Immigration Consequences of Undocumented Aliens’ Arrival in

United States Territorial Waters

U ndocum ented aliens interdicted w ithin the tw elve-m ile zone that com prises the U nited S ta te s ’s te rn - 

to n a l sea are not entitled to a h e anng under the e x clusion provisions o f the Im m igration and N ationality Act

T he Im m igration and N aturalization S ervice had the authority to prom ulgate an in terp retativ e rule 

construing the "territorial w a ters” o f the U nited Stales, as referred to in section 287 o f the IN A , to 

extend for tw elve nautical m iles

October 13, 1993

M e m o r a n d u m O p in io n f o r t h e A t t o r n e y G e n e r a l

This memorandum responds to requests made by the Office of the Associate 

Attorney General and the General Counsel’s Office of the Immigration and Naturalization Service (“INS”) for our views on the consequences under the Immigration and Nationality Act (“INA”) of an undocumented alien’s arrival in United 

States territorial waters. 8 U.S.C. §§ 1101-1537. Specifically, we have been asked 

whether undocumented aliens who have been interdicted within the United States’s 

territorial waters are entitled to an exclusion hearing under section 236 of the 

INA,1 8 U.S.C. § 1226. We have also been asked to review the INS’s enforcement 

authority under INA section 287, 8 U.S.C. § 1357, and to assess the INS’s recent 

interpretive regulation, 8 C.F.R. § 287.1(a)(1) (1993), insofar as it purports to define the “external boundaries” of the United States under INA section 287.

We understand that resolution of these issues is of some urgency because the 

United States has been interdicting, within its territorial waters, vessels transporting large numbers of undocumented aliens seeking admission into the United 

States from various foreign countries. These activities have raised the question 

whether the United States must provide exclusion proceedings for such aliens. 

Agencies represented on the Working Group on Ocean Policy and the Law of the 

Sea, in particular the State Department and the United States Coast Guard, have 

expressed an interest in the issues. We have therefore invited, and received, the 

views of the State Department and the Coast Guard.

1 See M emorandum for Office of Legal Counsel, Department of Justice, from G rover Joseph Rees III 

General Counsel, Imm igration and N aiurahzation Service, Re: Im m igration C onsequences oj A rrival into

the Territorial Waters oj the U nited Suites (June 15, 1993) Together with this cover m em orandum , the INS 

has subm itted a M emorandum for M aureen W alker, Bureau of Oceans and International Environm ental and 

Scientific Affairs, Department of State, from the Office of the General Counsel, Re- Inform ation Request

from Working G roup on Ocean P ohcv and Law oj the Sea (Dec 17, 1992) (“1NS/OGC M em orandum ’*) and 

a draft memorandum of law (“INS Draft M emorandum ").

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Opinions o f the Office o f Legal Counsel

I. Background

The background to these requests is as follows. Historically, the United States 

adhered to the rule that the territorial sea extends three nautical miles out.2 In 

1988, however, President Reagan, by proclamation, extended the United States’s 

territorial sea to a distance of twelve nautical miles. See Proclamation No. 5928, 3

C.F.R. 547 (1989), reprinted in 103 Stat. 2981 (1989), (“the Proclamation”).3 

Although the Proclamation by its term s purported not to extend or otherwise alter 

existing Federal law or any jurisdiction, rights, legal interests, or obligations derived therefrom, questions arose concerning the possible or alleged effects of the 

Proclamation on domestic law or law enforcement.4 Among these questions are 

the two considered in this opinion, relating to the procedural rights under the INA 

of undocumented aliens intercepted within twelve miles of the United States’s 

shores, and to the authority of the INS to board and search sea vessels suspected of 

transporting undocumented aliens if such vessels are found within that twelve mile 

zone.

The IN S’s former General Counsel has taken the position that the Proclamation 

operated so as to extend the scope of the INA to the new twelve mile limit of the 

territorial waters. Specifically, the INS argues in the submissions considered here 

that an entitlement to an exclusion proceeding now arises whenever an undocumented alien arrives within the twelve mile limit. As the INS acknowledges, however, its past practice and views on this subject have not been consistent. In 1980, 

an INS memorandum to this Office concerning the treatment of Cuban refugees 

maintained that an alien apprehended within the territorial waters before landing 

“does not appear to have a right to apply for asylum” under the Refugee Act of 

1980, Pub. L. No. 96-212, 94 Stat. 102 (“Refugee Act”), and could be towed to a 

third country where he or she would not face persecution. See 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) (“INS Cuba Memorandum”). However, a different INS 

position is reflected in a 1986 memorandum concerning procedures to be followed 

under Executive Order No. 12324, 46 Fed. Reg. 48,109 (1981), which provided for 

the return of Haitians interdicted on the high seas, with the exception of refugees. 

See M emorandum for Alan C. Nelson, Commissioner, INS, from Maurice C.

2 S ee A rgentine R epublic v. Amerada H ess Shipping C orp , 488 U S 428, 441 n.8 (1989), C unard S.S.

Co. v M ellon, 262 U.S. 100, 122 (1923), U nited States v. Postal, 589 F.2d 862, 869 (5th C i r ), cert denied,

444 I! S 832 (1979). T he '‘tern to n al” or '‘m arginal’’ sea is the belt of w ater im m ediately adjacent to a natio n ’s coast. See R estatem ent (Third) o f the F oreign R elations Law o f the U nited States, § 5 1 1(a) (1986).

1 O n the Proclam ation, see Argentine R epublic, 488 U.S. at 441 n 8, John E. N oyes, United Stales o f

A m e n ta P residential P roclam ation No. 5 928: A 12-M ile U.S. Territorial Sea, 4 In t’l J. E stuanne and

C oastal L. 142 (1989); C om m ent, The Extension o f the U nited Slates Territorial Sea Reasons and Effects,

4 C onn. J In t’l L. 697 (1989).

4 S ee generally H earing Before the Suhcom m on O ceanography and G reat Lakes oj the House Comm, on

M erchant M arine a nd Fisheries, 101st Cong. 49, 60 (1989) (“ 1989 H earings”)

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Immigration Consequences o f Undocumented A liens' Arrival in U.S. Territorial Waters

Inman, Jr., General Counsel, INS, Re: Interdiction of Aliens (Feb. 21, 1986) (“INS 

Haiti Memorandum”). Executive Order No. 12324 stated that its provisions for the 

interdiction-and-return of Haitians “are authorized to be undertaken only outside 

the territorial waters of the United States.” 46 Fed. Reg. at 48,109. Following the 

terms of that Executive Order, the INS memorandum stated that “[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 pursuant to the 

Immigration and Nationality Act.” INS Haiti Memorandum at 3. The memorandum further asserted that “it is rather well settled that individuals within our territorial waters may not be forcibly removed to the high seas.” Id. at 4.5 Thus, the 

IN S’s current position is at variance with its views as of 1980 — though not with 

its views as of 1986 — as well as being inconsistent with the position of the State 

Department and the Coast Guard.6

We conclude in Part II below that an undocumented alien who is intercepted 

within the twelve mile zone now comprising the United States’s territorial waters is 

not entitled to an exclusion hearing under the INA. We base this conclusion primarily on an examination of the text of the statute — most importantly, its explicit 

requirements for exclusion proceedings. See INA sections 235, 236, 8 U.S.C. §§ 

1225, 1226. We also examine the statute’s provisions for asylum and withholding 

of deportation, and conclude that these provisions are consistent with, and indeed 

support, our reading of the statutory sections regarding exclusion. See Refugee 

Act, §§ 201(b), 202(e), 94 Stat. at 105, 107 (codified as amended at 8 U.S.C. §§ 

1158, 1253). We then consider the INA’s definition of the term “United States,” 

INA section 101(a)(38), 8 U.S.C. § 1101 (a)(38), and reject INS’s contention that 

this definition, coupled with the Proclamation, compels the conclusion that the 

IN A ’s procedural protections must apply to undocumented aliens who have entered 

the twelve mile zone. We also consider, and reject, IN S’s alternative claim that the 

jurisdictional section of the Outer Continental Shelf Lands Act, 43 U.S.C. § 1333, 

(“OCSLA”) operates to extend the INA — and in particular the right to an exclusion hearing — to the limit of the territorial waters. Finally, we scrutinize the 

Proclamation itself, and conclude that it has no effect on the procedural entitlement 

that the INA provides to undocumented aliens.

5 No authority was cited for this proposition

6 In a letter responding to this O ffice’s invitation to subm it views on this issue, the State D epartm ent 

stated, “[a]t a minimum, it appears that the conduct o f INS exclusion and deportation procedures by their 

very nature are only relevant once an alien has reached the land territory of the United States.” Letter for 

Robert Delahunty, Acting Deputy Assistant Attorney G eneral, O ffice of Legal Counsel, from M aureen 

W alker, Chief, Division of M arine Law & Policy, Bureau of Oceans and International Environm ental and 

Scientific Affairs, Departm ent of State at 2 (July 28, 1993) (“State Departm ent Subm ission"). The State 

D epartm ent’s view s are discussed further, infra, p 87 n.23. In a sim ilar subm ission, the Coast G uard took 

the position that undocum ented aliens interdicted w ithin the three mile zone encom passed by the pre-1988 

territorial waters would be entitled to exclusion proceedings, but that those interdicted in the w aters beyond 

that zone would not be entitled to such proceedings. Letter for Robert Delahunty, Acting Deputy Assistant 

A ttorney General, Office of Legal Counsel, from David Kantor, Chief, M aritime and International Law D ivision, United States Coast Guard at 1 (Aug. 10, 1993).

