they are eventually taken for granted. The U.S. Coast Guard routinely intercepts vessels on the high seas even though such a practice was considered anathema by world powers in the 1930s, as shown in chapter 2, because it violated cherished principles of freedom of navigation.

The main story of remote control in the North American moat is its huge scale and the normalization of patrolling policies, but it is also important to consider the institutional limitations on state action. The U.S. Constitution and Canadian Charter ensure strong rights of territorial personhood, which is why Washington and Ottawa have been so creatively cynical about defining what constitutes “entry into the territory.” The United States is a world leader (p.100) in defining military bases strewn across the globe as territories under its control but not its sovereignty and thus where asylum seekers have limited rights. On the high seas, the executive branch practices some self-restraint despite the wide latitude offered by Sale. The fact that there are screenings at all, whatever their serious inadequacies, is evidence of diffuse international pressure articulated through the State Department and the influence of civil society. There is a robust network of rights organizations in the United States that has not been effective in directly restraining most extraterritorial practices of the U.S. government. However, taking the cases to court has yielded embarrassing details of cynical government interceptions and screening practices. Rights groups, journalists, and elements within the State Department concerned with human rights have revealed the grim consequences of refoulement. These facts then become part of subsequent court cases and the public record. Their primary effect is not to legally constrain what the government does, but rather to apply modest political checks that prompt the government to continue at least cursory screenings and not openly refoule refugees. (p.101)

Notes:

(1.) Azadeh Dastyari, United States Migrant Interdiction and the Detention of Refugees in Guantánamo Bay (Cambridge: Cambridge University Press, 2015), p. 6.

(2.) Thomas Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Control (Cambridge: Cambridge University Press, 2011), p. 75.

(3.) 1917 Immigration Act, Pub. L. No. 301, 39 Stat. 874, §1.

(4.) 1952 Immigration and Nationality Act, Pub. L. No. 82-414, 66 Stat. 163, §38.

(5.) Reagan expanded the U.S. territorial sea from three to twelve nautical miles in 1988 in keeping with the international norm (Proclamation No. 5928 reproduced in 103 Stat. 2981 (1989)); Yang v. Maugans, 68 F.3d 1540, 1548 (3d Cir. 1995).

(6.) Memorandum for John Harmon, Assistant 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) cited in U.S. Department of Justice, Office of Legal Counsel, “Immigration Consequences of Undocumented Aliens’ Arrival in United States Territorial Waters,” Washington, DC, October 13, 1993.

(7.) Memorandum for Alan C. Nelson, Commissioner, INS, from Maurice C. Inman, Jr., General Counsel, INS, Re: Interdiction of Aliens (February 21, 1986) cited in U.S. Department of Justice, Office of Legal Counsel, “Immigration Consequences of Undocumented Aliens’ Arrival in United States Territorial Waters,” Washington, DC, October 13, 1993.

(8.) “Immigration Consequences of Undocumented Aliens’ Arrival in United States Territorial Waters,” U.S. Department of Justice, Office of Legal Counsel, Washington, DC, October 13, 1993, pp. 79, 83.

(9.) 110 Stat. 3009-546.

(10.) 66 Stat. 204, 8 U.S.C. §1251; Landon v. Plasencia, 459 U.S. 21, 26–27 (1982).

(11.) Correa v. Thornburgh, 901 F.2d 1166, 1171 n. 5 (2d Cir. 1990).

(12.) Augustin v. Sava, 735 F.2d 32, 36-37 (2d Cir. 1984).

(13.) Kendall Coffey, “The Due Process Right to Seek Asylum in the United States: The Immigration Dilemma and Constitutional Controversy,” Yale Law & Policy Review 19, no. 2 (2001): p. 310; Leng May Ma v. Barber, 357 U.S. 185, 188 (1958).

(14.) Matter of Pierre, WL 29484 (BIA 1973).

(15.) Jason Dzubow, “Remembering the Golden Venture,” Asylumist, June 6, 2010, http://www.asylumist.com/2010/06/06/remembering-the-golden-venture.

(16.) Mike Argento, “Golden Venture 20 Years Later: Many Lives Remain in Limbo,” York Daily Record, May 31, 2013.

