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CHRIS SALE v. HAITIAN CENTERS COUNCIL

SUPREME COURT OF THE UNITED STATES


decided: June 21, 1993.

CHRIS SALE, ACTING COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE, ET AL., PETITIONERS
v.
HAITIAN CENTERS COUNCIL, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O'connor, Scalia, Kennedy, Souter, and Thomas, JJ., joined. Blackmun, J., filed a dissenting opinion.

Author: Stevens

JUSTICE STEVENS delivered the opinion of the Court.

The President has directed the Coast Guard to intercept vessels illegally transporting passengers from Haiti to the United States and to return those passengers to Haiti without first determining whether they may qualify as refugees. The question presented in this case is whether such forced repatriation, "authorized to be undertaken only beyond the territorial sea of the United States,"*fn1 violates § 243(h)(1) of the Immigration and Nationality Act of 1952 (INA or Act).*fn2 We hold that neither § 243(h) nor Article 33 of the United Nations Protocol Relating to the Status of Refugees*fn3 applies to action taken by the Coast Guard on the high seas.

I

Aliens residing illegally in the United States are subject to deportation after a formal hearing.*fn4 Aliens arriving at the border, or those who are temporarily paroled into the country, are subject to an exclusion hearing, the less formal process by which they, too, may eventually be removed from the United States.*fn5 In either a deportation or exclusion proceeding the alien may seek asylum as a political refugee for whom removal to a particular country may threaten his life or freedom. Requests that the Attorney General grant asylum or withhold deportation to a particular country are typically, but not necessarily, advanced as parallel claims in either a deportation or an exclusion proceeding.*fn6 When an alien proves that he is a "refugee," the Attorney General has discretion to grant him asylum pursuant to § 208 of the Act. If the proof shows that it is more likely than not that the alien's life or freedom would be threatened in a particular country because of his political or religious beliefs, under § 243(h) the Attorney General must not send him to that country.*fn7 The INA offers these statutory protections only to aliens who reside in or have arrived at the border of the United States. 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.

On September 23, 1981, the United States and the Republic of Haiti entered into an agreement authorizing the United States Coast Guard to intercept vessels engaged in the illegal transportation of undocumented aliens to our shores. While the parties agreed to prosecute "illegal traffickers," the Haitian Government also guaranteed that its repatriated citizens would not be punished for their illegal departure.*fn8 The agreement also established that the United States Government would not return any passengers "whom the United States authorities determined to qualify for refugee status." App. 382. On September 29, 1981, President Reagan issued a proclamation in which he characterized "the continuing illegal migration by sea of large numbers of undocumented aliens into the southeastern United States" as "a serious national problem detrimental to the interests of the United States." Presidential Proclamation No. 4865, 3 CFR 50-51 (1981-1983 Comp.). He therefore suspended the entry of undocumented aliens from the high seas and ordered the Coast Guard to intercept vessels carrying such aliens and to return them to their point of origin. His executive order expressly "provided, however, that no person who is a refugee will be returned without his consent." Executive Order 12324, 3 CFR § 2(c)(3), p. 181 (1981-1983 Comp.).*fn9

In the ensuing decade, the Coast Guard interdicted approximately 25,000 Haitian migrants.*fn10 After interviews conducted on board Coast Guard cutters, aliens who were identified as economic migrants were "screened out" and promptly repatriated. Those who made a credible showing of political refugee status were "screened in" and transported to the United States to file formal applications for asylum. App. 231.*fn11

On September 30, 1991, a group of military leaders displaced the government of Jean Bertrand Aristide, the first democratically elected president in Haitian history. 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." App. to Pet. for Cert. 144a. Following the coup the Coast Guard suspended repatriations for a period of several weeks, and the United States imposed economic sanctions on Haiti.

On November 18, 1991, the Coast Guard announced that it would resume the program of interdiction and forced repatriation. The following day, the Haitian Refugee Center, Inc., representing a class of interdicted Haitians, filed a complaint in the United States District Court for the Southern District of Florida alleging that the Government had failed to establish and implement adequate procedures to protect Haitians who qualified for asylum. The District Court granted temporary relief that precluded any repatriations until February 4, 1992, when a reversal on appeal in the Court of Appeals for the Eleventh Circuit and a denial of certiorari by this Court effectively terminated that litigation. See Haitian Refugee Center, Inc. v. Baker, 949 F.2d 1109 (1991) (per curiam), cert. denied, 502 U.S. (1992).

In the meantime the Haitian exodus expanded drama-tically. During the six months after October 1991, the Coast Guard interdicted over 34,000 Haitians. Because so many interdicted Haitians could not be safely processed on Coast Guard cutters, the Department of Defense established temporary facilities at the United States Naval Base in Guantanamo, Cuba, to accommodate them during the screening process. Those temporary facilities, how-ever, had a capacity of only about 12,500 persons. In the first three weeks of May 1992, the Coast Guard intercepted 127 vessels (many of which were considered unseaworthy, overcrowded, and unsafe); those vessels carried 10,497 undocumented aliens. On May 22, 1992, the United States Navy determined that no additional migrants could safely be accommodated at Guantanamo. App. 231-233.

With both the facilities at Guantanamo and available Coast Guard cutters saturated, and with the number of Haitian emigrants in unseaworthy craft increasing (many had drowned as they attempted the trip to Florida), the Government could no longer both protect our borders and offer the Haitians even a modified screening process. It had to choose between allowing Haitians into the United States for the screening process or repatriating them without giving them any opportunity to establish their qualifications as refugees. In the judgment of the Presi-dent's advisors, the first choice not only would have defeated the original purpose of the program (controlling illegal immigration), but also would have impeded diplomatic efforts to restore democratic government in Haiti and would have posed a life-threatening danger to thousands of persons embarking on long voyages in dangerous craft.*fn12 The second choice would have advanced those policies but deprived the fleeing Haitians of any screening process at a time when a significant minority of them were being screened in. See App. 66.

On May 23, 1992, President Bush adopted the second choice.*fn13 After assuming office, President Clinton decided not to modify that order; it remains in effect today. The wisdom of the policy choices made by Presidents Reagan, Bush, and Clinton is not a matter for our consideration. We must decide only whether Executive Order No. 12807, 57 Fed. Reg. 23133 (1992), which reflects and implements those choices, is consistent with § 243(h) of the INA.