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Opinions o f the Office o f Legal Counsel

In Part III below, we review the INS interpretative regulation, 8 C.F.R. § 287 

(1993), that purports to construe the meaning of the “external boundaries” of the 

United States, as that term is used in INA section 287, 8 U.S.C. § 1357. The latter 

statute sets forth various investigative and enforcement powers of the INS. Of 

particular relevance, it empowers the INS to conduct certain warrantless searches 

within “a reasonable distance from any external boundary of the United States.” 

INA section 287(a)(3), 8 U.S.C. § 1357(a)(3). W e conclude that the INS had the 

authority to construe that section in a manner that reflected the enlargement of the 

United States’s territorial waters under the Proclamation, and we offer two theories 

to justify that result. We also note an ambiguity in the INS’s regulation, and recommend that, if INS decides to maintain its interpretation of INA section 287, it 

cure this defect.

II.

A. Exclusion Proceedings Under The INA

“It is undoubtedly within the power of the Federal Government to exclude aliens 

from the country.” Almeida-Sanchez v. United States, 413 U.S. 266, 272 (1973); 

see also Landon v. Plasencia, 459 U.S. 21, 32 (1982); Kleindienst v. Mandel, 408 

U.S. 753, 765-66 (1972); 1 Charles Gordon and Stanley Mailman, Immigration

Law and Procedure, § 1,03[2][a] (rev. ed. 1993) (“Gordon & Mailman”).

The means by which the Federal Government may prevent aliens from coming 

into the country are varied. Some aliens seeking to enter the United States must 

first be accorded the procedural rights provided by the INA, including an evidentiary hearing, before any determination to exclude them from this country can be 

made. Other aliens may, however, be prevented from entering the United States by 

Executive actions that do not implicate any INA procedures. Thus, in its recent 

decision in Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 187 (1993), the 

Supreme Court held that neither the INA nor the United Nations Protocol Relating 

to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577 (“the 

Protocol”), placed any limit “on the President’s authority to repatriate aliens interdicted beyond the territorial seas of the United States.”7 The question presented 

here is whether undocumented aliens seeking to enter the United States but interdicted within its territorial waters — that is, within twelve nautical miles from the 

United States’ baselines — must be accorded an exclusion proceeding under the 

INA.

7 T he C ourt also noted that a provision o f the INA, 8 U S C § 1182(0, "grants the President ample 

pow er to establish a naval blockade that would sim ply deny illegal . . . m igrants the ability to disem bark on 

our shores " Sale, 509 U.S. at 187.

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Immigration Consequences o f Undocumented A liens' Arrival in U S Territorial Waters

Section 235(b) of the INA, 8 U.S.C. § 1225(b), “provide[s] the jurisdictional 

basis for an exclusion hearing before an immigration judge.” Matter o f Waldei, 19 

I. & N. Dec. 189, 191 (1984). That section reads in part as follows:

Every alien (other than an alien crewman) and except as otherwise 

provided in subsection (c) of this section and in section 1323(d) of 

this title,181 who may not appear to the examining immigration officer at the port of arrival to be clearly and beyond a doubt entitled to 

land shall be detained for further inquiry to be conducted by a special inquiry officer.

8 U.S.C. § 1225(a) (emphasis added).

Section 236(a), 8 U.S.C. § 1226(a), provides for exclusion hearings before a 

“special inquiry officer” (i.e., an immigration judge, see 8 U.S.C. § 1101(b)(4)). 

Section 236(a) states:

A special inquiry officer shall conduct proceedings under this section, administer oaths, present and receive evidence, and interrogate, examine, and cross-examine the alien or witnesses. He shall 

have authority m any case to determine whether an arriving alien 

who has been detained for further inquiry under section 1225 of this 

title shall be allowed to enter or shall be excluded and deported.

As the plain language of the INA makes clear, it is a predicate for conducting 

exclusion proceedings that the alien seeking admission be examined “at the port o f

arrival” by an immigration officer. 8 U.S.C. § 1225(b); see also id. § 1225(a) 

(“All aliens arriving at ports o f the United States shall be examined by one or more 

immigration officers at the discretion of the Attorney General and under such 

regulations as he may prescribe.”)'(em phasis added); 8 C.F.R. § 235.1 (1993) 

(“Application to enter the United States shall be made . . . in person to an immigration officer at a U.S. port of entry enumerated in part 100 o f this chapter.)

(emphasis added); id. § 100.4 (c)(2) (designating ports of entry); 1 Gordon & 

Mailman, at § 8.05[2][b] (“There are many places designated as ports of entry 

along the land borders of the United States and at international airports and seaports. It is to such a place, and at a time open for inspection, that an alien seeking 

entry to the United States must make his or her application for admission. . . . 

‘Instream’ inspections are conducted aboard arriving ships.”).9 An alien mter8 8 U S C § 1225(c) refers to the temporary exclusion by summary procedures o f certain aliens w ho 

appear to be excludable on national security or related grounds 8 U S.C. § 1323(d) refers to aliens who 

arrive as siowaways, and renders them subject to exclusion without a hearing See M atter o f W aldei, 19 1 & 

N. Dec at 192

9 M ere arrival at a port of the United States, without more, does not entitle an alien to an exclusion 

hearing before a special inquiry officer under INA section 236 Rather, that section limits the special inquiry

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dieted at sea — even if within the territorial waters of the United States — is not at 

any “port.” 10 Consequently, there is no jurisdiction to conduct an exclusion proceeding in such a case."

This construction of INA sections 235(b) and 236(a) comports with the text and 

structure of the INA. Both sections are located within Part IV, “Provisions Relating To Entry And Exclusion,” of Subchapter II, “Immigration,” of the INA. An 

analysis of these provisions confirms that statutory arrangements for exclusion proceedings presuppose that the alien is no longer at sea, but has reached port. The 

first provision of Part IV relates to the duties of persons transporting alien and citizen passengers to provide immigration officers with lists or “manifests” of the persons they are transporting. The duty to provide such a list attaches under INA 

section 231(a), 8 U.S.C. § 1221(a), “[u]pon the arrival of any person by water or 

by air at any port within the United States from any place outside the United 

States” (emphasis added); see also 8 C.F.R. § 231.1(a) (1993). Under INA section 

232, 8 U.S.C. § 1222, aliens “arriving at ports of the United States” may be detained for observation and examination by immigration officers and medical officers if it is thought that they may be excludable for medical reasons (emphasis 

added). Before its repeal in 1986, the next section, INA section 233, 8 U.S.C. § 

1223, authorized immigration officers to order the temporary removal of aliens 

“[u]pon the[ir] arrival at a port o f the United States, . . . but such temporary removal shall not be considered a landing” (emphasis added). Section 234, 8 U.S.C. 

§ 1224, deals with physical and mental examinations of certain arriving aliens, and 

provides for appeals therefrom. Sections 235 and 236, as discussed above, concern other inspections of arriving aliens and the institution of exclusion proceedofficers’ authority to conduct exclusion proceedings to cases in which aliens have reached port and have 

been detained or taken into custody by im m igration officers.

10 B la ck's Law D ictionary (6th ed 1990) defines a “port” as:

A place for the loading and unloading o f the cargoes of vessels, and the collection of duties or 

custom s upon im ports or exports A place, on the seacoast, great lakes, or on a nver, where ships 

stop for the purpose o f loading and unloading cargo, or for the purpose of taking on or letting off 

passengers, from w hence they depart, a n d where they finish their voyage. A port is a place intended for loading or unloading goods; hence includes the natural shelter surrounding water, as 

also sheltered w ater produced by artificial jetties, etc. The Baldhill, C C A N Y , 42 F 2d 123,

125.

Id. at 1161.

A “port*' m ust thus be a “place" and, as C h ie f Justice John M arshall wrote, “[t)he objects with which the 

word 4p la c e ' is associated, are all, in their nature, fixed and territorial." United States v. Bevans, 16 U S. (3 

W heat.) 336, 390 (1818) (em phasis added) (U nited States warship lying at anchor in Boston H arbor not a 

“place” w ithin m eaning of 1790 statute), s e e also id. at 340 (argum ent o f Daniel W ebster, citing common 

law m eaning o f “port'*); D evato v. 823 Barrels o f Plumbago, 20 F 510, 515 (S D N Y 1884).

Being at a port does not require that a “landing” be m ade A “landing” occurs when a vessel is left and 

the shore is reached. Taylor v United States, 207 U.S. 120, 125 (1907). We note that an alien who has 

arrived at a port but w ho has not landed m ay be entitled to an exclusion proceeding See M atter o f Pierre,

14 1 & N . Dec 4 6 7 ,4 6 9 -7 0 (1 9 7 3 ).

11 Even if it is assum ed that an alien s presence at a “port” is not a ju risd ictio n a l requirem ent o f an exclusion proceeding, the statute nonetheless m akes clear that the right to such a proceeding does not attach unless the alien is at a “port ”

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Immigration Consequences o f Undocumented A lie n s' A rrival in U S Territorial Waters

ings. Section 237, 8 U.S.C. § 1227, provides for the immediate deportation of 

excluded aliens.

Judicial support for our interpretation is provided by Haitian Refugee Center,

Inc. v. Gracey, 600 F. Supp. 1396 (D.D.C. 1985), aff'd on other grounds, 809 F.2d 

794 (D.C. Cir. 1987), a suit challenging the Government’s interdiction of visaless 

aliens on the high seas. There the district court stated:

The Immigration and Nationality Act has established procedures for 

the exclusion of aliens, including the entitlement to a hearing. See 8 

U.S.C. § 1226. Those rights, however, are reserved for aliens arriving “by water or by air at any port within the United States from 

any place outside the United States.” Id. Contrary to plaintiffs’ assertion, the interdicted Haitians also have no statutory “right to 

counsel”, which is reserved to those aliens in “exclusion or deportation proceedings.” 8 U.S.C. § 1362. Again, because those 

“exclusion or deportation proceedings” are restricted to aliens arriving “at any port within the United States,” 8 U.S.C. § 1221, it is 

clear that the interdicted Haitians are entitled to none of these 

statutorily-created procedural rights, including the right to counsel.