(17.) Chen Zhou Chai v. J Carroll M. 48 F. 3d 1331 (4th Cir. 1995). In the court’s opinion, the INS had properly placed Chen into exclusion rather than deportation proceedings.

(18.) Zhang v. Slattery 55 F.3d 732, 754 (2d Cir. 1995); see also Yang v. Maugans 68 F.3d 1540 (1995).

(19.) Zhang v. Slattery, 55 F.3d 732, 755 (2d Cir. 1995).

(20.) Yang v. Maugans 68 F.3d 1540, 1553 (3rd Cir. 1995).

(21.) 8 CFR 235.3.

(22.) Stephen H. Legomsky, “The USA and the Caribbean Interdiction Program,” International Journal of Refugee Law 18, no. 3–4 (2006): p. 694. Expedited removal was expanded in 2004 to include noncitizens apprehended within 100 miles of a land or sea border who had entered without inspection within the previous two weeks. In 2017, the Trump administration issued a memorandum that proposed to apply expedited removal throughout the country for those who had entered without inspection within the previous three months. See “Implementing the President’s Border Security and Immigration Enforcement Improvement Policies,” Department of Homeland Security, February 20, 2017, https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Implementing-the-Presidents-Border-Security-Immigration-Enforcement-Improvement-Policies.pdf.

(23.) “Procedural Rights of Undocumented Aliens Interdicted in U.S. Internal Waters,” U.S. Department of Justice, Office of Legal Counsel, November 21, 1996, pp. 382, 384.

(24.) Fong Yue Ting v. United States, 149 U.S. 698, 720(1893).

(25.) Alex Stepick, “Unintended Consequences: Rejecting Haitian Boat People and Destabilizing Duvalier,” in Western Hemisphere Immigration and United States Foreign Policy, edited by Christopher Mitchell (University Park: Pennsylvania State University Press, 1992), p. 127; Haitian Refugee Ctr. v. Civiletti, 503 F. Supp. 442, 475 (S.D. Fla. 1980).

(26.) Stepick, “Unintended Consequences,” 130–131.

(27.) Josh DeWind and David H. Kinley, III, Aiding Migration: The Impact of International Development Assistance on Haiti (Boulder: Westview Press, 1988), p. 30.

(28.) Haitian Refugee Ctr. v. Civiletti, 503 F. Supp. 442, 482 (S.D. Fla. 1980). See also Alex Stepick, “Haitian Boat People: A Study in the Conflicting Forces Shaping U.S. Immigration Policy,” Law and Contemporary Problems 45, no. 2 (1982): p. 178.

(29.) Stepick, “Unintended Consequences,” 139–141.

(30.) Proclamation No. 4865, “High Seas Interdiction of Illegal Aliens,” September 29, 1981.

(31.) United States as a Country of Mass First Asylum: Hearing before the Subcommittee on Immigration and Refugee Policy of the Senate Committee on the Judiciary, 97th Cong., 1st Sess. (1981), p. 6. (Statement of Thomas O. Enders, Assistant Secretary of State for Inter-American Affairs.)

(32.) U.S. Department of Justice, “Proposed Interdiction of Haitian Flag Vessels,” Opinions of the Office of Legal Counsel, vol. 5 (1981): p. 243.

(33.) Gregory Jaynes, “33 Haitians Drown as Boat Capsizes off Florida,” New York Times, October 26, 1981.

(34.) 94 Stat. 105, 8 U.S.C. 1158(a).

(35.) Gary W. Palmer, “Guarding the Coast: Alien Migrant Interdiction Operations at Sea,” Connecticut Law Review 29 (1996): pp. 1565–1585.

(36.) The United States joined the 1967 Protocol in 1968; Refugee Act of 1980 codified at 8. U.S.C. §1253(h).

(37.) “Agreement between the United States of America and Haiti Effected by Exchange of Notes Signed at Port-au-Prince Sep. 23, 1981,” 33 U.S.T. 3559, TIAS. No. 10,241.

(38.) Executive Order 12,324, “Interdiction of Illegal Aliens,” September 29, 1981.

(39.) Haitian Refugee Center, Inc. v. Baker. 953 F.2d 1498 (11th Cir.), cert denied, 502 U.S. 1122 (1992); see also Palmer, “Guarding the Coast,” 1575.