II

Respondents filed this lawsuit in the United States District Court for the Eastern District of New York on March 18, 1992 -- before the promulgation of Executive Order No. 12807. The plaintiffs include organizations that represent interdicted Haitians as well as Haitians who were then being detained at Guantanamo. They sued the Commissioner of the Immigration and Naturalization Service, the Attorney General, the Secretary of State, the Commandant of the Coast Guard, and the Commander of the Guantanamo Naval Base, complaining that the screening procedures provided on Coast Guard cutters and at Guantanamo did not adequately protect their statutory and treaty rights to apply for refugee status and avoid repatriation to Haiti.

They alleged that the September 1991 coup had "triggered a continuing widely publicized reign of terror in Haiti"; that over 1,500 Haitians were believed to "have been killed or subjected to violence and destruction of their property because of their political beliefs and affiliations"; and that thousands of Haitian refugees "have set out in small boats that are often overloaded, unseaworthy, lacking basic safety equipment, and operated by inexperienced persons, braving the hazards of a prolonged journey over high seas in search of safety and freedom." App. 24. In April, the District Court granted the plaintiffs a preliminary injunction requiring defendants to give Haitians on Guantanamo access to counsel for the screening process. We stayed that order on April 22, 1992, 503 U.S. , and, while the defendants' appeal from it was pending, the President issued the Executive Order now under attack. Plaintiffs then applied for a temporary restraining order to enjoin implementation of the Executive Order. They contended that it violated § 243(h) of the Act and Article 33 of the United Nations Protocol Relating to the Status of Refugees. The District Court denied the application because it concluded that § 243(h) is "unavailable as a source of relief for Haitian aliens in international waters," and that such a statutory provision was necessary because the Protocol's provisions are not "self-executing." App. to Pet. for Cert. 166a-168a.*fn14

The Court of Appeals reversed. Haitian Centers Council, Inc. v. McNary, 969 F.2d 1350 (CA2 1992). After concluding that the decision of the Eleventh Circuit in Haitian Refugee Center, Inc. v. Baker, 953 F.2d 1498 (1992), did not bar its consideration of the issue, the Court held that § 243(h)(1) does not apply only to aliens within the United States. The Court found its conclusion mandated by both the broad definition of the term "alien" in § 101(a)(3)*fn15 and the plain language of § 243(h), from which the 1980 amendment had removed the words "within the United States."*fn16 The Court reasoned that the text of the statute defeated the Eleventh Circuit's reliance on the placement of § 243(h)(1) in Part V of the INA (titled "Deportation; Adjustment of Status") as evidence that it applied only to aliens in the United States.*fn17 Moreover, the Court of Appeals rejected the Government's suggestion that since § 243(h) restricted actions of the Attorney General only, it did not limit the President's power to order the Coast Guard to repatriate undocumented aliens intercepted on the high seas.

Nor did the Court of Appeals accept the Government's reliance on Article 33 of the United Nations Convention Relating to the Status of Refugees.*fn18 It recognized that the 1980 amendment to the INA had been intended to conform our statutory law to the provisions of the Convention,*fn19 but it read Article 33.1's prohibition against return, like the statute's, "plainly" to cover " all refugees, regardless of location." 969 F.2d, at 1362. This reading was supported by the "object and purpose" not only of that Article but also of the Convention as a whole.*fn20 While the Court of Appeals recognized that the negotiating history of the Convention disclosed that the representatives of at least six countries*fn21 construed the Article more narrowly, it thought that those views might have represented a dissenting position and that, in any event, it would "turn statutory construction on its head" to allow ambiguous legislative history to outweigh the Convention's plain text. Id., at 1366.*fn22

The Second Circuit's decision conflicted with the Eleventh Circuit's decision in Haitian Refugee Center v. Baker, 953 F.2d 1498 (1992), and with the opinion expressed by Judge Edwards in Haitian Refugee Center v. Gracey, 257 U.S. App. D.C. 367, 410-414, 809 F.2d 794, 837-841 (1987) (Edwards, J., concurring in part and dissenting in part). Because of the manifest importance of the issue, we granted certiorari, 506 U.S. (1992).*fn23

III

Both parties argue that the plain language of § 243(h)(1) is dispositive. It reads as follows:

"The Attorney General shall not deport or return any alien (other than an alien described in section 1251(a)(4)(D) of this title) to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1253(h)(1) (1988 ed., Supp. IV).

Respondents emphasize the words "any alien" and "return"; neither term is limited to aliens within the United States. Respondents also contend that the 1980 amendment deleting the words "within the United States" from the prior text of § 243(h), see n. 2, supra, obviously gave the statute an extraterritorial effect. This change, they further argue, was required in order to conform the statute to the text of Article 33.1 of the Convention, which they find as unambiguous as the present statutory text. Petitioners' response is that a fair reading of the INA as a whole demonstrates that § 243(h) does not apply to actions taken by the President or Coast Guard outside the United States; that the legislative history of the 1980 amendment supports their reading; and that both the text and the negotiating history of Article 33 of the Convention indicate that it was not intended to have any extraterritorial effect.

We shall first review the text and structure of the statute and its 1980 amendment, and then consider the text and negotiating history of the Convention.

A. The Text and Structure of the INA

Although § 243(h)(1) refers only to the Attorney General, the Court of Appeals found it "difficult to believe that the proscription of § 243(h)(1) -- returning an alien to his persecutors -- was forbidden if done by the attorney general but permitted if done by some other arm of the executive branch." 969 F.2d, at 1360. Congress "understood" that the Attorney General is the "President's agent for dealing with immigration matters," and would intend any reference to her to restrict similar actions of any government official. Ibid. As evidence of this understanding, the court cited 8 U.S.C. § 1103(a). That section, however, conveys to us a different message. It provides, in part:

"The Attorney General shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers . . . ." (Emphasis added.)

Other provisions of the Act expressly confer certain responsibilities on the Secretary of State,*fn24 the President,*fn25 and, indeed, on certain other officers as well.*fn26 The 1981 and 1992 Executive Orders expressly relied on statutory provisions that confer authority on the President to suspend the entry of "any class of aliens" or to "impose on the entry of aliens any restrictions he may deem to be appropriate."*fn27 We cannot say that the interdiction program created by the President, which the Coast Guard was ordered to enforce, usurped authority that Congress had delegated to, or implicated responsibilities that it had imposed on, the Attorney General alone.*fn28

The reference to the Attorney General in the statutory text is significant not only because that term cannot reasonably be construed to describe either the President or the Coast Guard, but also because it suggests that it applies only to the Attorney General's normal responsibilities under the INA. The most relevant of those responsibilities for our purposes are her conduct of the deportation and exclusion hearings in which requests for asylum or for withholding of deportation under § 243(h) are ordinarily advanced. Since there is no provision in the statute for the conduct of such proceedings outside the United States, and since Part V and other provisions of the INA*fn29 obviously contemplate that such proceedings would be held in the country, we cannot reasonably construe § 243(h) to limit the Attorney General's actions in geographic areas where she has not been authorized to conduct such proceedings. Part V of the INA contains no reference to a possible extraterritorial application.