Id. at 1404.

In sum, then, the overall statutory scheme regulating the exclusion of an alien is 

activated by the alien’s arrival at a port of the United States. That event triggers 

significant legal effects, including the transporter’s duty to provide a manifest, the 

immigration officers’ powers to inspect and detain, and the alien’s right, if detained, to an exclusion proceeding. Nothing in the statute contemplates that the 

same effects are to follow if the alien is interdicted at sea before reaching port — 

even if interdiction occurs within United States territorial waters. For purposes of 

exclusion under the INA, the ports of the United States — not the limits of its territorial waters — are functionally its borders. Accordingly, we conclude that aliens 

interdicted within United States territorial waters do not have a right to exclusion 

proceedings under INA section 236.

B. Asylum and Withholding Provisions o f the INA

Examination of the INA’s basic distinction between exclusion and deportation 

proceedings, and of its provisions for asylum and withholding of deportation or 

return, confirms the conclusion reached in the previous section.

“ ‘[0]ur immigration laws have long made a distinction between those aliens 

who have come to our shores seeking admission . . . and those who are within the 

United Slates 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

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former category who are merely “on the threshold of initial entry.’”” Sale, 509 

U.S. at 175 (quoting Leng May Ma v. Barber, 357 U.S. 185, 187 (1958)) (quoting 

Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953)). The distinction in the rights and privileges accorded to these two groups is reflected in the 

different procedures applied to each. “The deportation hearing is the usual means 

of proceeding against an alien already physically in the United States, and the exclusion hearing is the usual means of proceeding against an alien outside the 

United States seeking admission.” Landon v. Plasencia, 459 U.S. at 25.

The differences between exclusion and deportation, and the varying procedural 

protections attached to each, turn on whether the alien has made an “entry” into the 

United States. “Entry” is here a term of art.12 See id. at 28-29; Matter of Patel, 20 

I. & N. Dec. 368, 370 (1991). “Physically coming into the United States does not 

necessarily accomplish an entry, else all inspections would effectively have to be 

made on foreign soil. Presence after inspection and admission, without further 

restraint, however, does amount to entry. So does penetrating the functional border 

by intentionally evading inspection before being apprehended.” I Gordon & 

Mailman, at § 1.03[2][b]. Aliens who have made an “entry” are entitled to deportation proceedings; those who are seeking admission but who have not entered are 

accorded, at most, an exclusion proceeding — “a process in which the alien usually 

has less protection under the statute and little, if any, under the Constitution.” Id.u

Before 1980, aliens who were excludable but not deportable did not have the 

right to apply for either asylum or withholding of deportation or return.14 By the 

enactment of the Refugee Act, § 203(e), 94 Stat. at 107, Congress extended those 

benefits to both types of aliens.15 Section 201(b) of the Refugee Act, as amended, 

now codified at 8 U.S.C. § 1158(a), prescribed that the Attorney General was to 

establish procedures for asylum applications. The Refugee Act’s asylum provision 

states in part: “The Attorney General shall establish a procedure for an alien 

physically present in the United States or at a land border or port o f entry, irrespective of such alien’s status, to apply for asylum.” 8 U.S.C. § 1158(a) (emphasis 

added). As explained immediately below, aliens interdicted within United States 

territorial waters are neither “at a land border or port of entry,” nor even 

“physically present in the United States” within the meaning of the asylum statute.

12 The term “entry” is defined in the INA to "m ean[] any com ing o f an alien into the United States, from a 

foreign port or place or from an outlying possession, whether voluntarily or otherwise " 8 U S C. § 

1101 (a)( 13)

13 For an explanation o f the different entitlem ents under each procedure, see Landon v Plasencia, 459 

U S. at 25-28.

14 See Leng M a M ay v. Barber, M aldonado-Sandoval v. INS, 518 F 2d 278, 280 n 3 (9th C ir 1975); 

United States ex ret. Tom We Shitng v. Murff, 176 F. Supp. 253, 260 (S.D.N.Y . 1959), a f f d sub nom United

States ex. rel. Tom We Shung v. Esperdv, 274 F.2d 667 (2d C ir I960); M atter o f Cenatice, 16 I. & N Dec 

162,164-65 (1977).

13 See Sale, 509 U.S at 176 n 33 (w ithholding); id. at 159-60 (asylum and w ithholding); Haitian Refugee C enter v. C racev, 809 F.2d at 841 (E dw ards, J., concurring in part and dissenting in part), 8 C F.R. § 

208 2(a) (1993); M atter o f Salim , 18 1 & N. D ec. 311, 314 (1982); 2 G ordon & M ailman, at I) 33.05[2][a]- 

[bl.

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See Sale, 509 U.S. at 160 (INA’s protections apply “only to aliens who reside in or 

have arrived at the border of the United States”) (emphasis added).

In Haitian Refugee Center, Inc. v. Baker, 953 F.2d 1498 (11th Cir.), cert, denied, 502 U.S. 1122 (1992), the court construed the language of the asylum provision and held:

[T]he plaintiffs in this case — who have been interdicted on the 

high seas — cannot assert a claim based on the INA or the Refugee 

Act. . . . 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. The plaintiffs in this 

case have been interdicted on the high seas and have not yet reached 

“a land border” or a “port of entry.”

Id. at 1510 (citations omitted).

Precisely the same can be said of aliens who have been interdicted within territorial waters: they have not yet reached a land border or a port of entry.16

Furthermore, aliens interdicted within the territorial waters are also not 

“physically present in the United States,” 8 U.S.C. § 1158(a), in the sense of that 

expression evidently intended by Congress. The statute’s distinction between aliens “physically present in the United States” and aliens “at a land border or port of 

entry” is evidently designed to refer to the difference between deportable and excludable aliens: as pointed out above, the former are understood to be “already 

physically in the United States,” while the latter are deemed to be “outside the 

United States seeking admission.” London v. Plasencia, 459 U.S. at 25. Aliens 

interdicted within the territorial waters are undoubtedly not entitled to deportation 

proceedings. They are therefore not “physically present in the United States” 

within the meaning of the Refugee A ct’s asylum provision.

The Refugee Act also amended the INA to allow aliens in exclusion proceedings to seek “withholding” under INA section 243(h), 8 U.S.C. § 1253(h). See

Sale, 509 U.S. at 175-76 (“The 1980 amendment erased the long-maintained distinction between deportable and excludable aliens for purposes of section 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.”).17 In Sale, the Supreme Court held that this amendment did not limit the

16 W e note that, in its 1980 mem orandum concerning the treatm ent o f C uban refugees, INS itself agreed 

lhat “an alien apprehended within territorial w aters before landing does not appear to have a nght to apply 

for asylum under the Imm igration and Nationality Act ” INS C uba M em orandum at 1

17 W ithholding and asylum differ in significant ways, net the least o f which is that asylum is discretionary relief which the Attorney General may or m ay not bestow upon qualified applicants, w hereas w ithholding 

is mandatory as to those who qualify for it See, e g , Sale, 509 U S at 162 n 11, IN S v C ardoza-Fonseca,

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President’s power to order the Coast Guard to repatriate undocumented aliens interdicted on the high seas. Id. at 174-77. In our view, the amendment also does 

not limit the President’s power to order the Coast Guard to turn back undocumented aliens interdicted within United States territorial waters.

INA section 243(h), 8 U.S.C. § 1253(h), provides that:

The Attorney General shall not deport or return[18] 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.

Section 243(h) by its terms applies only to the actions of the Attorney General.

See Sale, 509 U.S. at 177 (Attorney General is “the government official at whom 

[section 243(h)] is directed”). Nothing in the language of the provision speaks to 

the responsibilities of the Coast Guard or of any other agency that may encounter 

undocumented aliens, whether in the territorial waters or elsewhere. Moreover, the 

INA confers authority on executive branch officers other than the Attorney General, specifically including the President. See, e.g., 8 U.S.C. § 1182(f) (authorizing 

the President by proclamation 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”); 

see also Sale, 509 U.S. at 171-72. If the President orders the Coast Guard to interdict and turn back aliens within the territorial waters, nothing in section 243(h) 

precludes that agency from obeying his instructions, any more than the section precluded the agency from obeying a sim ilar Presidential order with regard to aliens 

on the high seas. Cf. id. at 172.19

480 U S. 421 (1987); IN S v. Sievic, 467 U S 4 0 7 , 421 n.15, 423 n 18, 426 (1984) Relatedly. the alien s 

proof burden is m ore readily discharged in asylum cases. See 2 G ordon & M ailm an, at § 33.05[3].