(40.) “Haitian Interdiction Case” (United States), Inter-American Commission on Human Rights, Report No. 51/96, Case 10.675, March 13, 1997, ¶128.

(41.) “INS Procedural Changes,” U.S. Coast Guard Headquarters Telecommunications, March 13, 1991, http://www.cod.edu/people/faculty/yearman/FOIA/haitianrefugees/INS_interview_change.pdf.

(42.) U.S. Human Rights Policy toward Haiti: Hearing before the Legislation and National Security Subcommittee of the Committee on Government Operations, House of Representatives, 102nd Cong., 2nd Sess. (Statement of Harold J. Johnson, General Accounting Office), April 9, 1992, p. 7.

(43.) “Bodies on the Beach,” New York Times, October 28, 1981.

(44.) Haitian Refugee Center, Inc. v. Baker. 953 F.2d 1498, 78–79, 97 (11th Cir. 1992).

(45.) Haitian Refugee Center, Inc. v. Baker. 953 F.2d 1498, 133 (11th Cir. 1992).

(46.) Haitian Refugee Center, Inc. v. Baker. 949 F.2d 1109 (11th Cir. 1991).

(47.) Haitian Centers Council v. McNary, No. 92 Civ. 1258 U.S. Dist. Lexis 8452, at *4 (E.D.N.Y. June 5, 1992).

(48.) “Haiti: Prospects for the Duvalier Regime,” CIA Directorate of Intelligence, December 1982, https://www.cia.gov/library/readingroom/docs/CIA-RDP83S00855R000200100002-1.pdf; Stepick, “Unintended Consequences,” 147–148.

(49.) “Haiti: Prospects for the Military Regime,” CIA Directorate of Intelligence, October 17, 1988, https://www.cia.gov/library/readingroom/docs/CIA-RDP04T00990R000200140001-4.pdf; Stepick, “Unintended Consequences,” 151.

(50.) “Policy Review Group Meeting on Haiti,” National Security Council, December 10, 1987, p. 2, https://www.cia.gov/library/readingroom/docs/CIA-RDP89B00224R000401500003-4.pdf.

(51.) Cited in Sale v. Haitian Centers Council, Inc. 509 U. S. 155, 166 (1993); U.S. Human Rights Policy toward Haiti: Hearing before the Legislation and National Security Subcommittee of the Committee on Government Operations, House of Representatives. (Statement of Harold J. Johnson, General Accounting Office), April 9, 1992, p. 7.

(52.) Dastyari, United States Migrant Interdiction, 22.

(53.) Haitian Centers Council, Inc. v. McNary 969 F.2d 1326 (2d Cir. 1992).

(54.) Howard W. French, “Months of Terror Bring Rising Toll of Deaths in Haiti,” New York Times, April 2, 1994.

(55.) Palmer, “Guarding the Coast,” 1575. In June 1993, the U.S. government closed the Guantanamo Bay facility detaining Haitians and brought them to the United States to file asylum claims (“Haitian Interdiction Case” [United States], Inter-American (p.290) Commission on Human Rights, Report No. 51/96, Case 10.675, March 13, 1997, ¶¶59, 62.

(56.) Executive Order 12807, “Interdiction of Illegal Aliens,” May 24, 1992.

(57.) Executive Order 12324, “Interdiction of Illegal Aliens,” Sep. 29, 1981.

(58.) Executive Order 12807, “Interdiction of Illegal Aliens,” May 24, 1992.

(59.) Victoria Clawson, Elizabeth Detweiler, and Laura Ho, “Litigating as Law Students: An Inside Look at Haitian Centers Council,” Yale Law Journal 103, no. 8 (1994): p. 2345.

(60.) Harold Hongju Koh, “The ‘Haiti Paradigm’ in United States Human Rights Policy,” Yale Law Journal 103, no. 8 (1994): p. 2396.

(61.) Koh, “The ‘Haiti Paradigm,’ ” 2397.

(62.) Palmer, “Guarding the Coast,” 1577.

(63.) “U.S. Sets Up Sea Barricade to Halt Haiti Refugees,” Los Angeles Times, January 17, 1993.