Even if Part V of the Act were not limited to strictly domestic procedures, the presumption that Acts of Congress do not ordinarily apply outside our borders would support an interpretation of § 243(h) as applying only within United States territory. See, e. g., EEOC v. Arabian American Oil Co., 499 U.S. (1991) (quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949)); Lujan v. Defenders of Wildlife, 504 U.S. , - , and n. 4 (1992) (STEVENS, J., concurring in judgment); see also Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 440 (1989) ("When it desires to do so, Congress knows how to place the high seas within the jurisdictional reach of a statute"). The Court of Appeals held that the presumption against extraterritoriality had "no relevance in the present context" because there was no risk that § 243(h), which can be enforced only in United States courts against the United States Attorney General, would conflict with the laws of other nations. 969 F.2d, at 1358. We have recently held, however, that the presumption has a foundation broader than the desire to avoid conflict with the laws of other nations. Smith v. United States, 507 U.S. , n. 5 (1993) (slip op., at 7).

Respondents' expansive interpretation of the word "return" raises another problem: it would make the word "deport" redundant. If "return" referred solely to the destination to which the alien is to be removed, it alone would have been sufficient to encompass aliens involved in both deportation and exclusion proceedings. And if Congress had meant to refer to all aliens who might be sent back to potential oppressors, regardless of their location, the word "deport" would have been unnecessary. By using both words, the statute implies an exclusively territorial application, in the context of both kinds of domestic immigration proceedings. The use of both words reflects the traditional division between the two kinds of aliens and the two kinds of hearings. We can reasonably conclude that Congress used the two words "deport or return" only to make § 243(h)'s protection available in both deportation and exclusion proceedings. Indeed, the history of the 1980 amendment confirms that conclusion.

B. The History of the Refugee Act of 1980

As enacted in 1952, § 243(h) authorized the Attorney General to withhold deportation of aliens "within the United States."*fn30 Six years later we considered the question whether it applied to an alien who had been paroled into the country while her admissibility was being determined. We held that even though she was physically present within our borders, she was not "within the United States" as those words were used in § 243(h). Leng May Ma v. Barber, 357 U.S. 185, 186 (1958).*fn31 We explained the important distinction between "deportation" or "expulsion," on the one hand, and "exclusion," on the other:

"It is important to note at the outset that our immigration laws have long made a distinction between those aliens who have come to our shores seeking admission, such as petitioner, and those who are within the United States after an entry, irrespective of its legality. In the latter instance the Court has recognized additional rights and privileges not extended to those in the former category who are merely 'on the threshold of initial entry.' Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953). See Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953). The distinction was carefully preserved in Title II of the Immigration and Nationality Act." Id., at 187.

Under the INA, both then and now, those seeking "admission" and trying to avoid "exclusion" were already within our territory (or at its border), but the law treated them as though they had never entered the United States at all; they were within United States territory but not "within the United States." Those who had been admitted (or found their way in) but sought to avoid "expulsion" had the added benefit of "deportation proceedings"; they were both within United States territory and "within the United States." Ibid. Although the phrase "within the United States" presumed the alien's actual presence in the United States, it had more to do with an alien's legal status than with his location.

The 1980 amendment erased the long-maintained distinction between deportable and excludable aliens for purposes of § 243(h). By adding the word "return" and removing the words "within the United States" from § 243(h), Congress extended the statute's protection to both types of aliens, but it did nothing to change the presumption that both types of aliens would continue to be found only within United States territory. The removal of the phrase "within the United States" cured the most obvious drawback of § 243(h): as interpreted in Leng May Ma, its protection was available only to aliens subject to deportation proceedings.

Of course, in addition to this most obvious purpose, it is possible that the 1980 amendment also removed any territorial limitation of the statute, and Congress might have intended a double-barreled result.*fn32 That possibility, however, is not a substitute for the affirmative evidence of intended extraterritorial application that our cases require. Moreover, in our review of the history of the amendment, we have found no support whatsoever for that latter, alternative, purpose.

The addition of the phrase "or return" and the deletion of the phrase "within the United States" are the only relevant changes made by the 1980 amendment to § 243(h)(1), and they are fully explained by the intent to apply § 243(h) to exclusion as well as to deportation proceedings. That intent is plainly identified in the legislative history of the amendment.*fn33 There is no change in the 1980 amendment, however, that could only be explained by an assumption that Congress also intended to provide for the statute's extraterritorial application. It would have been extraordinary for Congress to make such an important change in the law without any mention of that possible effect. Not a scintilla of evidence of such an intent can be found in the legislative history.

In sum, all available evidence about the meaning of § 243(h) -- the government official at whom it is directed, its location in the Act, its failure to suggest any extraterritorial application, the 1980 amendment that gave it a dual reference to "deport or return," and the relevance of that dual structure to immigration law in general -- leads unerringly to the conclusion that it applies in only one context: the domestic procedures by which the Attorney General determines whether deportable and excludable aliens may remain in the United States.

IV

Although the protection afforded by § 243(h) did not apply in exclusion proceedings before 1980, other provisions of the Act did authorize relief for aliens at the border seeking protection as refugees in the United States. See INS v. Stevic, 467 U.S., at 415-416. When the United States acceded to the Protocol in 1968, therefore, the INA already offered some protection to both classes of refugees. It offered no such protection to any alien who was beyond the territorial waters of the United States, though, and we would not expect the Government to assume a burden as to those aliens without some acknowledgment of its dramatically broadened scope. Both Congress and the Executive Branch gave extensive consideration to the Protocol before ratifying it in 1968; in all of their published consideration of it there appears no mention of the possibility that the United States was assuming any extraterritorial obligations.*fn34 Nevertheless, because the history of the 1980 Act does disclose a general intent to conform our law to Article 33 of the Convention, it might be argued that the extraterritorial obligations imposed by Article 33 were so clear that Congress, in acceding to the Protocol, and then in amending the statute to harmonize the two, meant to give the latter a correspondingly extraterritorial effect. Or, just as the statute might have imposed an extraterritorial obligation that the Convention does not (the argument we have just rejected), the Convention might have established an extraterritorial obligation which the statute does not; under the Supremacy Clause, that broader treaty obligation might then provide the controlling rule of law.*fn35 With those possibilities in mind we shall consider both the text and negotiating history of the Convention itself.