18 As explained above, w ithout having m ade an “entry” into the United States, an alien would not be 

subject to deportation; necessarily, therefore, he or she would not be eligible for w ithholding of deportation 

An alien who has not made an “entry” but is in exclusion proceedings can, however, apply for the relief of 

w ithholding o f “ return “ As the Suprem e Court explained in Sale, the am endm ents made by the Refugee Act 

added the word “return" to section 243(h) to ensure that a form o f relief analogous to w ithholding o f d e p u ­

tation would be available in exclusion proceedings See Sale, 509 U S. at 174 (“We can reasonably conclude 

that C ongress used the tw o w ords ‘deport' and ‘return’ only to make § 243 (h )'s protection available in both 

deportation and exclusion proceedings “)

19 Furtherm ore, it would be incongruous if the INA provided that an alien seeking admission had the 

right to a hearing on a w ithholding claim, but not on an asylum claim, if he or she were intercepted in the 

tem to n al w aters T he tw o form s o f relief are broadly sim ilar in substance, and petitions for both are alike 

founded on the fear o f persecution. Applicants frequently plead (and are invited by im m igration officers and 

judges to plead) for both types o f relief together indeed, under Board o f Imm igration Appeals rules, an 

asylum application presented initially to an im m igration judge in an exclusion proceeding, or renew ed in 

such a proceeding follow ing denial by an INS officer, is also deem ed an application for w ithholding See

M atter o f G haradaghi, 19 1 & N. Dec 311, 3 1 6 (1985); 8 C .F .R . § 208.3(b) (1993); see also id § 208 5(a) 

(INS shall m ake available application forms for asylum and withholding to requesting aliens in its custody); 

id. § 208.16(a) (if A sylum O fficer denies asylum application, he or she shall also decide w hether alien is 

entitled to w ithholding); id § 236.3(a)(l)-(2) (im m igration ju d g e is to advtse an alien expressing fear of

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Immigration Consequences o f Undocumented A lien s’ Arrival in U S Territorial Waters

This analysis of the scope of section 243(h) is consistent with Congress’s understanding of the scope of Article 33 of the United Nations Convention Relating to 

the Status of Refugees, July 28, 1951, 19 U.S.T. 6223, 6259, 189 U.N.T.S. 150 

(“United Nations Convention”). As the Supreme Court has noted on several occasions, see Sale, 509 U.S. at 177-78; INS v. Stevie, 467 U.S. at 421, the main intent 

of the Refugee Act’s changes in section 243(h) was to clarify the language of the 

provision so that it conformed to Article 33. The legislative history of the Refugee 

Act discloses that Congress construed the United Nations Convention to “insure 

fair and humane treatment for refugees within the territory o f the contracting

states.” H.R. Rep. No. 96-608, at 17 (1979) (emphasis added). While this legislative reference to “refugees within the territory” of a contracting State could conceivably include aliens within the marginal waters over which the State claimed 

sovereignty,20 we think it accords better with the realities of immigration practice 

(particularly the difficulties of patrolling a border in the sea) to understand Congress to be referring only to aliens who have reached port or who have landed.21

Furthermore, Article 33 does not convey any entitlements that could be relevant 

here but that are not provided by section 243(h) itself. See Stevie, 467 U.S. at 428- 

30 n.22; Haitian Refugee Center v. Gracey, 809 F.2d at 841 (Edwards, J., concurring in part and dissenting in part). Thus, Article 33 does not serve as an independent basis for requiring procedural protections not conferred by the statute.22 

In addition, the State Department has advised us of its view that the United States’s 

international law obligations under the Protocol do not require it to provide exclusion hearings to aliens who have merely arrived in its territorial waters.23 That 

conclusion concerning the territorial scope of the signatories’ obligations under

persecution that he or she may apply for asylum or w ithholding and shall make appropriate forms available). 

There is no apparent reason, therefore, why the statutory requirem ent that an applicant be at a port or a land 

border in order to seek asylum in an exclusion proceeding should not also govern applicants seeking w ithholding

20 T he word “territory" can in som e contexts be understood to include the territorial sea See C unarJ

S S . Co v M ellon, 262 U S at 122 (Eighteenth A m endm ent); Lam M ow v. Nagle, 24 F 2d 316, 318 (9th Cir. 

1928) (Fourteenth A m endm ent), In re A— , 3 I & N. Dec. 677, 679 (1949) (quoting M ellon, 262 U.S. at 

100).

21 C ertain international law docum ents distinguish betw een a nation's “territory'’ and its “territorial 

seas." For exam ple, the 1982 United Nations Convention on the Law of the Sea declares that in the zone 

contiguous to its territorial sea, a State may exercise the control necessary to prevent and punish infringements of its immigration and other laws “within its tem tory or territorial sea." See T hird United Nations 

Conference on the Law of the Sea, Dec. 10, 1982, art. 33(1), 21 1 L.M. 1245, 1276 (“ 1982 C onference1’)

In any event, we have previously opined that there is no private right o f action under Article 33 See

M em orandum for Edwin D W illiamson, Legal Adviser, Departm ent o f State, from Tim othy E Flanigan, 

Acting Assistant Attorney General, Office of Legal Counsel, R e • A rticle 33 o f the R efugee Convention at 3 

(Dec. 12, 1991)

“3 The State Department takes the position that “the non-refoulem ent obligation o f the Protocol [w hich is 

reflected in the “withholding of return” language of INA § 243(h)] applies only with respect to aliens who 

have ‘entered* the United Slates in the im m igration law sense. That is, the international treaty obligation 

only applies with respect to an alien who is physically present on the land m ass o f the United States and who 

has passed a port of entry . . [T]he non-refoulem ent obligation of the R efugee Protocol does not apply at 

sea at all and therefore has no bearing on the questions presented to you by IN S." State D epartm ent Subm ission, at 2

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Article 33 is re-enforced by the negotiating history of the article and the interpretations of commentators.24

Accordingly, we conclude that the INA’s sections relating to asylum and withholding do not require that an exclusion hearing be provided for aliens interdicted 

within territorial waters.

C. The Geographical Limits of the “ United States”

Our reading of the INA is consistent with the statute’s definition of the “United 

States,” 8 U.S.C. § 1101 (a)(38). “ [t]he term ‘United States’, except as otherwise 

specifically herein provided, when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of 

the United States.”

That definition makes no reference to the United States’s territorial waters and 

on its face is consistent with the view, supported by other sections of the INA, that 

an undocumented alien is entitled to an exclusion hearing only if he or she has actually arrived at a port of entry.25

The INS takes a contrary view, arguing that the procedural protections of the 

INA are triggered whenever an undocumented alien arrives within United States 

territorial waters. INS Draft Memorandum, at 2. As INS concedes, however, id. at 

3, its current position conflicts with an opinion of the INS General Counsel issued 

only four years ago.26

In its current submission, INS relies primarily upon International Longshoremen’s and Warehousemen’s Union v. Meese, 891 F.2d 1374 (9th Cir. 1989)

24 T he m aterials cited in S a le , 509 U S. at 179-87 reflecting the negotiations on Article 33, do not suggest that the signatories contem plated obligations extending beyond their land borders Rather, at least some 

com m entators im ply a contrary conclusion S e e 2 A G rahl-M adsen, The Status oj Refugees in International

Law 94 (1972) (“ [Article 33] does not obligate the C ontracting Stales to adm it any person who has not a lready set jo o t on their respective territories ” (em phasis added)), N. R obinson, Convention Relating to the

Status o f Refugees Its H istor\\ Contents and Interpretation 163 (1953) (“ [I]f a refugee has succeeded m 

eluding the frontier guards, he is safe [under A rticle 33]; if he has not, it is his hard luck ”). A person who 

has m erely entered the territorial waters within three or twelve m iles of a nation s coast can hardly be viewed 

as having "set foot’’ in that nation or as having "eluded" its frontier guards.

25 In num erous other statutes, Congress h a s specifically included a reference to the territorial waters 

when defining the “ United States " For exam ple, the Longshore and H arbor W orkers C om pensation Act 

defines the term ‘‘U nited States'* ‘‘when used in a geographical sense [to include] the several States and 

T erritories and the District of Columbia, including the territorial waters thereof * 33 U.S C. § 902(9) The 

C ongressional R esearch Service has identified a large num ber o f statutes referring explicitly to the territorial 

sea See M em orandum for C om m ittee on M erchant M arine and Fisheries, from A merican Law Division. Re

Effect o j Territorial Sea Extension on Selected D om estic Law , C R S -I2 (M ar 16, 1989), reprinted in 1989 

H earings, at 60.

26 See INS G eneral C ounsel's Opinion 89-30, entitled *‘8 C F R § 274a. 1(h) - ‘em ploym ent' and 

‘touches at p o rt': in the United Stales" (M ar 15, 1989). T hat opinion's main conclusion was that labor 

perform ed on a United States vessel within U nited States territorial waters, but while the vessel is not 

touching at a port in the United States, does not constitute “em ploym ent” in the United States w ithin the 

m eaning o f the INA. The opinion further concluded that *‘[t]he term ‘United States*, as defined in INA 

$ I01(a)(38), does not include its ‘territorial w aters ” Id at 4.
Immigration Consequences o f Undocumented A lien s' Arrival in U S. Territorial W aters

(“ILWU"). There, the INS had determined that Canadian nationals who operated 

cranes aboard vessels operating in U.S. coastal waters were bona fide “alien crewmen” within the meaning of 8 U.S.C. § 1101 (a)( 15)(D), and were therefore not 

required to obtain labor certification from the Department of Labor under 8 U.S.C. 

§ 1182(a)(5). In an action challenging that determination brought by an American 

labor union, the court of appeals held that the crane operators did not qualify as 

“alien crewmen” under the INA and therefore were subject to domestic labor certification requirements. The court rejected the Government’s contention that the 

INA’s labor certification requirements were inapplicable because the crane operators never “ ‘actually enter the United States as that term is applied to the crew of 

vessels in U.S. waters because the crane operators never leave the vessel.’” Id. at 

1384. In rejecting this argument, the court stated:

An “entry,” however, is not a prerequisite to the applicability of the 

immigration laws, those laws are triggered whenever an alien 

merely arrives in the United States, regardless of whether he actually effectuates an “entry.” The territorial waters surrounding this 

country are classified as part of the United States. Thus, if persons 

employed aboard a foreign vessel do not fall within the definition of 

an alien crewman, then their arrival into U.S. territorial waters could 

violate provisions of the Act.