(64.) Palmer, “Guarding the Coast,” 1575; Robert B. Watts, “Caribbean Maritime Migration: Challenges for the New Millennium,” Homeland Security Affairs (April 2008): p. 8.

(65.) Sale v. Haitian Centers Council, Inc. 509 U. S. 155, 162 (1993).

(66.) Sale v. Haitian Centers Council, Inc. 509 U. S. 155, 159–160 (1993).

(67.) Sale v. Haitian Centers Council, Inc. 509 U. S. 155, 183 (1993). Koh, “The ‘Haiti Paradigm,’ ” 2419 points out a major problem with this logic. “It is nonsense to presume that treaty parties contract solely for domestic effect. Generally applied, such a presumption would permit the United States to commit genocide or torture on the high seas, notwithstanding the universal, peremptory prohibitions of the Genocide and Torture Conventions,”

(68.) United States as a Country of Mass First Asylum: Hearing before the Subcommittee on Immigration and Refugee Policy of the Senate Committee on the Judiciary, 97th Cong., 1st Sess. (1981), pp. 208–209. Letter from U.S. Department of Justice, Immigration and Naturalization Service to Hon. Edward M. Kennedy dated November 13, 1981.

(69.) “Haitian Interdiction Case” (United States), Inter-American Commission on Human Rights, Report No. 51/96, Case 10.675, March 13, 1997, ¶¶162–189.

(70.) See Stephen H. Legomsky, “The USA and the Caribbean Interdiction Program,” International Journal of Refugee Law 18, no. 3–4 (2006): pp. 677–695 for a review.

(71.) Maarten den Heijer, Europe and Extraterritorial Asylum (Oxford: Hart, 2012). p. 311.

(72.) 8 U.S. Code §1324. United States v. Delgado-Garcia, 374 F. 3rd 1137 (DC Cir. 2004).

(73.) Koh, “The ‘Haiti Paradigm,’ ” 2408.

(74.) Dastyari, United States Migrant Interdiction, 34.

(75.) Memorandum of understanding between the Government of the United States and the Government of Jamaica for the establishment within the Jamaican territorial sea and internal waters of a facility to process nationals of Haiti seeking refuge within or entry to the United States of America, entered into force 2 June 1994, KAV 3901, Temp State Dept No 94-153; Memorandum of understanding between the Government of the United Kingdom, the Government of the Turks and Caicos Islands, and the Government of the United States to establish in the Turks (p.291) and Caicos Islands a processing facility to determine the refugee status of boat people from Haiti, entered into force 18 June 1994, KAV xxxiii 3906, Temp State Dept No 94-158.

(76.) “U.S. Grants Asylum to 6 of 35 at Sea,” Associated Press, June 18, 1994.

(77.) Michael Gordon, “In Shift, U.S. Will No Longer Admit Haitians at Sea,” New York Times, July 6, 1994; “U.S. Policy on Haitian Boat People Appears Lost at Sea,” Interpreter Releases 71, no. 26 (July 11, 1994): pp. 885–888.

(78.) Angus Francis, “Bringing Protection Home: Healing the Schism Between International Obligations and National Safeguards Created by Extraterritorial Processing,” International Journal of Refugee Law 20, no. 2 (2008): p. 306.

(79.) Maria E. Sartori, “The Cuban Migration Dilemma: An Examination of the United States’ Policy of Temporary Protection in Offshore Safe Havens,” Georgetown Immigration Law Journal 15 (2001): p. 329.

(80.) “Haitian Interdiction Case” (United States), Inter-American Commission on Human Rights, Report No. 51/96, Case 10.675, March 13, 1997, ¶¶64–65.

(81.) “No Port in a Storm: The Misguided Use of In-Country Refugee Processing in Haiti,” Americas Watch, National Coalition for Haitian Refugees, and the Jesuit Refugee Service, vol. 5, no. 8, September 1983.

(82.) William J. Clinton, “Address to the Nation on Haiti,” in Public Papers of the Presidents of the United States: William J. Clinton, Book 2—August 1 to December 31, 1994 (Washington, DC: Government Printing Office), p. 1559.

(83.) Gil Loescher, Alexander Betts, and James Milner, The United Nations High Commissioner for Refugees (UNHCR): The Politics and Practice of Refugee Protection (New York: Routledge, 2012), p. 97.

