Charting a Course Toward a Legal Challenge in At-sea Interdiction and Custody Scenarios: Habeas Corpus as a Light on the Horizon

NOTES

CHARTING A COURSE TOWARD A LEGAL

CHALLENGE IN AT-SEA INTERDICTION AND

CUSTODY SCENARIOS: HABEAS CORPUS AS A

LIGHT ON THE HORIZON

KRISTEN R. BRADLEY*

TABLE OF CONTENTS

INTRODUCTION ......................................... 844

I. LEGAL FRAMEWORK FOR AT-SEA INTERDICTION AND

REPATRIATION .................................... 846

A. Statutory Framework ........................... 846

B. Executive Policy – Migrant Interdiction.............. 848

C. U.S. Coast Guard Alien-Migrant Interdiction Authority and

Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 851

D. U.S. Coast Guard Search and Rescue Authority and Policy 854

II. THE LEGAL PATHWAY TO CHALLENGE DETENTION ............. 856

A. Pre-Boumediene v. Bush.................. ....... 857

* Kristen R. Bradley, Lead Line Editor, Volume 35, Georgetown Immigration Law Journal. J.D.

Candidate, 2021, Georgetown University Law Center; B.S., 2012, United States Coast Guard Academy.

The author is a Lieutenant in the United States Coast Guard. The views expressed herein are her own and

do not represent the views of the Coast Guard, the Department of Homeland Security, or the United States

government. I would like to thank my many Coast Guard colleagues, especially Lieutenant Katherine

Graichen, who provided assistance throughout the drafting and editing of this Note. Additionally, I would

like to thank Smita Ghosh, Patrick Glen, and the Georgetown Immigration Law Journal staff for their

careful review and comments on this Note. © 2021, Kristen R. Bradley.

843

B. Boumediene v. Bush. . . . . . . . . . . . . . . . . . . . . . . . . . . . 858

C. Post-Boumediene v. Bush........................ 859

III. CHALLENGING THE DETENTION SCENARIOS .................. 862

A. The Availability of the Writ. . . . . . . . . . . . . . . . . . . . . . . 863

1. Detention On Board U.S. Coast Guard Cutters . . . . . . 863

2. Detention in Guantanamo Bay .................. 866

B. The Nature of the Writ........................... 868

1. Requirement One: In Custody . . . . . . . . . . . . . . . . . . 868

2. Requirement Two: Nature of the Challenge........ 870

3. Requirement Three: Remedy. . . . . . . . . . . . . . . . . . . 873

4. The Habeas Requirements in Practice: An Example . . 875

IV. CONCLUSION AND THE WAY AHEAD . ...................... 878

INTRODUCTION

Land-based migration into the United States has gained increased political

and social attention since the Trump administration took off‌ice in 2017. As a

result, most legal challenges brought by advocacy organizations have cen-

tered around cases originating from land border crossings and arrivals at ports

of entry. Yet, attempted illegal immigration through maritime routes remains

a common occurrence, as it has for decades.

1

In fact, the total known f‌low of

undocumented aliens attempting to enter the United States by maritime

routes has increased in recent years, specif‌ically by thirty-six percent from

Fiscal Years 2018 to 2019, to a total of 7,093 aliens.

2

This number is pro-

jected to remain the same and may even increase in the coming years, which

means that issues related to maritime migration will be continuously rele-

vant.

3

Yet, despite the growing sea-based f‌low of aliens toward the United

States, this area of immigration remains largely unseen and unknown to the

public—except during times of mass migration, often resulting from eco-

nomic and political instability in countries such as Cuba, Haiti, and the

Dominican Republic. The lack of public attention, exacerbated by the practi-

cal diff‌iculties encountered by aliens who seek to draw attention to their own

experiences, has left alien rights in the at-sea interdiction context largely

1. See AZADEH DASTYARI, UNITED STATES MIGRANT INTERDICTION AND THE DETENTION OF

REFUGEES IN GUANTA

´NMO BAY 4 (2015) (citing maritime migrant interdiction statistics dating back to

1982).

2. U.S. COAST GUARD ANNUAL PERFORMANCE REPORT (2019) at 32, https://www.uscg.mil/Portals/

0/documents/budget/FY19-USCG-APR.pdf?ver=2020-05-20-113137-970 [hereinafter FY 2019 Annual

Performance Report].

3. See id.

844 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 35:843

untested and in a greater state of uncertainty than those that are vaguely

def‌ined, at best, in the land-based migration context.

In particular, one question generally remains unanswered: can an alien,

4

who was interdicted at sea and held in U.S. government custody outside of

the United States, challenge their detention before they are returned to their

country of origin? This question seems even more pertinent following the

Supreme Court’s groundbreaking decision in Boumediene v. Bush, which

recognized that enemy combatants detained in Guantanamo Bay, Cuba have

the right to petition for the writ of habeas corpus. In light of Boumediene, this

Note seeks to answer that question in the aff‌irmative as it relates to the avail-

ability of habeas corpus as one possible route for aliens to challenge their

extraterritorial detention. Concededly, habeas corpus may be an imperfect so-

lution in addressing all of the issues that may arise in the at-sea interdiction

context, but it serves, at a minimum, as one of the only possible guiding lights

for recourse in an otherwise very murky and undef‌ined area of the law.

In examining the availability of habeas corpus, Part I of this Note will pro-

vide background on the U.S. government’s statutory and policy framework

governing at-sea alien interdiction, and specif‌ically the U.S Coast Guard’s

authority and policy in this area. Then, Part II will examine the legal frame-

work surrounding habeas corpus as it has evolved through case law. In Part

III, the current legal framework will be applied to scenarios commonly faced

by aliens interdicted at sea in an attempt to determine whether habeas corpus

will be found available to aliens in each scenario. This Note, and Part III in

particular, will examine the availability of the writ of habeas corpus in two

scenarios: (1) aliens held in custody on board a U.S. government vessel—

specif‌ically a U.S. Coast Guard cutter,

5

and (2) aliens held in custody at

a U.S. government-operated holding facility—specif‌ically the Migrant

Operations Center in Guantanamo Bay, Cuba.

This Note will argue that habeas corpus is available to aliens held in both

scenarios, and that recognition of this right may be the only available means

for aliens who are never brought to the United States to challenge the legality

of their detention. In spite of the obstacles that may be encountered by aliens

who attempt to exercise this right, this Note will emphasize that recognition

of the right’s availability is an important f‌irst step in ensuring that the

Executive’s power to interdict and repatriate aliens at sea does not go wholly

unchecked.

4. This Note will refer to persons who are not U.S. citizens as “aliens” in order to mirror the language

from the applicable Executive Orders and statutes, including the def‌inition found in 8 U.S.C. § 1101(a)(3)

at the time of this writing. Where the term “migrant” appears within this Note, it refers to: (1) persons

interdicted at sea who do not have a lawful status in the United States, and (2) persons interdicted at sea

who are not U.S. citizens or non-citizen nationals, lawful permanent residents, or parolees with permis-

sion to travel and return to the United States; and/or (3) undocumented persons interdicted or intercepted

at sea where there is reasonable belief the person is seeking to enter the United States. The term “migrant”

is frequently used in U.S. government agency policy and procedure.

5. “Cutter” is the term used to refer to a Coast Guard ship that is greater than sixty-f‌ive feet in length.

2021] CHARTING A COURSE TOWARD A LEGAL CHALLENGE 845