Id. (citations omitted).

IN S’s reliance on ILWU is misplaced. The court was not presented with any 

question that required it to decide whether mere arrival within territorial waters 

entitles an undocumented alien to an exclusion hearing. Moreover, to the extent 

that the court’s broad language implied an answer to that question, its analysis was 

flawed.

First, the ILWU court paid no attention to the detailed requirements for any exclusion hearing that are specified by the statute. It is the specific language of the 

specialized provisions in the INA that determines the extent of an undocumented 

alien’s procedural rights in pursuing the various legal methods of gaining admission into the United States. In reaching out for an unduly broad result, the court 

failed to analyze those provisions.

Second, the court’s assertion that a vessel’s mere arrival in United States territorial waters triggers the general applicability of the domestic immigration laws was 

unsupported by any pertinent reasoning or legal authorities. The court cited only 

two cases, neither of which in fact supports its conclusion. One of the cases does 

no more than establish that the United States has the legal capacity to assert jurisdiction and apply its penal statues within territorial waters; the other case tends, if 

anything, to undercut ILWU by demonstrating the significance of reaching a port of

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entry, rather than the territorial seas, for triggering jurisdictional consequences 

under the INA.27

INS also relies on Piledrivers’ Local Union No. 2375 v. Smith, 695 F.2d 390 

(9th Cir. 1982). There the court held that the INA and its labor certification requirements apply to the outer Continental Shelf because the OCSLA extended the 

general legal jurisdiction of the United States to the outer Continental Shelf. See

43 U.S.C. §§ 1331-1356. Specifically, the operative section of OCSLA extends 

“[t]he Constitution and laws and civil and political jurisdiction of the United States 

. . . to the subsoil and seabed of the outer Continental Shelf and to all artificial islands, and all installations and other devices permanently or temporarily attached 

to the seabed, which may be erected thereon.” Id. § 1333(a)(1).

W hile citing P iledrivers’ Local, INS states that it “disagrees” with its holding 

that the INA and its labor certification requirements extend to alien workers on the 

outer Continental Shelf. INS adds, however, that “if the Act did apply to the outer 

continental shelf, a fortiori it would extend through the territorial sea.” INS Draft 

M emorandum, at 3 n.2.

Our Office has previously considered the relationship between the INA and the 

OCSLA in Outer Continental Shelf — Drilling Rigs — Alien Workers, 3 Op.

O.L.C. 362 (1979). Specifically, w e addressed the question whether, in light of 

certain 1978 amendments to the OCSLA, the INA applied to drilling rigs on the 

outer Continental Shelf. W e characterized the OCSLA, which was originally enacted in 1953, as “basically a guide to the administration and leasing of offshore 

mineral-producing properties.” Id. at 362. Considering OCSLA’s federal jurisdiction provision, 43 U.S.C. § 1333(a)(1), without reference to the 1978 amendments to the Act, we found that (3 O p. O.L.C. at 363-64):

Based on a literal reading of that provision, it is certainly possible to 

conclude that the immigration laws should apply. The 1953 law 

adopts Federal law “to the sam e extent as if the Outer Continental 

Shelf were an area of exclusive Federal jurisdiction located within a 

State.” The immigration laws apply, of course, to Federal enclaves 

within States. It appears that § 1333(a)(1) was drafted so that it 

would include Federal laws which, read by themselves, might be

27 T he court cu ed C unard S.S Co v> M ellon. 262 U S at 122, and Lazarescu v. United States, 199 F.2d 

898, 900-01 (4th C ir. 1952). IL W U , 891 F 2d a t 1384. C unard held that the Eighteenth A m endm ent and the 

National Prohibition Act im plem enting it applied to both foreign and dom estic m erchant ships within the 

territorial w aters o f the United States. 262 U S. at 124-26. L azarescu involved the prosecution o f a previously deported seam an for unlawful re-entry into the United States The c o u rt’s discussion o f the geographical factors governing application o f the INA in that case does not, in fact, place controlling significance on 

am val m the territorial w aters. As the court observed, “[t)he port and harbor of Baltimore is territory o f the 

United States Entry into that territory even in a vessel am ounted to a violation of the act unless appellant 

was under restraint w hich prevented his departing from the v essel.” Id at 900-01 (em phasis added). The 

court’s language seem s to underm ine IL W U 's suggestion that an alien's arrival in the territorial waters 

(rather than at a port) triggers the IN A 's procedures governing exclusion.

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Immigration Consequences o f Undocumented A liens' Arrival in U S. Territorial Waters

interpreted as being limited in their application to the continental 

United States.

See also id. at 364 (citing legislative history supporting such an interpretation); 

Warren M. Christopher, The Outer Continental Shelf Lands Act: Key to a New

Frontier, 6 Stan. L. Rev. 23, 38, 41-42 (1953) (to like effect).28

In light of our 1979 analysis, we are prepared to assume here that, except as 

OCSLA otherwise specifically provides, that statute extended the INA to “the subsoil and seabed of the outer Continental Shelf,” as well as to “artificial islands” and 

certain “installations or other devices” attached to the seabed or used for transport. 

See 43 U.S.C. § 1333(a)(1). We do not see, however, how such an extension of 

the INA would be relevant to the question whether undocumented aliens are entitled to an exclusion hearing if they are interdicted in the territorial waters.

First, OCSLA’s very definition of the “outer Continental S h elf’ shows that 

INS’s argument is mistaken. The “outer Continental S h elf’ is defined at 43 U.S.C 

§ 1331(a) to mean “all submerged lands lying seaward and outside of the area of 

lands beneath navigable waters as defined in section 1301 of this title, and of 

which the subsoil and seabed appertain to the United States and are subject to its 

jurisdiction and control.” There is an obvious distinction between the Continental 

Shelf’s “subsoil and seabed” (and certain structures attached to the Shelf or used in 

exploiting its resources) and the waters lying above the Shelf. The extension of 

Federal jurisdiction to the subsoil and seabed of the Shelf would by no means require or imply its extension to the waters above it. Congress’s intent in enacting 

OCSLA was to protect the Federal Government’s “paramount rights to the seabed

beyond the three-mile limit,” and specifically its interests in “the leasing and development of the resources o f the seabed,” including oil, natural gas, and minerals. 

United States i>. Maine, 420 U.S. 515, 526-27 (1975) (emphases added). Nothing 

in that purpose requires, or even suggests, the extension of the immigration laws to 

the waters lying above that seabed.

Moreover, as a matter of international law, the waters lying above the seabed 

and subsoil of the Continental Shelf are considered to be open sea to the extent that 

they are outside territorial waters. See Oil Tanker Officer Tax Liability Case, Bundesfinanzhof [BFHE][Supreme Tax Court] 123, 341 (F.R.G.), translated in 74 

Int’l L. Rep. 204, 210 (E. Lauterpacht and C.J. Greenwood eds., 1987). Thus, “a

28 In connection with our 1979 opinion, we note U nited A s s ’n o f Journeym en v Thornburgh, 768 F. 

Supp 375 (D D C . 1991) That case dealt with the question whether aliens, in order to perform w ork installing oil rigs on the outer C ontinental Shelf, must obtain visas of the type issued to nonim m igrant aliens 

entering the United States to perform tem porary service or labor The district court granted sum m ary ju d g ­

ment, holding that the INA applied to the outer C ontinental Shelf, and explicitly disagreeing with our O ffice's conclusion that OCSLA precluded application of the INA to the Shelf. Id. at 379 However, the court 

o f appeals vacated the district court's grant of sum m ary judgm ent and rem anded for resolution of m atters o f 

fact See U nited A ss'n o f Journeym en v Barr, 981 F.2d 1269 (D C C ir 1992), te rt dented, 117 S C t. 49 

(1996) The court of appeals specifically declined to decide “the broad question w hether the Im m igration 

and N ationality Act generally applies on the outer C ontinental Shelf " Id at 1274.

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ship operating beyond the territorial sea above the area of the continental shelf is 

still to be regarded as being on the high seas and not subject to the sovereignty of 

the coastal State.” Id. at 211. Sale, of course, has settled the issue of the President’s power under the INA to return, without any hearing, aliens interdicted on the 

high seas — including, therefore, the high seas above the outer Continental Shelf.

D. E ffect O f Presidential Proclamation No. 5928

As discussed above, Presidential Proclamation No. 5928 of December 27, 1988, 

announced that the territorial sea of the United States would extend to twelve nautical miles from the baselines of the United States. The President further stated:

Nothing in this Proclamation:

(a) extends or otherwise alters existing Federal or State law or any 

jurisdiction, rights, legal interests, or obligations derived therefrom;

54 Fed. Reg. at 111.

Despite this expressed intent not to alter domestic law, the INS suggests that the 

Proclamation did operate to extend the scope of the INA. More precisely, the INS 

appears to argue that the Proclamation operated to enlarge the IN A ’s definition of 

the “United States,” found in 8 U.S.C. § 1101 (a)(38). See INS/OGC Memorandum, at 1-3.29

W hen the Proclamation was proposed, this Office considered various issues relating to its legality. As to the possible effect of the Proclamation on domestic law, 

we opined:

By its terms, the Proclamation will make clear that it is not intended 

to affect domestic law. Congress may, however, have enacted statutes that are intended to be linked to the extent of the United States’ 

territorial sea under international law. The issue, therefore, in determining the effect of the proclamation on domestic law is whether 

Congress intended for the jurisdiction of any existing statute to include an expanded territorial sea. Thus, the question is one of legislative intent.