(84.) Bill Frelick, “‘Abundantly Clear’: Refoulement,” Georgetown Immigration Law Journal 19 (Winter 2004): pp. 251–253.

(85.) Frelick, “ ‘Abundantly Clear,’ ” 255.

(86.) Frelick, “ ‘Abundantly Clear,’ ” 258.

(87.) “Haitian Interdiction Case,” ¶120.

(88.) Rebecca Hamlin and Philip E. Wolgin, “Symbolic Politics and Policy Feedback: The United Nations Protocol Relating to the Status of Refugees and American Refugee Policy in the Cold War,” International Migration Review 46, no. 3 (2012): p. 610.

(89.) “Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol,” UNHCR, January 26, 2007.

(90.) “U.S. Observations on UNHCR Advisory Opinion on Extraterritorial Application of Non-Refoulement Obligations,” U.S. State Department, December 28, 2005, https://2001-2009.state.gov/s/l/2007/112631.htm.

(92.) “General Comment No. 2: Implementation of Article 2 by State Parties,” UN Committee Against Torture, CAT/C/GC/2, January 24, 2008, ¶7.

(93.) “List of Issues to Be Considered During the Examination of the Second Periodic Report of the United States of America: Response of the United States of America,” U.S. Department of State, 2006, http://www.state.gov/j/drl/rls/68554.htm.

(94.) “Concluding Observations on the Third to Fifth Periodic Reports of United States of America,” UN Committee Against Torture, CAT/C/USA/CO/3-5, November 20, 2014, ¶10, https://www.state.gov/documents/organization/234772.pdf.

(95.) Dastyari, United States Migrant Interdiction.

(96.) Frelick, “ ‘Abundantly Clear,’ ” 245.

(97.) Frelick, “ ‘Abundantly Clear,’ ” 246.

(98.) Dastyari, United States Migrant Interdiction, 140.

(99.) “Repatriation of 250 Haitian Migrants,” Wikileaks, November 22, 2005, https://wikileaks.org/plusd/cables/05PORTAUPRINCE2871_a.html; Frelick, “ ‘Abundantly Clear,’ ” 246; T. Alexander Aleinikoff, “Yale Law School Sale Symposium: International Protection Challenges Occasioned by Maritime Movement of Asylum Seekers,” Opinio Juris, March 16, 2014, http://opiniojuris.org/2014/03/16/sale-symposium-international-protection-challenges-occasioned-maritime-movement-asylum-seekers/.

(100.) “Coast Guard Stops Haitian Migrant Surge, But Long Term Immigration Challenges Remain,” Wikileaks, February 21, 2008, https://wikileaks.org/plusd/cables/08NASSAU160_a.html.

(101.) “Agreement between the Government of the United States of America and the Government of the Commonwealth of the Bahamas Concerning Cooperation in Maritime Law Enforcement,” June 29, 2004, ¶16.

(102.) Aleinikoff, “Yale Law School Sale Symposium,”

(103.) “Mérida Initiative: The United States Has Provided Counternarcotics and Anticrime Support but Needs Better Performance Measures,” GAO, July 21, 2010, p. 5.

(104.) “Congressional Budget Justification Department of State, Foreign Operations, and Related Programs, FY 2016,” February 2, 2015, p. 360, http://www.state.gov/s/d/rm/rls/ebs/2016/pdf/index.htm.

(105.) “Dominican Illegals: USDOJ and USCG Action Request,” Wikileaks, January 30, 2004, https://wikileaks.org/plusd/cables/04SANTODOMINGO594_a.html; Robert B. Watts, “Caribbean Maritime Migration: Challenges for the New Millennium,” Homeland Security Affairs (April 2008): p. 6.

(106.) Statement of Captain Anthony S. Tangeman on Coast Guard Migrant Interdiction Operations before the Subcommittee on Immigration and Claims of the Committee on the Judiciary, House of Representatives,, 106th Cong., 1st Sess., May 18, 1999, http://testimony.ost.dot.gov/test/pasttest/99test/Tangeman1.htm (accessed October, 27, 2016; access to the link was subsequently blocked.)