Like the text and the history of § 243(h), the text and negotiating history of Article 33 of the United Nations Convention are both completely silent with respect to the Article's possible application to actions taken by a country outside its own borders. Respondents argue that the Protocol's broad remedial goals require that a nation be prevented from repatriating refugees to their potential oppressors whether or not the refugees are within that nation's borders. In spite of the moral weight of that argument, both the text and negotiating history of Article 33 affirmatively indicate that it was not intended to have extraterritorial effect.

A. The Text of the Convention

Two aspects of Article 33's text are persuasive. The first is the explicit reference in Article 33.2 to the country in which the alien is located; the second is the parallel use of the terms "expel or return," the latter term explained by the French word "refouler."

The full text of Article 33 reads as follows:

" Article 33. -- Prohibition of expulsion or return ('refoulement')

"1. No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

"2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country." Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S. T. 6259, 6276, T. I. A. S. No. 6577 (emphasis added).

Under the second paragraph of Article 33 an alien may not claim the benefit of the first paragraph if he poses a danger to the country in which he is located. If the first paragraph did apply on the high seas, no nation could invoke the second paragraph's exception with respect to an alien there: an alien intercepted on the high seas is in no country at all. If Article 33.1 applied extraterritorially, therefore, Article 33.2 would create an absurd anomaly: dangerous aliens on the high seas would be entitled to the benefits of 33.1 while those residing in the country that sought to expel them would not. It is more reasonable to assume that the coverage of 33.2 was limited to those already in the country because it was understood that 33.1 obligated the signatory state only with respect to aliens within its territory.*fn36

Article 33.1 uses the words "expel or return ('refouler')" as an obvious parallel to the words "deport or return" in § 243(h)(1). There is no dispute that "expel" has the same meaning as "deport"; it refers to the deportation or expulsion of an alien who is already present in the host country. The dual reference identified and explained in our opinion in Leng May Ma v. Barber, suggests that the term "return ('refouler')" refers to the exclusion of aliens who are merely "'on the threshold of initial entry.'" 357 U.S., at 187 (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953)).

This suggestion -- that "return" has a legal meaning narrower than its common meaning -- is reinforced by the parenthetical reference to " refouler ", a French word that is not an exact synonym for the English word "return." Indeed, neither of two respected English-French Dictionaries mentions " refouler " as one of many possible French translations of "return."*fn37 Conversely, the English translations of " refouler " do not include the word "return."*fn38 They do, however, include words like "repulse," "repel," "drive back," and even "expel." To the extent that they are relevant, these translations imply that "return" means a defensive act of resistance or exclusion at a border rather than an act of transporting someone to a particular destination. In the context of the Convention, to "return" means to "repulse" rather than to "reinstate."*fn39

The text of Article 33 thus fits with Judge Edwards' understanding "that 'expulsion' would refer to a 'refugee already admitted into a country' and that 'return' would refer to a 'refugee already within the territory but not yet resident there.' Thus, the Protocol was not intended to govern parties' conduct outside of their national borders." Haitian Refugee Center v. Gracey, 257 U.S. App. D.C., at 413, 809 F.2d, at 840 (footnotes omitted). From the time of the Convention, commentators have consistently agreed with this view.*fn40

The drafters of the Convention and the parties to the Protocol -- like the drafters of § 243(h) -- may not have contemplated that any nation would gather fleeing refugees and return them to the one country they had desperately sought to escape; such actions may even violate the spirit of Article 33; but a treaty cannot impose uncontemplated extraterritorial obligations on those who ratify it through no more than its general humanitarian intent. Because the text of Article 33 cannot reasonably be read to say anything at all about a nation's actions toward aliens outside its own territory, it does not prohibit such actions.*fn41

B. The Negotiating History of the Convention

In early drafts of the Convention, what finally emerged as Article 33 was numbered 28. At a negotiating conference of plenipotentiaries held in Geneva, Switzerland on July 11, 1951, the Swiss delegate explained his understanding that the words "expel" and "return" covered only refugees who had entered the host country. He stated:

"Mr. ZUTTER (Switzerland) said that the Swiss Federal Government saw no reason why article 28 should not be adopted as it stood; for the article was a necessary one. He thought, however, that its wording left room for various interpretations, particularly as to the meaning to be attached to the words 'expel' and 'return'. In the Swiss Government's view, the term "expulsion" applied to a refugee who had already been admitted to the territory of a country. The term 'b refoulement ', on the other hand, had a vaguer meaning; it could not, however, be applied to a refugee who had not yet entered the territory of a country. The word 'return', used in the English text, gave that idea exactly. Yet article 28 implied the existence of two categories of refugee: refugees who were liable to be expelled, and those who were liable to be returned. In any case, the States represented at the Conference should take a definite position with regard to the meaning to be attached to the word 'return'. The Swiss Government considered that in the present instance the word applied solely to refugees who had already entered a country, but were not yet resident there. According to that interpretation, States were not compelled to allow large groups of persons claiming refugee status to cross its frontiers. He would be glad to know whether the States represented at the Conference accepted his interpretations of the two terms in question. If they did, Switzerland would be willing to accept article 28, which was one of the articles in respect of which States could not, under article 36 of the draft Convention, enter a reservation." (Emphases added.)*fn42

No one expressed disagreement with the position of the Swiss delegate on that day or at the session two weeks later when Article 28 was again discussed. At that session, the delegate of the Netherlands recalled the Swiss delegate's earlier position:

"Baron van BOETZELAER (Netherlands) recalled that at the first reading the Swiss representative had expressed the opinion that the word 'expulsion' related to a refugee already admitted into a country, whereas the word 'return' (' refoulement ') related to a refugee already within the territory but not yet resident there. According to that interpretation, article 28 would not have involved any obligations in the possible case of mass migrations across frontiers or of attempted mass migrations.