Legal Issues Raised by the Proposed Presidential Proclamation to Extend the Territorial Sea, 12 Op. O.L.C. 238,253 (1988).

29 T here is no basis for assum ing, as INS perhaps does, lhai the Proclam ation's expansion of the territorial sea w ould uniform ly affect each discrete provision or definition in the INA, w ithout regard to us particular phrasing or function

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Immigration Consequences o f Undocumented A liens' Arrival in U S Territorial Waters

Our 1988 opinion invites the question whether Congress intended the INA, or 

particular sections of the INA, to track any changes in the bounds of the United 

States’s territorial sea. We have therefore considered whether Congress intended 

the INA’s definition of the “United States” at 8 U.S.C. § 1101 (a)(38) to track, and 

conform to, changes in international law determining the extent of the United 

States’s territorial sea. We believe that Congress had no such intent. The INS has 

offered no evidence that Congress meant either the INA as a whole, the INA’s provisions governing the treatment of aliens seeking entry in particular, or the IN A ’s 

definition of the “United States,” to track such changes in international law. After 

reviewing the legislative history, we have discovered no such evidence ourselves. 

Thus, we conclude that it is extremely unlikely that Congress intended the IN A ’s 

definition of the “United States” to be ambulatory, and to follow changes in international law.

We shall, however, assume arguendo that Congress intended the INA’s definition of the “United States” to track changes in the extent of the United States’s 

territorial sea recognized by international law. Cf. Argentine Republic, 488 U.S. at 

441 (suggesting by negative implication that if injury had occurred in territorial 

waters, it would have taken place within the “United States” as defined in the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1330). It still does not follow 

that exclusion proceedings must be provided for undocumented aliens interdicted 

within the twelve mile bounds that now comprise the territorial waters. An implicit 

enlargement of the INA’s definition of the “United States” to include the new territorial waters has no bearing on the scope of the statute’s exclusion provisions, 

INA sections 225-226. As discussed above, these sections do not refer to the 

“United States” in any relevant way; rather, they refer to “the ports of the United 

States,” and condition exclusion proceedings on arrival at such ports. Id.

(emphasis added). In short, by enlarging the territorial waters, the Proclamation 

may also have extended the geographical scope of the “United States” under the 

INA; but it does not follow that aliens for whom exclusion proceedings need not 

previously have been provided have become entitled to them.

Furthermore, the Proclamation should have no impact on the procedural entitlements of undocumented aliens under the INA because the statute’s only significant reference to the territorial waters occurs in a provision establishing the 

Government’s power to deter illegal immigration rather than in any of the provisions establishing an alien’s procedural rights in seeking to enter the United States. 

A computer search shows that the terms “territorial waters” or “territorial sea” are 

mentioned in only one section of title 8 (which includes the INA).30 That provision

30 The com puter search also identified a provision in the notes following 8 U S C. § 1101, referring to 

the 'T reatm ent o f Departures from Territorial W aters of Guam or Departures from G uam .” The note states 

that section two of the Act of Oct 21, 1986, Pub L. No 99-505, 100 Stat 1806, had provided that '"[ljn the 

adm inistration o f section 10l(a)( I5)(D )(n) of the [INA] an alien crew m an shall be considered to have 

departed from G uam after leaving the territorial waters of G uam , without regard to whether the alien arrives 

in a foreign stale before returning to Guam. ‘

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is section 287(a)(3) of the INA, 8 U.S.C. § 1357(a)(3), discussed in detail in Part

III below, which authorizes the IN S to conduct warrantless searches of vessels 

“within the territorial waters of the United States.” The absence of any other use in 

the INA of the terms “territorial waters” or “territorial sea” — and particularly 

their absence in the detailed provisions governing the treatment of aliens seeking to 

enter the United States — strongly suggests that an alien’s arrival or presence in 

the territorial waters is simply not a relevant consideration for establishing or expanding the rights of aliens seeking entry. Had Congress wanted to make mere 

entry into the territorial waters sufficient to guarantee the entrant an exclusion 

hearing, it could easily have written such language into an appropriate section of 

the INA, as it did elsewhere in the Act. Indeed, inasmuch as the only usage of the 

term “territorial waters” appears in section 287’s description of INS’s authority to 

search vessels in order to thwart aliens attempting illegal entry, there is reason to 

view the territorial waters as a buffer zone, rather than as a safe harbor, in the 

overall scheme of the INA.

Accordingly, we conclude that Presidential Proclamation No. 5928 does not 

have the effect of requiring exclusion hearings to be provided to undocumented 

aliens interdicted within the territorial sea.

III.

A. IN S ’s Enforcement Powers Under INA Section 287

Section 287 of the INA, 8 U.S.C. § 1357, sets forth various investigative and 

enforcement powers granted to INS. Of particular relevance here, INA section 

287(a)(3) provides that the INS shall have power, without a warrant —

(3) within a reasonable distance from any external boundary of 

the United States, to board and search for aliens any vessel within 

the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle.........

8 U.S.C. § 1357(a)(3).

In the wake of the Presidential Proclamation No. 5928, INS amended its interpretative regulation construing section 287. See 57 Fed. Reg. 47,257 (1992), codified at 8 C.F.R. § 287.1(a)(1) (1993). This interpretative rule construes the term 

“external boundary,” as used in INA section 287(a)(3), as follows:

(a)(1) External boundary. The term external boundary, as used 

in section 287(a)(3) of the Act, means the land boundaries and the 

territorial sea of the United States extending 12 nautical miles from 

the baselines of the United States determined in accordance with 

international law.

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Immigration Consequences o f Undocumented A lien s' Arrival in U S. Territorial Waters

8 C.F.R. at § 287.1(a)(1). The regulation does not purport to construe any provision of the INA other than section 287.

The main question posed to us concerning INA section 287 is whether the INS 

had the authority to construe that provision so as to reflect the enlargement of the 

United States’s territorial waters effected by the Proclamation. We believe that 

INS’s authority to issue the regulation could be defended on either of two theories. 

First, the Proclamation may have operated of its own force to enlarge the scope of 

section 287. Second, the INS may have the authority to construe section 287 by 

regulation in a manner that reflects changed circumstances, including such facts as 

the expansion of the territorial waters by Presidential proclamation. Of these two 

theories, the latter appears to us the more persuasive.

We also note that the broad enforcement powers granted to the Attorney General under section 103 of the INA, 8 U.S.C. § 1103 — powers which have been 

delegated to the INS — could provide a separate legal basis for a regulation establishing that INS’s seaward search authority extends to the limits of the twelve-mile 

territorial waters and even beyond. See United States v. Chen, 2 F.3d 330 (9th Cir. 

1993), cert, denied, 511 U.S. 1039 (1994), discussed infra in Pt. III(C).

B. “Territorial Waters” Under INA Section 287

As discussed in Part II above, this Office has taken the position that the question 

of the Proclamation’s effect upon domestic law depends on a case-by-case analysis 

of the legislative intent behind each statute. Accordingly, we sought evidence that 

Congress intended the INA’s definition of the “United States,” 8 U.S.C. § 

1101 (a)(38), to track changes in international law respecting the United States’s 

territorial waters. We discovered no such evidence. The legislative history of section 287’s “territorial waters” limitation provides some guidance as to that term ’s 

origins, but we find it inconclusive on the question of whether the meaning of the 

term was meant to be static or dynamic.

The language of section 287 authorizing warrantless vessel searches was originally enacted as an amendment to a Justice Department appropriations bill in 1925. 

Appropriations for Department of State and Justice, the Judiciary, and Departments 

of Commerce and Labor, Pub. L. No. 68-502, 43 Stat. 1014, 1049-50 (1925). That 

amendment was primarily intended to provide authority for INS border patrol officials to make arrests upon sighting illegal entry of aliens, but it also provided 

authority for warrantless searches of vessels and other vehicles in that same context. 66 Cong. Rec. 3201-02 (1925) (statements of Sen. McKellar and Sen. Reed). 

The limitation of vessel searches to the territorial waters was added as a House 

floor amendment to the bill as reported out of the conference committee. Id. at 

4553, 4555. The sponsor of that amendment, Mr. Connally of Texas, offered the 

amendment to address his concern that the absence of any limitations on the vessel

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search authority was “apt to entangle our Government in difficulties with foreign 

nations.” Id. at 4555. In further addressing this concern, Mr. Connally stated, 

“But why not limit it? It is just such loose legislation as this that produces complications with other nations.” Id. Just before offering the amendment, Mr. Connally 

specifically considered using “within the 3-mile limit” as alternative language to 

“within territorial waters,” but he opted for the latter formulation and the amendment was adopted by voice vote. Id. The amendment was accepted by the Senate 

with little discussion. Id. at 4519.31

In 1946, Congress amended the IN S’s search authorization statute by inserting 

the additional provision limiting searches to “within a reasonable distance from any 

external boundary of the United States.” Act of Aug. 7, 1946, Pub. L. No. 79-613, 

60 Stat. 865. Although there was some House debate on that bill, S. 386, 79th 

Cong. (1945), it did not make any reference to the term “territorial waters” or indicate that any change in the scope or effect of that term was intended. See 91 Cong. 