(107.) “Dominican Illegals: USDOJ and USCG Action Request,” Wikileaks, January 30, 2004, https://wikileaks.org/plusd/cables/04SANTODOMINGO594_a.html.

(108.) Deborah Sontag, “Mexico’s Position on Aliens Contradicted by Past Deeds,” New York Times, July 15, 1993.

(109.) “Alien Smuggling,” Presidential Decision Directive/ NSC-9, June 18, 1993, p. 1.

(110.) Statement of Captain Anthony S. Tangeman.

(111.) Dastyari, United States Migrant Interdiction, 141.

(112.) Anthony DePalma, “3 Ships Adrift in a Diplomatic Limbo,” New York Times, July 1, 1993.

(113.) Sontag, “Mexico’s Position on Aliens; “Alien Smuggling,” Presidential Decision Directive/ NSC-9, June 18, 1993, p. 4.

(114.) William Claiborne, “U.S., Mexico End Impasse on Chinese,” Washington Post, July 15, 1993.

(115.) “Recomendación 214-1993. Caso de la deportación de los inmigrantes de origen chino,” Comisión Nacional de los Derechos Humanos, México, October 26, 1993.

(116.) “Organized Crime and Terrorist Activity in Mexico, 1999–2002,” report prepared by the Federal Research Division, Library of Congress under an Interagency Agreement with the U.S. Government, February 2003, https://archive.org/stream/MexicoFOIA/Organized%20Crime%20and%20Terrorist%20Activity%20in%20Mexico,%201999-2002_djvu.txt.

(117.) Sontag, “Mexico’s Position on Aliens.”

(118.) Paul J. Smith, “Military Responses to the Global Migration Crisis: A Glimpse of Things to Come,” The Fletcher Forum of World Affairs 23 (1999): pp. 86–87.

(119.) “H.R.945—To Deny to Aliens the Opportunity to Apply for Asylum in Guam,” https://www.congress.gov/bill/106th-congress/house-bill/945/all-actions-without-amendments.

(120.) 122 Stat. 754–876, § 702(a).

(121.) William Branigin, “Guam’s Own ‘China Beach,’” Washington Post, May 6, 1999.

(122.) “U.S. Immigration Law in the Commonwealth of the Northern Mariana Islands (CNMI),” USCIS, April 18, 2018, https://www.uscis.gov/laws/immigration-commonwealth-northern-mariana-islands-cnmi/us-immigration-law-commonwealth-northern-mariana-islands-cnmi.

(123.) Dirks, Canada’s Refugee Policy, 166; Lynda Mannik, Photography, Memory, and Refugee Identity: The Voyage of the SS Walnut, 1948 (Vancouver: University of British Columbia Press, 2013).

(124.) An Act to Amend the Immigration Act, 1976, Bill C-84, Senate Debates, September 16, 1987, p. 1848.

(125.) James C. Hathaway, “Postscript: Selective Concern: An Overview of Refugee Law in Canada,” McGill Law Journal 34 (1989): pp. 354–355; Act to Amend the Immigration Act, 1976 and the Criminal Code in consequence thereof, July 21, 1988. 8 (1.1).

(126.) Sharryn J. Aiken, “Of Gods and Monsters: National Security and Canadian Refugee Policy,” Revue québécoise de droit international 14, no. 2 (2001): pp. 47–48.

(127.) Standing Committee on Citizenship and Immigration, Canada House of Commons, November 3, 1999, p. 1555, http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=e&Mode=1&Parl=36&Ses=2&DocId=1039743&File=0.

(128.) Standing Committee on Citizenship and Immigration, Canada House of Commons, November 3, 1999, P. 1615, http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=e&Mode=1&Parl=36&Ses=2&DocId=1039743&File=0.

(129.) Alison Mountz, Seeking Asylum: Human Smuggling and Bureaucracy at the Border (Minneapolis: University of Minnesota Press, 2010), p. xiv.

(130.) Mountz, Seeking Asylum,15.

(131.) Scott D. Watson, The Securitization of Humanitarian Migration: Digging Moats and Sinking Boats (New York: Routledge, 2009), p. 142.

(132.) FitzGerald and Cook-Martín, Culling the Masses.

(133.) Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law (New York: Oxford University Press, 2007).