"He wished to revert to that point, because the Netherlands Government attached very great importance to the scope of the provision now contained in article 33. The Netherlands could not accept any legal obligations in respect of large groups of refugees seeking access to its territory.

"At the first reading the representatives of Belgium, the Federal Republic of Germany, Italy, the Netherlands and Sweden had supported the Swiss interpretation. From conversations he had since had with other representatives, he had gathered that the general consensus of opinion was in favour of the Swiss interpretation.

"In order to dispel any possible ambiguity and to reassure his Government, he wished to have it placed on record that the Conference was in agreement with the interpretation that the possibility of mass migrations across frontiers or of attempted mass migrations was not covered by article 33.

"There being no objection, the PRESIDENT ruled that the interpretation given by the Netherlands representative should be placed on record.

"Mr. HOARE (United Kingdom) remarked that the Style Committee had considered that the word 'return' was the nearest equivalent in English to the French term ' refoulement '. He assumed that the word 'return' as used in the English text had no wider meaning.

"The PRESIDENT suggested that in accordance with the practice followed in previous Conventions, the French word ' refoulement ' (' refouler ' in verbal uses) should be included in brackets and between inverted commas after the English word 'return' wherever the latter occurred in the text." (Emphasis added.)*fn43

Although the significance of the President's comment that the remarks should be "placed on record" is not entirely clear, this much cannot be denied: at one time there was a "general consensus," and in July of 1951 several delegates understood the right of non-refoulement to apply only to aliens physically present in the host country.*fn44 There is no record of any later disagreement with that position. Moreover, the term " refouler " was included in the English version of the text to avoid the expressed concern about an inappropriately broad reading of the English word "return."

Therefore, even if we believed that Executive Order 12807 violated the intent of some signatory states to protect all aliens, wherever they might be found, from being transported to potential oppressors, we must acknowledge that other signatory states carefully -- and successfully -- sought to avoid just that implication. The negotiating history, which suggests that the Convention's limited reach resulted from a deliberate bargain, is not dispositive, but it solidly supports our reluctance to interpret Article 33 to impose obligations on the contracting parties that are broader than the text commands. We do not read that text to apply to aliens interdicted on the high seas.

V

Respondents contend that the dangers faced by Haitians who are unwillingly repatriated demonstrate that the judgment of the Court of Appeals fulfilled the central purpose of the Convention and the Refugee Act of 1980. While we must, of course, be guided by the high purpose of both the treaty and the statute, we are not persuaded that either one places any limit on the President's authority to repatriate aliens interdicted beyond the territorial seas of the United States.

It is perfectly clear that 8 U.S.C. § 1182(f), see n. 27, supra, grants the President ample power to establish a naval blockade that would simply deny illegal Haitian migrants the ability to disembark on our shores. Whether the President's chosen method of preventing the "attempted mass migration" of thousands of Haitians -- to use the Dutch delegate's phrase -- poses a greater risk of harm to Haitians who might otherwise face a long and dangerous return voyage, is irrelevant to the scope of his authority to take action that neither the Convention nor the statute clearly prohibits. As we have already noted, Acts of Congress normally do not have extraterritorial application unless such an intent is clearly manifested. That presumption has special force when we are construing treaty and statutory provisions that may involve foreign and military affairs for which the President has unique responsibility. Cf. United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). We therefore find ourselves in agreement with the conclusion expressed in Judge Edwards' concurring opinion in Gracey, 257 U.S. App. D.C., at 414, 809 F.2d, at 841:

"This case presents a painfully common situation in which desperate people, convinced that they can no longer remain in their homeland, take desperate measures to escape. Although the human crisis is compelling, there is no solution to be found in a judicial remedy."

The judgment of the Court of Appeals is reversed.

It is so ordered.

Disposition

969 F.2d 1350, reversed.

JUSTICE BLACKMUN, dissenting.

When, in 1968, the United States acceded to the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, [1968] 19 U.S.T. 6223, T.I.A.S. 6577, it pledged not to "return (' refouler ') a refugee in any manner whatsoever" to a place where he would face political persecution. In 1980, Congress amended our immigration law to reflect the Protocol's directives. Refugee Act of 1980, 94 Stat. 102. See INS v. Cardoza-Fonseca, 480 U.S. 421, 429, 436-437, 440 (1987); INS v. Stevic, 467 U.S. 407, 418, 421 (1984). Today's majority nevertheless decides that the forced repatriation of the Haitian refugees is perfectly legal, because the word "return" does not mean return, ante, at 17, 24-25, because the opposite of "within the United States" is not outside the United States, ante, at 18-20, and because the official charged with controlling immigration has no role in enforcing an order to control immigration, ante, at 14-16.

I believe that the duty of nonreturn expressed in both the Protocol and the statute is clear. The majority finds it "extraordinary," ante, at 20, that Congress would have intended the ban on returning "any alien" to apply to aliens at sea. That Congress would have meant what it said is not remarkable. 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.

I

I begin with the Convention,*fn1 for it is undisputed that the Refugee Act of 1980 was passed to conform our law to Article 33, and that "the non-discretionary duty imposed by § 243(h) parallels the United States' mandatory nonrefoulement obligations under Article 33.1 . . . ." INS v. Doherty, U.S. , (1992) (slip op., at 3) (SCALIA, J., concurring in the judgment in part and dissenting in part). See also Cardoza-Fonseca, 480 U.S., at 429, 436-437, 440; Stevic, 467 U.S., at 418, 421. The Convention thus constitutes the backdrop against which the statute must be understood.*fn2

A

Article 33.1 of the Convention states categorically and without geographical limitation:

"No Contracting State shall expel or return (' refouler ') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

The terms are unambiguous. Vulnerable refugees shall not be returned. The language is clear, and the command is straightforward; that should be the end of the inquiry. Indeed, until litigation ensued, see Haitian Refugee Center v. Gracey, 257 U.S. App. D.C. 367, 809 F.2d 794 (1987), the Government consistently acknowledged that the Convention applied on the high seas.*fn3

The majority, however, has difficulty with the Treaty's use of the term "return (' refouler ')." "Return," it claims, does not mean return, but instead has a distinctive legal meaning. Ante, at 24. For this proposition the Court relies almost entirely on the fact that American law makes a general distinction between deportation and exclusion. Without explanation, the majority asserts that in light of this distinction the word "return" as used in the Treaty somehow must refer only to "the exclusion of aliens who are . . . 'on the threshold of initial entry'" (citation omitted). Ibid.

