Cite as: 509 U. S. 155 (1993)
Blackmun, J., dissenting
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.16
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. 244, 248-259 (1991); Foley Bros., Inc. v. Filardo, 336 U. S. 281, 285 (1949). Here there is no room for
porary protected status). The majority offers no hypothesis for why Congress would not have done so here as well.
16 Even if the majority's Leng May Ma proposition were correct, it would not support today's result. Leng May Ma was an excludable alien who had been in custody but was paroled into the United States. The Court determined that her parole did not change her legal status, and therefore that her case should be analyzed as if she were still "in custody." The Court then explained that "the detention of an alien in custody pending determination of his admissibility does not legally constitute an entry though the alien is physically within the United States," and stated: "It seems quite clear that an alien so confined would not be 'within the United States' for purposes of § 243(h)." 357 U. S., at 188. Leng May Ma stands for the proposition that aliens in custody who have not made legal entries—including, but not limited to, those who are granted the privilege of parole—are legally outside the United States. According to the majority, Congress deleted the territorial reference in order to extend protection to such aliens. By the majority's own reasoning, then, § 243(h) applies to unadmitted aliens held in United States custody. That, of course, is exactly the position in which the interdicted Haitians find themselves.
205
Page: Index Previous 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 NextLast modified: October 4, 2007