Rec. 5504-05, 5513 (1945). The debate did indicate that some Congressmen 

viewed the scope of the IN S’s sea search authority under the then existing territorial waters provision as quite broad. As one M ember stated, “under the present law 

[an official] may go on any boat in any waters and search that boat, without a warrant, to see if there are any people there attempting to enter.” Id. at 5505 

(emphasis added).32

Although the legislative history o f the territorial waters provision is inconclusive on the precise issue at hand, it does demonstrate that the phrase was inserted in 

order to avoid friction with other nations by limiting vessel searches within the 

three-mile territorial waters claimed by the United States in 1925. The legislative 

record also reveals that the author and sponsor of the territorial waters amendment 

considered but rejected alternative language that would have explicitly limited the 

vessel search authority to a “three-mile limit” — a factor that militates against the 

view that an immutable three-mile limit was intended. It is also apparent that the 

limitation ultimately imposed by Congress reflected international rather than domestic concerns. W hile these factors are inconclusive on the question of whether 

Congress intended a fixed or expandable interpretation of the territorial waters, 

they do suggest that the term should be interpreted with international perspective in 

mind. Inasmuch as the 1988 Proclamation expanded United States territorial waters in conformity with international law and practice, interpreting the term as used 

in section 287 to reflect that reality could be viewed as consistent with the provi11 Senator Jones, the Floor Manager, com m ented on the am endm ent as follows before its adoption: “It 

seem s to me that is entirely proper; I doubt if a vessel could be searched outside of territorial waters even if 

we did not have that language in it; so I think the Senate should concur in the am endm ent o f the House ” 66 

C ong Rec at 4 5 19

12 T he present language o f section 287(a)(3) was enacted as part of the INA in 1952. That language, 

w hich m ade no significant changes to the statute as m odified in 1945, was adopted by unanimous consent, 

w ithout any debate or discussion as a floor am endm ent to the bill — H R . 5678, 82d Cong. (1952) — that 

becam e the INA 98 C ong. Rec. 4400 (1952).

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sion’s original design — i.e., limiting the INS’s search authority to within United 

States’s territorial waters as declared and recognized under international law.

Accordingly, there is little evidence to show that Congress intended its use of 

the term “territorial waters” to constitute an irrevocable commitment to the threemile limitation in effect at the time of section 287’s enactment. A reasonable interpretation of that term, taking into account the statute’s evident intention to provide sufficient enforcement powers to prevent illegal immigration, would therefore 

incorporate the expansion of the territorial sea declared in the Presidential proclamation.

Alternatively, it can be argued that even if the Proclamation did not of its 

own force enlarge section 287’s reference to the territorial waters, it nonetheless 

provided a sufficient basis for INS to promulgate its interpretative regulation. Under section 103(a) of the INA, 8 U.S.C. § 1 103(a), the Attorney General has broad 

authority to promulgate regulations interpreting and implementing provisions of 

the INA in furtherance of her duties, including the duty to protect the Nation’s borders against illegal entry by unauthorized aliens.33 The courts have accorded substantial deference to the Attorney General’s regulations under the INA.34

INS appears to have regulatory authority to construe the terms “external boundary” and “territorial waters” in INA section 287 to refer to the twelve-mile territorial sea announced in Presidential Proclamation No. 5928, rather than to the 

historic three-mile territorial sea. Even if the Proclamation did not operate of its 

own force to alter the scope of section 287, it represented a significant change in 

circumstances — the international law definition of the United States’s territorial 

waters — which INS could reasonably take into account in deciding to revise its 

construction of that statutory provision.

Neither the language of section 287 nor (as discussed above) the legislative 

history demonstrates an unambiguous congressional intent either to link the term 

“territorial waters” permanently to the historic three-mile boundary or to track sub33 INA section 103(a) provides.

T he A ttorney General shall be charged with the adm inistration and enforcem ent o f this chapter 

and all other laws relating to the im m igration and naturalization o f aliens, except insofar as 

[power is delegated to other Executive Branch officials] . He shall establish such regulations 

. . as he deem s necessary for carrying out his authority under the provisions of this chapter ....

He shall have the pow er and duty to control and guard the boundaries and borders o f the United 

States against the illegal entry o f aliens . ..

See 8 U S C § 1103(a).

The INA further provides that the A ttorney G eneral’s determ inations and rulings ‘‘with respect to all 

questions of law [under the INA] shall be controlling ’’ Id. W ithout divesting the Attorney G eneral o f any 

powers, privileges or duties, the A ttorney G eneral’s authority under section 103(a), including the authority to 

promulgate regulations, has been delegated to the C om m issioner of INS See 8 C F.R. § 2 1 (1993); I G ordon & M ailman, at § 3 03[ 1 ]

34 See, e g . Jean v. Nelson, 727 F 2d 957, 967 (11'" C ir 1984), tiff'd, 472 U.S 846 (1985) (INA -perm its 

wide flexibility in decision-m aking on the part of executive officials involved, and the courts are generally 

reluctant to interfere"), N arenji v C ivdetti, 617 F.2d 745 (D C. Cir. 1979), cert denied, 44 6 U S 957 (1980) 

(im migration regulations prom ulgated by the A ttorney General under the INA will be upheld as long as they 

are ‘‘directly and reasonably related to the A ttorney G eneral's duties and authority under the A c t')

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sequent developments in the law, including international law. Accordingly, in 

adopting its interpretative rule, INS has not failed to “give effect to the unambiguously expressed intent of Congress.” Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842-43 (1984). Rather, because “the statute 

is silent or ambiguous with respect to the specific issue,” the question is whether 

IN S’s construction of section 287 was “permissible.” Id. at 843. Here, we believe, 

INS was engaging in rulemaking to fill a “gap” implicitly left open by Congress. 

In such a case, Congress has impliedly delegated the question of construction to the 

enforcing agency. Id. at 843-44. The IN S’s interpretation should therefore be upheld so long as it is “a reasonable one.” Id. at 845. We think that the interpretation 

was reasonable.

First, the IN S’s interpretation ensures that section 287 will be understood in a 

manner that is consistent with the current international law understanding of the 

United States’s “territorial waters,” as declared by the Proclamation. As discussed 

above, the territorial waters limitation was originally inserted in section 287 in order to promote just such clarity of understanding with other nations as to the scope 

of United States search authority at sea.

M oreover, the special problems o f maritime enforcement of the law appear to 

support the extension of the INS’s authority to board and search vessels beyond the 

three-mile limit. Such problems have been recognized in the context of customs 

enforcement, but they apply to immigration enforcement with equal force. Thus, in 

United States v. Tilton, 534 F.2d 1363, 1365 (9th Cir. 1976), the court observed 

that “it is not practical to set up checkpoints at the outer perimeters of the territorial 

waters. Nor is it likely that incoming vessels will pick up or discharge passengers 

or cargo between their points of entry into territorial waters and their anchorages at 

United States ports.” Accordingly, the courts have upheld warrantless customs 

searches of vessels beyond the three-mile limit but within “customs waters” as 

valid border searches under the Fourth Amendment.35 See id. (holding that a customs search of a vessel within customs waters can be valid as a border search); 

United States v. Victoria-Peguero, 920 F.2d 77, 80-81 & n.3 (1st Cir. 1990) 

(pointing out that customs officers are statutorily authorized to search vessels 

within customs waters, and noting suggestions that the contiguous zone, i.e., the 

waters lying between three and twelve nautical miles off the coast, be considered 

the functional equivalent of the border for purposes of the Fourth Amendment); 

cert, denied, 500 U.S. 932 (1991); United States v. Hidalgo-Gato, 703 F.2d 1267, 

1273 (1 1th Cir. 1983) (holding the contiguous zone to be the functional equivalent 

of the border); United States v. MacPherson, 664 F.2d 69, 72 & n.2 (5th Cir. 

1981) (similar to Victoria-Peguero)', Note, High On The Seas: Drug Smuggling,

35 “ [T ]he law s o f the United States have sin ce 1790 prohibited various acts within 12 miles, or 4 leagues, 

of the shore, as a m eans to enforce compliance with the custom s laws.’’ W illiam W. Bishop, International

Law. C ases and M aterials 622-23 (3d ed. 1971). The offshore waters reaching to the twelve-m ile limit in 

w hich such enforcem ent was authorized were know n as the “custom s w aters ” See 19 U S.C § 1401(j).

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The Fourth Amendment, And Warrantless Searches At Sea, 93 Harv. L. Rev. 725, 

733-34 (1980) (detailing difficulties in law enforcement at sea near borders, and 

arguing for “functional” understanding of borders that could extend them beyond 

three-mile limit). Analogously, the special difficulties in policing the seaward 

boundaries can justify INS’s regulatory extension of its search authority up to the 

twelve-mile limit.36

Finally, it is no objection to IN S’s regulation that it might be said to represent a 

departure from the agency’s prior position. An agency’s position is “not instantly 

carved in stone,” and “the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis.” 

Chevron, 467 U.S. at 863-64; see also Rust v. Sullivan, 500 U.S. 173, 186 

(1991 ).37

C. INA Section 103 Authority and “United States v. Chen”

Although we have been specifically asked to examine the validity of the INS 

interpretive regulation expanding its authority to conduct warrantless searches in 

the territorial waters under section 287 of the INA, it should be pointed out that the 

broad enforcement powers granted the Attorney General under section 103 of the 

INA could provide the legal basis for a substantive regulation authorizing an equal 

or even greater range for INS search authority at sea. Section 287 authorizes and 

limits INS’s direct authority to conduct searches at sea, but its territorial limitations 

do not apply to the Attorney General’s broader enforcement powers (which are 

delegable to INS) under the INA. The recent opinion in United States v. Chen, 2 

F.3d 330 (9th Cir. 1993) provides strong support for this position.

In Chen, the court unanimously held that section 103 of the INA provided INS 

with adequate statutory authority (under delegation from the Attorney General) to 

conduct an undercover “sting” operation some three hundred and twenty miles off 

the coast of the United States to thwart the smuggling of illegal aliens from China.