Setting aside for the moment the fact that respondents in this case seem very much "on the threshold of initial entry" -- at least in the eyes of the Government that has ordered them seized for "attempting to come to the United States by sea without necessary documentation," Preamble to Executive Order No. 12,807, 57 Fed. Reg. 23133 (1992) -- I find this tortured reading unsupported and unnecessary. The text of the Convention does not ban the "exclusion" of aliens who have reached some indeterminate "threshold"; it bans their "return." It is well settled that a treaty must first be construed according to its "ordinary meaning." Article 31.1 of the Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, T.S. No. 58 (1980), 8 I.L.M. 679 (1969). The ordinary meaning of "return" is "to bring, send, or put (a person or thing) back to or in a former position." Webster's Third New International Dictionary 1941 (1986). That describes precisely what petitioners are doing to the Haitians. By dispensing with ordinary meaning at the outset, and by taking instead as its starting point the assumption that "return," as used in the Treaty, "has a legal meaning narrower than its common meaning," ante, at 24, the majority leads itself astray.

The straightforward interpretation of the duty of nonreturn is strongly reinforced by the Convention's use of the French term " refouler." The ordinary meaning of " refouler," as the majority concedes, ante, at 25, is "to repulse, . . .; to drive back, to repel." Dictionnaire Larousse 631 (1981).*fn4 Thus construed, Article 33.1 of the Convention reads: "No contracting state shall expel or [repulse, drive back, or repel] a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened . . . ." That, of course, is exactly what the Government is doing. It thus is no surprise that when the French press has described the very policy challenged here, the term it has used is " refouler." See, e. g., Le bourbier hatien, Le Monde, May 31-June 1, 1992 ("Les Etats-Unis ont decide de refouler directement les refugies recueillis par la garde cotire." (The United States has decided [de refouler] directly the refugees picked up by the Coast Guard)).

And yet the majority insists that what has occurred is not, in fact, " refoulement." It reaches this conclusion in a peculiar fashion. After acknowledging that the ordinary meaning of " refouler " is "repulse," "repel," and "drive back," the majority without elaboration declares: "To the extent that they are relevant, these translations imply that 'return' means a defensive act of resistance or exclusion at a border . . . ." Ante, at 25. I am at a loss to find the narrow notion of "exclusion at a border" in broad terms like "repulse," "repel," and "drive back." Gage was repulsed (initially) at Bunker Hill. Lee was repelled at Gettysburg. Rommel was driven back across North Africa. The majority's puzzling progression (" refouler " means repel or drive back; therefore "return" means only exclude at a border; therefore the treaty does not apply) hardly justifies a departure from the path of ordinary meaning. The text of Article 33.1 is clear, and whether the operative term is "return" or " refouler," it prohibits the Government's actions.*fn5

Article 33.1 is clear not only in what it says, but also in what it does not say: it does not include any geographical limitation. It limits only where a refugee may be sent "to", not where he may be sent from. This is not surprising, given that the aim of the provision is to protect refugees against persecution.

Article 33.2, by contrast, does contain a geographical reference, and the majority seizes upon this as evidence that the section as a whole applies only within a signatory's borders. That inference is flawed. Article 33.2 states that the benefit of Article 33.1

"may not . . . be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."

The signatories' understandable decision to allow nations to deport criminal aliens who have entered their territory hardly suggests an intent to permit the apprehension and return of non-criminal aliens who have not entered their territory, and who may have no desire ever to enter it. One wonders what the majority would make of an exception that removed from the Article's protection all refugees who "constitute a danger to their families." By the majority's logic, the inclusion of such an exception presumably would render Article 33.1 applicable only to refugees with families.

Far from constituting "an absurd anomaly," ante, at 23, the fact that a state is permitted to "expel or return" a small class of refugees found within its territory but may not seize and return refugees who remain outside its frontiers expresses precisely the objectives and concerns of the Convention. Non-return is the rule; the sole exception (neither applicable nor invoked here) is that a nation endangered by a refugee's very presence may "expel or return" him to an unsafe country if it chooses. The tautological observation that only a refugee already in a country can pose a danger to the country "in which he is" proves nothing.

B

The majority further relies on a remark by Baron van Boetzelaer, the Netherlands' delegate at the Convention's negotiating conference, to support its contention that Article 33 does not apply extraterritorially. This reliance, for two reasons, is misplaced. First, the isolated statement of a delegate to the Convention cannot alter the plain meaning of the Treaty itself. Second, placed in its proper context, van Boetzelaer's comment does not support the majority's position.

It is axiomatic that a treaty's plain language must control absent "extraordinarily strong contrary evidence." Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 185 (1982). See also United States v. Stuart, 489 U.S. 353, 371 (1989) (SCALIA, J., concurring in the judgment); id., at 370 (KENNEDY, J., concurring in part and concurring in the judgment). Reliance on a treaty's negotiating history (travaux preparatoires) is a disfavored alternative of last resort, appropriate only where the terms of the document are obscure or lead to "manifestly absurd or unreasonable" results. See Vienna Convention on the Law of Treaties, Art. 32, 1155 U.N.T.S., at 340, 8 I.L.M., at 692 (1969). Moreover, even the general rule of treaty construction allowing limited resort to travaux preparatoires "has no application to oral statements made by those engaged in negotiating the treaty which were not embodied in any writing and were not communicated to the government of the negotiator or to its ratifying body." Arizona v. California, 292 U.S. 341, 360 (1934). There is no evidence that the comment on which the majority relies was ever communicated to the United States' Government or to the Senate in connection with the ratification of the Convention.

The pitfalls of relying on the negotiating record are underscored by the fact that Baron van Boetzelaer's remarks almost certainly represent, in the words of the United Nations High Commissioner for Refugees, a mere "parliamentary gesture by a delegate whose views did not prevail upon the negotiating conference as a whole" (emphasis in original). Brief for Office of the United Nations High Commissioner for Refugees as Amicus Curiae 24. The Baron, like the Swiss delegate whose sentiments he restated, expressed a desire to reserve the right to close borders to large groups of refugees. "According to [the Swiss delegate's] interpretation, States were not compelled to allow large groups of persons claiming refugee status to cross [their] frontiers." Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Summary Record of the Sixteenth Meeting, U.N. Doc. A/CONF.2/SR.16, p.6 (July 11, 1951). Article 33, van Boetzelaer maintained, "would not have involved any obligations in the possible case of mass migrations across frontiers or of attempted mass migrations" and this was important because "the Netherlands could not accept any legal obligations in respect of large groups of refugees seeking access to its territory." Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Summary Record of the Thirty-Fifth Meeting, U.N. Doc. A/CONF.2/SR.35, pp. 21-22 (Dec. 3, 1951). Yet no one seriously contends that the Treaty's protections depend on the number of refugees who are fleeing persecution. Allowing a state to disavow "any obligations" in the case of mass migrations or attempted mass migrations would eviscerate Article 33, leaving it applicable only to "small" migrations and "small" attempted migrations.

