International and U.S. obligation toward stowaway asylum seekers.

• Author: Ort, Beate Anna

The day was Sunday, June 4, 1939, when a German Liner, the St. Louis, cruised off Miami Beach. On board were 907 Jewish refugees from Nazi Germany. The ship was surrounded by vessels of the U.S. Coast Guard to prevent any attempts by the refugees to reach the shore, and also to rescue any attempted suicides. The crew and refugees were waiting for a decision by President Roosevelt on their request for political asylum. The request was refused and the ship returned to Europe. The German captain, more humanitarian than the President of the United States, allowed them to land in Holland, Belgium, France, and Britain. A year later, the Nazis invaded Holland, Belgiu, and France and half of the refugees died in concentration camps.(1)

A stowaway(2) asylum seeker denied an adequate opportunity to assert her claim can be returned to her country of origin where she may then face persecution and death, suffering a fate similar to that of the St. Louis passengers. Though many will escape death, often "stowaway asylum-seekers have been confined for many weeks and even months on board ship travelling from one port to another."(3) Because records are incomplete,(4) it is impossible to determine how many stowaways are landing in the United States or to trace the ultimate fate of those rejected at the border. It is known that between 1892 and 1988, 16,300 stowaways were apprehended and excluded, or rejected.(5) This number, however, obviously does not include those who evaded inspection or who were granted asylum.

This Comment addresses protection issues pertaining to stowaway asylum seekers. Section I discusses their treatment under United States law. Section II sets forth the problems with current shipboard screening procedures for stowaways, focusing on access to interpreters (II.B.1) and counsel (II.B.4) and on the obstacles during shipboard interviews of official bias (II.B.2.a) and asylum seeker reticence (II.B.2.b). These procedures are also compared to those used in the Haitian interdiction program (II.B.3). This section argues that, contrary to current practice, all stowaways should be automatically removed from their vessels and granted a hearing, or at least be granted access to an interpreter and to any counsel present. Section III details the involvement of the United Nations High Commissioner for Refugees (UNHCR)(6) in U.S. stowaway cases and suggests possible improvements in this intervention. Section IV then discusses the rights of appeal available to stowaways. Section V assesses the impact of the suggested changes on current U.S. immigration procedures.

The Comment continues with a discussion in section VI of how the United States, once it implemented progressive measures toward stowaway asylum seekers, could then pressure other nations to assume similar obligations, for stowaways are a worldwide problem and an international responsibility. Subsection VI.A describes the dormant International Convention Relating to Stowaways and maintains that the United States could take the lead in securing international commitment to assisting stowaways by initiating the drafting of a new and more comprehensive International Convention Relating to Stowaways, and by backing its ratification. In subsection VI.B the special obligations that port states bear toward stowaways are outlined; subsection VI.C discusses the international role of the UNHCR in protecting stowaways; and subsection VI.D highlights the heightened duties that the international community owes to child stowaway asylum seekers. The conclusion sets forth possible amendments to U.S. and international stowaway procedures that incorporate the solutions suggested in the previous sections.

1. THE EVOLUTION OF U.S. IMMIGRATION LAW REGARDING STOWAWAY ASYLUM SEEKERS

   1. Stowaways as an Excludable Class under Immigration Law

      Through the Immigration Act of 1917, stowaways became excludable(7) from admission into the United States, but the Secretary of Labor was given discretionary power to admit them if they were "otherwise admissible."(8) As a result of the Act, 13,755 stowaways were excluded between 1921 and 1950.(9) Even so, the Immigration and Naturalization Service's (INS) 1948 Annual Report listed stowaways as "one of the five major causes of an unusually heavy work load" and maintained that "'legislation to authorize stowaways being detained on board and deported without ... hearings would make for better law enforcement and conservation of manpower.'"(10)