16 W e also believe that INS officials would have authority to make arrests under the provisions o f INA 

section 287(a)(2) within the twelve-mile territorial sea recognized in the INS regulation Section 287(a)(2) 

authorizes INS officials, without warrant, '‘to arrest any alien who in his presence or view is entering or 

attem pting to enter the United States in violation of [the im m igration laws regulating adm ission, exclusion, 

or expulsion o f aliens] " Although undocum ented aliens detected in the twelve-m ile territorial w aters before 

reaching a port might not yet be '‘entering ' the United States, there will be circum stances w here an INS 

official’s observations provide reasonable grounds to believe that aliens are '‘attem pting to enter" in violation 

o f the im m igration laws, thereby providing the basis for arrest under section 287(a)(2).

17 W e also can discern no international law objection to the INS regulation See 1982 C onference, at 

1276 (allowing regulation within contiguous zone for purpose of enforcing im m igration law), U.N C onference on the Law o f the Sea, Convention on the T erritorial Sea and the Contiguous Zone, opened f o r signature Apr 29, 1958, art 24, I5UST 1606, 1612, 516 U N T.S 205, 220 (entered into force Sept. 10, 1964) 

(sam e), see alto Church v Huhhart, 6 U S (2 Cranch) 187, 234-35 (1804); United States w Bengochea, 279 

F. 537, 539-41 (5th Cir 1922) In M olvan v A ttorney G eneral, [ 1948] App Cas 351 (P.C 1964), the Privy 

Council implied that international law was not violated by a British destroyer's seizing a vessel on the high 

seas and forcing it to port when the seized vessel was carrying several hundred undocum ented aliens who 

intended to land illegally

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The operation upheld in the Chen opinion included the apprehension of approximately 132 aliens, who were transferred to a vessel operated clandestinely by INS 

agents for transport to custody in the United States. The court specifically held 

that the territorial limitations on warrantless INS searches set forth in section 

287(a)(3) did not offset or contradict IN S’s authority to conduct such an extraterritorial enforcement operation when exercising the enforcement powers delegated 

to it by the Attorney General. Id. at 334.

The court pointed out that section 274 of the INA, 8 U.S.C. § 1324, prohibiting 

the smuggling of illegal aliens into the United States, was intended to have extraterritorial application. It then stressed that “Congress intended to grant the Attorney General the corresponding power to enforce the immigration laws both within 

and without the borders of the United States.” Chen, 2 F.3d at 333. Noting that 

the Attorney General has delegated these broad enforcement powers to the INS, the 

court reasoned that INS has “the pow er to take such acts as are deemed necessary 

for the enforcement of the immigration laws, including extraterritorial enforcement.” Id. at 334. In rejecting the defendants’ argument that section 287(a)(3)’s 

territorial limitations on INS warrantless search authority also circumscribed its 

power to conduct enforcement operations in international waters (i.e., on the high 

seas), the court stated, “because the Attorney General may delegate her authority, 

the list of powers granted [to INS] in section 1357(a) cannot be read as exhaustive.” Id.

Thus, the Chen decision demonstrates that INS may draw upon the broad section 103 authority delegated to it by the Attorney General to conduct undercover 

investigations and seizures of undocumented aliens in international waters extending far beyond the territorial waters of the United States. That same authority 

would appear to provide ample basis — apart from the authority granted directly to 

INS by section 287 — for a substantive regulation authorizing INS to conduct warrantless searches of vessels transporting illegal aliens within the limits of the 

twelve-mile territorial waters and beyond.38

D. The INS Regulation

Although we conclude that INS had authority to promulgate a regulation interpreting the section 287 search authority to encompass the twelve-mile territorial 

sea, the language of the regulation adopted is susceptible to ambiguous and uncertain application when read in relation to the statute. We recommend that if the 

policy decision to retain the regulation is made, INS should redraft it to dispel this

W e note that the INS regulation at issue here was intended to be only an “interpretative'’ regulation 

that construed section 287, not a substantive regulation deriving from the authority ascribed to the Attorney 

General by Chen A substantive regulation issued pursuant to the A ttorney G eneral’s broad section 103 

authority to enforce the im m igration laws w ould not be lim ited by the particularized restrictions of section 

287, w hich were specifically designed to place lim its on the w arrantless search authority of the IN S’s B order 

Patrol

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ambiguity or, if it concludes that curative legislation is necessary, submit such a 

proposal to Congress.

Section 287 limits INS authority for warrantless searches at sea to vessels found 

“within the territorial waters,” but then superimposes the additional limitation that 

such searches (along with INS searches of vehicles on land) must be confined 

“within a reasonable distance from any external boundary of the United States.” 

As outlined in Part III(B) above, these two limitations — which on their face are 

difficult to reconcile — were inserted in the statute at different times and for different purposes. The territorial waters limitation was added as an amendment to 

the original 1925 enactment to provide a seaward limitation upon searches of vessels at sea. In contrast, the “reasonable distance” limitation was added to the statute in 1946 for the apparent purpose of allowing INS officials to stop and search 

“vehicles” within a reasonable distance inland from the external boundaries of the 

United States.

Despite the different functions and origins of section 287’s two limiting phrases, 

the INS regulation attempts to combine them in its definition of the “external 

boundary” of the United Stales. See 8 C.F.R. § 287.1(a)(1). It provides that, for 

purposes of section 287, the external boundary means both the land boundary and

the twelve-mile territorial sea. It then provides that the “reasonable distance” 

limitation (100 air miles) is to be measured from the external boundary thus defined — i.e., it can be measured either from the land boundary or from the outer 

limit of the territorial waters. Id. § 287.1(a)(2).

Because section 287 expressly limits INS’s vessel-search authority to the territorial waters, the question arises whether the separate “reasonable distance from 

any external boundary” limitation has any relevance to searches of vessels at sea. 

Whether the statute’s reference to territorial waters is equated with the pre-1988 

three-mile zone or the expanded twelve-mile zone, it seems clear that any search 

within either of those zones would also be well within “a reasonable distance from 

any external boundary.” In that regard, the courts have upheld distances of up to 

one hundred (land) miles from that boundary as constituting a reasonable distance 

within the meaning of section 287. See Fernandez v. United States, 321 F.2d 283, 

286 (9th Cir. 1963). It therefore seems that section 287’s “reasonable distance” 

provision does not impose any additional limitation upon the IN S’s authority to 

search any vessel found within the territorial waters. Nor does the “reasonable 

distance” provision serve to expand the area of permissible INA searches of vessels at sea. Since vessel searches are confined to vessels within the territorial waters by the specific terms of section 287, the “reasonable distance” provision 

cannot operate to override that specific limitation.

These considerations support the view that the reasonable distance limitation has 

no meaningful application to INS searches at sea. INS points out, however, that 

the reasonable distance limitation may have conceivable application to searches of 

vessels on the inland waters. As the INS Draft Memorandum states (at 6-7):

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Although there appears to be surface tension between the requirement that the enforcement powers be exercised within the territorial 

waters and the provision that it may be exercised within 100 miles 

of any external boundary, this tension is resolved if the “reasonable 

distance” provisions are read to limit the distance inland from any 

external boundary within which Service officers may board and 

search vessels or carry out their other enforcement powers under 

section 287(a)(3) o f the INA. Read together, § 287(a)(3) of the 

INA and 8 C.F.R. §§ 287.1 (a)( 1 )-(2) provide that the Service may, 

without a warrant, board and search vessels beginning twelve miles 

seaward from the coast line and extending 100 air miles inland.

However, this interpretation of section 287 also generates complications. If INS 

may search vessels found on waters located 100 miles inland of “any external 

boundary o f the United States,” see 8 C.F.R. § 287.1(a)(2) (emphasis added), there 

appears to be no need to deviate from use of the land boundary alone as the baseline for such purposes. Using the outer limit of the territorial sea as the baseline 

for fixing the inland scope of the section 287 authority — an interpretation suggested by IN S’s current submission (INS Draft Memorandum at 7, quoted above) 

and its past practice39 — would appear to reduce the scope of inland search 

authority that would otherwise be allowed by reference to the land boundary as the 

baseline.

The INS regulation would be clarified by explicitly recognizing that searches 

at sea are limited only by the scope of United States territorial waters, and that inland searches (including searches on inland waters) are separately governed by the 

reasonable distance inland measured from the land boundary. This would entail 

providing separate definitions for the “external boundary” and the “territorial waters,” and linking the reasonable distance limitation solely to the “external [land] 

boundary.”

IV. Conclusion

Undocumented aliens interdicted within the twelve-mile zone that now comprises the territorial sea of the United States are not entitled to a hearing under the 

exclusion provisions of the INA, and may be turned back from the United States by 

the Coast Guard if the President so orders.

19 INS applied the reasonable distance lim itation in this fashion as long ago as 1952. See M em orandum 

for the INS C om m issioner, from the General C ounsel, Re. M eaning o f “external boundary•" o f the United

States in A ct o j F ebruary 27, 1925, as amended, 8 U.S.C. 110, w ith relation to coastlines: Texas g u lf coast

(July 7, 1952) T here, INS took the position th at the “external boundary” baseline from w hich a reasonable 

distance inland should be m easured for search purposes was the outer limit o f the three-m ile territorial waters 

off the eastern shore o f Padre Island, Texas, a narrow strip of land ten miles from the coast line which enclosed an arm o f the G ulf o f M exico.

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The INS had the authority to promulgate an interpretative rule construing the 

“territorial waters” of the United States, as referred to in INA section 287, to extend for twelve nautical miles, and not merely three nautical miles.

Immigration Consequences o f Undocumented A lien s’ A rrival in U.S Territorial Waters

WALTER DELLINGER 

Acting Assistant Attorney General

Office o f Legal Counsel