There is strong evidence as well that the Conference rejected the right to close land borders where to do so would trap refugees in the persecutors' territory.*fn6 Indeed, the majority agrees that the Convention does apply to refugees who have reached the border. Ante, at 25. The majority thus cannot maintain that van Boetzelaer's interpretation prevailed.

That it did not is evidenced by the fact that Baron van Boetzelaer's interpretation was merely "placed on record," unlike formal amendments to the Convention which were "agreed to" or "adopted."*fn7 It should not be assumed that other delegates agreed with the comment simply because they did not object to their colleague's request to memorialize it, and the majority's statement that "this much cannot be denied: at one time there was a 'general consensus,'" ante, at 30, is wrong. All that can be said is that at one time Baron van Boetzelaer remarked that "he had gathered" that there was a general consensus, and that his interpretation was placed on record.

In any event, even if van Boetzelaer's statement had been "agreed to" as reflecting the dominant view, this is not a case about the right of a nation to close its borders. This is a case in which a Nation has gone forth to seize aliens who are not at its borders and return them to persecution. Nothing in the comments relied on by the majority even hints at an intention on the part of the drafters to countenance a course of conduct so at odds with the Convention's basic purpose.*fn8

In sum, the fragments of negotiating history upon which the majority relies are not entitled to deference, were never voted on or adopted, probably represent a minority view, and in any event do not address the issue in this case. It goes without saying, therefore, that they do not provide the "extraordinarily strong contrary evidence," Sumitomo Shoji America, Inc., 457 U.S., at 185, required to overcome the Convention's plain statement: "No Contracting State shall expel or return (' refouler ') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened . . . ."

II

A

Like the Treaty whose dictates it embodies, § 243(h) is unambiguous. It reads:

"The Attorney General shall not deport or return any alien . . . to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1253(h)(1).

"With regard to this very statutory scheme, we have considered ourselves bound to assume that the legislative purpose is expressed by the ordinary meaning of the words used." Cardoza-Fonseca, 480 U.S., at 431 (internal quotation marks omitted). Ordinary, but not literal. The statement that "the Attorney General shall not deport or return any alien" obviously does not mean simply that the person who is the Attorney General at the moment is forbidden personally to deport or return any alien, but rather that her agents may not do so. In the present case the Coast Guard without question is acting as the agent of the Attorney General. "The officers of the Coast Guard insofar as they are engaged . . . in enforcing any law of the United States shall . . . be deemed to be acting as agents of the particular executive department . . . charged with the administration of the particular law . . . and . . . be subject to all the rules and regulations promulgated by such Department . . . with respect to the enforcement of that law." 14 U.S.C. § 89(b). The Coast Guard is engaged in enforcing the immigration laws. The sole identified purpose of Executive Order 12,807 is to address "the serious problem of persons attempting to come to the United States by sea without necessary documentation and otherwise illegally." The Coast Guard's task under the order is "to enforce the suspension of the entry of undocumented aliens by sea and the interdiction of any defined vessel carrying such aliens." The Coast Guard is authorized to return a vessel and its passengers only "when there is reason to believe that an offense is being committed against the United States immigration laws, or appropriate laws of a foreign country with which we have an arrangement to assist."

The majority suggests indirectly that the law which the Coast Guard enforces when it carries out the order to return a vessel reasonably believed to be violating the immigration laws is somehow not a law that the Attorney General is charged with administering. Ante, at 14-16. That suggestion is baseless. Under 8 U.S.C. § 1103(a), the Attorney General, with some exceptions, "shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens . . . ." The majority acknowledges this designation, but speculates that the particular enforcement of immigration laws here may be covered by the exception for laws relating to "the powers, functions, and duties conferred upon the President, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers . . . ." Ante, at 15-16.*fn9 The majority fails to point out the proviso that directly follows the exception: " Provided, however, That . . . the Attorney General . . . . shall have the power and duty to control and guard the boundaries and borders of the United States against the illegal entry of aliens . . . ." There can be no doubt that the Coast Guard is acting as the Attorney General's agent when it seizes and returns undocumented aliens.

Even the challenged Executive Order places the Attorney General "on the boat" with the Coast Guard.*fn10 The Order purports to give the Attorney General "unreviewable discretion" to decide that an alien will not be returned.*fn11 Discretion not to return an alien is of course discretion to return him. Such discretion cannot be given; Congress removed it in 1980 when it amended the Immigration Act to make mandatory (" shall not deport or return ") what had been a discretionary function ("The Attorney General is authorized to withhold deportation"). The Attorney General may not decline to follow the command of § 243(h). If she encounters a refugee, she must not return him to persecution.

The laws that the Coast Guard is engaged in enforcing when it takes to the seas under orders to prevent aliens from illegally crossing our borders are laws whose administration has been assigned to the Attorney General by Congress, which has plenary power over immigration matters. Kleindienst v. Mandel, 408 U.S. 753, 766 (1972). Accordingly, there is no merit to the argument that the concomitant legal restrictions placed on the Attorney General by Congress do not apply with full force in this case.

B

Comparison with the pre-1980 version of § 243(h) confirms that the statute means what it says. Before 1980, § 243(h) provided:

"The Attorney General is authorized to withhold deportation of any alien . . . within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems to be necessary for such reason" (emphasis added).

The Refugee Act of 1980 explicitly amended this provision in three critical respects. Congress (1) deleted the words "within the United States"; (2) barred the Government from "returning," as well as "deporting," alien refugees; and (3) made the prohibition against return mandatory, thereby eliminating the discretion of the Attorney General over such decisions.

The import of these changes is clear. Whether "within the United States" or not, a refugee may not be returned to his persecutors. To read into § 243(h)'s mandate a territorial restriction is to restore the very language that Congress removed. "Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language." INS v. Cardoza-Fonseca, 480 U.S., at 442-443 (citations omitted). Moreover, as all parties to this case acknowledge, the 1980 changes were made in order to conform our law to the United Nations Protocol. As has been shown above, that Treaty's absolute ban on refoulement is similarly devoid of territorial restrictions.