      In light of the INS's concern, Congress included stowaways among those aliens excludable under the 1951 Immigration and Nationality Act (INA).(11) The legislative history of the Act explained that "[s]towaways are excluded absolutely, whereas at present, the Attorney General has discretionary authority to admit stowaways."(12) Not only did the new INA eliminate the Attorney General's discretion in admitting stowaways, but it included provisions that denied stowaways the right to a hearing before a special inquiry officer(13) and the right to appeal an exclusion decision to the Board of Immigration Appeals (BIA),(14) the highest adminstrative immigration forum.(15)

      It is revealing to compare the procedures afforded stowaways with those applied to other aliens. Section 235 of the INA grants immigration officers the authority to inspect all aliens seeking admission into the United States and to determine whether the alien is entitled to enter.(16) INA Section 235(b) mandates that "every alien ... except as otherwise provided in ... [section] 273(d), who may not appear to the examining immigration officer at the port of arrival to be ... entitled to land shall be detained for further inquiry to be conducted by a special inquiry officer."(17) Under INA Section 236(a), a special inquiry officer is granted "the authority in any case to determine whether an arriving alien who has been detained for further inquiry under section 235 shall be allowed to enter or shall be excluded and deported."(18) Furthermore, an alien normally has the right to appeal a special inquiry officer's exclusion decision to the BIA.(19)

      With respect to stowaways, however, INA Section 273(d) explicitly states that "t]he provisions of section 235 for detention of aliens for examination before special inquiry officers and the right of appeal provided for in section 236 shall not apply to aliens who arrive as stowaways and no such alien shall be permitted to land in the United States."(20) In sum, stowaways are summarily excludable under INA Section 212(a)(18) and are denied permission to land under INA Section 273(d).

      Although the INA does not define the term stowaway, a workable definition can be found in the statute that criminalizes stowing away, 18 U.S.C. Section 2199(21) (entitled "Stowaways on vessels and aircraft"). This statute classifies as a stowaway anyone who, "without the consent of the owner ... or person in command of any vessel, ... [and] with intent to obtain transportation, boards, enters or secretes himself aboard such vessel."(22) Many courts have used this definition or a similar one requiring intent to stow away.(23)

      There are persuasive reasons for according stowaway asylum seekers the right of disembarkation. When the INA was proposed, the Association of Immigration and Nationality Lawyers feared that Sections 212(a)(18) and 273(d) "did not allow full and fair hearings for stowaways and vested judicial or quasi judicial powers 'in the prosecutor or the immigration policemen.'"(24) When they are not permitted ashore stowaways essentially become prisoners aboard their vessels and face a high risk of being returned to persecution. Thus, "although limited in overall numbers, [they] constitute a major protection concern [for the UNHCR]."(25) It is, therefore, important to assess whether the United States is satisfying its obligations toward stowaway asylum seekers.

   2. United States Obligations Toward Asylum Seekers

      Juxtaposed against the limited rights of stowaways is the United States obligation, under treaty and statute, of non-refoulement. By ratifying the 1967 Protocol Relating to the Status of Refugees,(26) which incorporates the 1951 Convention Relating to the Status of Refugees,(27) the United States agreed to abide by Article 33 of the 1951 Convention. This Article states that "[n]o Contracting State shall expel or return ('refouler') a refugee ... to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."(28)

      The Refugee Act of 1980,(29) obligated the Attorney General to establish a procedure for an alien...at a land border or port of entry, irrespective of such alien's status, to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of section 101(a)(42)(A).(30)

      This Act's definition of "refugee" tracked the language of the 1951 Convention. A refugee is defined as any person who has "a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."(31) A corps of specially trained asylum officers has initial jurisdiction over asylum applications "filed by an alien physically present in the United States or seeking admission at a port of entry."(32)

      Once exclusion or deportation proceedings(33) have commenced, asylum claims are considered to be requests for withholding of exclusion or deportation under Section 243(h) and are heard by an immigration judge.(34) If an alien initially is denied asylum by an asylum officer, she can renew her request before an immigration judge in the exclusion or deportation proceeding.(35) While INA Section 208 makes granting of asylum discretionary, INA Section 243(h) mandates withholding of deportation of refugees.(36) Thus, both treaty and statute...