The majority, however, downplays the significance of the deletion of "within the United States" to improvise a unique meaning for "return."*fn12 It does so not by analyzing Article 33, the provision that inspired the 1980 amendments,*fn13 but by reference to a lone case from this Court that is not even mentioned in the legislative history and that had been on the books a full 22 years before the amendments' enactment.

In Leng May Ma v. Barber, 357 U.S. 185 (1958), this Court decided that aliens paroled into the United States from detention at the border were not "within the United States" for purposes of the former § 243(h) and thus were not entitled to its benefits. Pointing to this decision, the majority offers the negative inference that Congress' removal of the words "within the United States" was meant only to extend a right of nonreturn to those in exclusion proceedings. But nothing in Leng May Ma even remotely suggests that the only persons not "within the United States" are those involved in exclusion proceedings. Indeed, such a suggestion would have been ridiculous. Nor does the narrow concept of exclusion relate in any obvious way to the amendment's broad phrase "return any alien."

The problems with the majority's Leng May Ma theory run deeper, however. When Congress in 1980 removed the phrase "within the United States," it did not substitute any other geographical limitation. This failure is exceedingly strange in light of the majority's hypothesis that the deletion was intended solely to work the particular technical adjustment of extending protection to those physically present in, yet not legally admitted to, the United States. It is even stranger given what Congress did elsewhere in the Act. The Refugee Act revised the immigration code to establish a comprehensive, tripartite system for the protection of refugees fleeing persecution.*fn14 Section 207 governs overseas refugee processing. Section 208, in turn, governs asylum claims by aliens "physically present in the United States, or at a land border or entry port." Unlike these sections, however, which explicitly apply to persons present in specific locations, the amended § 243(h) includes no such limiting language. The basic prohibition against forced return to persecution applies simply to "any alien." The design of all three sections is instructive, and it undermines the majority's assertion that § 243(h) was meant to apply only to aliens physically present in the United States or at one of its borders. When Congress wanted a provision to apply only to aliens "physically present in the United States, or at a land border or port of entry," it said so. See § 208(a).*fn15 An examination of the carefully designed provisions of the INA -- not an elaborate theory about a 1958 case regarding the rights of aliens in exclusion proceedings -- is the proper basis for an analysis of the statute.*fn16

C

That the clarity of the text and the implausibility of its theories do not give the majority more pause is due, I think, to the majority's heavy reliance on the presumption against extraterritoriality. The presumption runs throughout the majority's opinion, and it stacks the deck by requiring the Haitians to produce "affirmative evidence" that when Congress prohibited the return of "any" alien, it indeed meant to prohibit the interception and return of aliens at sea.

The judicially created canon of statutory construction against extraterritorial application of United States law has no role here, however. It applies only where congressional intent is "unexpressed." EEOC v. Arabian American Oil Co., 499 U.S. , (1991); Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949). Here there is no room for doubt: a territorial restriction has been deliberately deleted from the statute.

Even where congressional intent is unexpressed, however, a statute must be assessed according to its intended scope. The primary basis for the application of the presumption (besides the desire -- not relevant here -- to avoid conflict with the laws of other nations) is "the common-sense notion that Congress generally legislates with domestic concerns in mind." Smith v. United States, 507 U.S. , n. 5 (1993) (slip op., at 7-8). Where that notion seems unjustified or unenlightening, however, generally-worded laws covering varying subject matters are routinely applied extraterritorially. See, e. g., Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306 (1970) (extraterritorial application of the Jones Act); Steele v. Bulova Watch Co., 344 U.S. 280 (1952) (Lanham Act applies extraterritorially); Kawakita v. United States, 343 U.S. 717 (1952) (extraterritorial application of treason statute); Ford v. United States, 273 U.S. 593, 602 (1927) (applying National Prohibition Act to high seas despite its silence on issue of extraterritoriality).

In this case we deal with a statute that regulates a distinctively international subject matter: immigration, nationalities, and refugees. Whatever force the presumption may have with regard to a primarily domestic statute evaporates in this context. There is no danger that the Congress that enacted the Refugee Act was blind to the fact that the laws it was crafting had implications beyond this Nation's borders. The "common-sense notion" that Congress was looking inwards -- perfectly valid in a case involving the Federal Tort Claims Act, such as Smith, -- cannot be reasonably applied to the Refugee Act of 1980.

In this regard, the majority's dictum that the presumption has "special force" when we construe "statutory provisions that may involve foreign and military affairs for which the President has unique responsibility, " ante, at 31-32, is completely wrong. The presumption that Congress did not intend to legislate extraterritorially has less force -- perhaps, indeed, no force at all -- when a statute on its face relates to foreign affairs. What the majority appears to be getting at, as its citation to United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), suggests, ante, at 32, is that in some areas, the President, and not Congress, has sole constitutional authority. Immigration is decidedly not one of those areas. "'Over no conceivable subject is the legislative power of Congress more complete . . . .'" Fiallo v. Bell, 430 U.S. 787, 792 (1977), quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909). And the suggestion that the President somehow is acting in his capacity as Commander-in-Chief is thwarted by the fact that nowhere among Executive Order No. 12,807's numerous references to the immigration laws is that authority even once invoked.*fn17

If any canon of construction should be applied in this case, it is the well-settled rule that "an act of congress ought never to be construed to violate the law of nations if any other possible construction remains." Murray v. The Charming Betsy, 2 Cranch 64, 117-118 (1804). The majority's improbable construction of § 243(h), which flies in the face of the international obligations imposed by Article 33 of the Convention, violates that established principle.

III

The Convention that the Refugee Act embodies was enacted largely in response to the experience of Jewish refugees in Europe during the period of World War II. The tragic consequences of the world's indifference at that time are well known. The resulting ban on refoulement, as broad as the humanitarian purpose that inspired it, is easily applicable here, the Court's protestations of impotence and regret notwithstanding.

The refugees attempting to escape from Haiti do not claim a right of admission to this country. They do not even argue that the Government has no right to intercept their boats. They demand only that the United States, land of refugees and guardian of freedom, cease forcibly driving them back to detention, abuse, and death. That is a modest plea, vindicated by the Treaty and the statute. We should not close our ears to it.

I dissent.


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