Section 235A of the Immigration and Nationality Act ( 2000 )

Section 235A of the Immigration and Nationality Act
Section 235A o f the Im m igration and N ationality Act requires the A ttorney Genera) to establish and
m aintain certain p reinspection stations, p rovided the foreign countries concerned have consented
to th e estab lish m en t o f such stations on th e ir territory and provided th at certain other preconditions
h ave been satisfied.
Section 2 35A d o es not o blige the Attorney G eneral or any other executive branch official to enter
into diplo m atic n egotiations w ith foreign countries in o rd er to obtain their consent to the establish­
m ent o f p reinspection stations on their territory, and it does not require that preinspection stations
be estab lish ed b efo re the preconditions h av e been satisfied. A ccordingly, section 235A does not
u n con stitutionally infringe on the President’s authonty to conduct diplom atic relations.
October 23, 2000
M em orandum O p in io n fo r t h e G en era l C o u n sel
I m m ig r a t i o n and N a t u r a l iz a t io n S e r v i c e
You have requested our opinion whether section 235A of the Immigration and
Nationality Act ( “ ENA” ), 8 U.S.C. § 1225a, which requires the Attorney General
to establish and maintain immigration preinspection stations in certain foreign air­
ports, unconstitutionally infringes on the President’s authority to conduct diplo­
matic relations with other nations. As we explain more fully below, we believe
that section 235A requires the Attorney General to establish and maintain certain
preinspection stations provided the foreign countries concerned have consented
to the establishment of such stations on their territory and provided that certain
other preconditions have been satisfied. Section 235A does not, however, oblige
the Attorney General or any other executive branch official to enter into diplo­
matic negotiations with foreign countries in order to obtain that consent, and it
does not require that preinspection stations be established before the preconditions
have been satisfied.
BACKGROUND
Section 235A was added to the INA by section 123 of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104—208, 110
Stat. 3009—546, 3009-560 ( “ IIRIRA” ). It mandates the establishment of immigra­
tion “ preinspection” stations at certain foreign airports.1 Prior to the passage of
section 235A, the INA authorized, but did not require, the establishment of
preinspection stations, and the relevant statutory provisions were neither modified
1 “ Preinspection” generally refers to immigration inspection procedures conducted at foreign ports of embarkation
by United States authorities for passengers seeking entry into the United States In some instances, immigration
preinspection is accompanied by U S. Customs clearance as well. Sites containing both immigration and customs
inspection are generally called “ preclearance” sites See, e.g., Agreement Between the Government of the United
States o f America and the G overnment of Canada on Air Transport Preclearance, May 8, 1974, art 1(a), 25 U S T
763 ( “ U S.-Canada A greem ent” ). Section 235A refers only to preinspection.
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Section 235A o f the Immigration and Nationality Act
nor repealed by passage of section 235A. Specifically, under INA § 103(a)(7),
8 U.S.C. § 1103(a)(7), the Attorney General “ may, with the concurrence of the
Secretary of State, establish offices of the [INS] in foreign countries.” Pursuant
to that authority, the INS established and maintains preinspection stations at air­
ports in Canada, Ireland, Bermuda, and several other ports of embarkation in the
Caribbean. Establishing those stations involved entering into diplomatic negotia­
tions with the foreign countries involved. See, e.g., U.S.-Canada Agreement, 25
U.S.T. at 763.
In contrast, section 235A requires (and does not merely authorize) the establish­
ment of preinspection stations. Section 235A(a)(l), which is entitled “ New Sta­
tions,” provides:
Subject to paragraph (5), not later than October 31, 1998, the
Attorney General, in consultation with the Secretary of State, shall
establish and maintain preinspection stations in at least 5 of the
foreign airports that are among the 10 foreign airports which the
Attorney General identifies as serving as last points of departure
for the greatest numbers of inadmissible alien passengers who
arrive from abroad by air at ports of entry within the United States.
Such preinspection stations shall be in addition to any preinspection
stations established prior to the date of the enactment of such Act
[September 30, 1996].
Additionally, section 235A(a)(4), which is entitled “ Additional Stations,” pro­
vides:
Subject to paragraph (5), not later than October 31, 2000, the
Attorney General, in consultation with the Secretary of State, shall
establish preinspection stations in at least 5 additional foreign air­
ports which the Attorney General, in consultation with the Secretary
of State, determines, based on the data compiled under paragraph
(3) and such other information as may be available, would most
effectively reduce the number of aliens who arrive from abroad by
air at points of entry within the United States who are inadmissible
to the United States. Such preinspection stations shall be in addition
to those established prior to the date of the enactment of such Act
[September 30, 1996] or pursuant to paragraph (l).2
2 Section 235A(a)(3), which is referenced in section 235A(a)(4), provides
Not later than November 1, 1997, and each subsequent November 1, the Attorney General shall compile
data identifying —
(A) the foreign airports which served as last points o f departure for aliens who arrived by air at United
States ports o f entry without valid documentation dunng the preceding fiscal years,
(B) the number and nationality o f such aliens arriving from each such foreign airport, and
Continued
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Finally, sections 235A(a)(l) and (4) are both “ [s]ubject to” section 235A(a)(5),
which identifies certain “ [c]onditions” :
Prior to the establishment of a preinspection station the Attorney
General, in consultation with the Secretary of State, shall ensure
that —
(A) employees of the United States stationed at the preinspection
station, and their accompanying family members will receive appro­
priate protection;
(B) such employees and their families will not be subject to
unreasonable risks to their welfare and safety; and
(C) the country in which the preinspection station is to be estab­
lished maintains practices and procedures with respect to asylum
seekers and refugees in accordance with the Convention Relating
to the Status of Refugees (done at Geneva, July 28, 1951), or the
Protocol Relating to the Status of Refugees (done at New York,
January 31, 1967), or that an alien in the country otherwise has
recourse to avenues of protection from return to persecution.
These requirements stand as conditions precedent to the statutory duty to establish
any o f the preinspection stations called for by sections 235A(a)(l) and (4): the
Attorney General must ensure that they are met “ [p]rior to the establishment of
a preinspection station,” INA §235A(a)(5), and the statutory requirement that
preinspection stations be established by defined dates is “ [sjubject to” these pre­
conditions. Id. §235A (a)(l) and (4).3
After the enactment of section 235A, a working group consisting of representa­
tives from the INS and the Department of State was established to identify poten­
tial sites for preinspection stations. The working group ultimately identified sixteen
potential sites (in fifteen countries) for preinspection stations that met the criteria
set forth in section 235A.4 The Commissioner of the INS sent a letter to the
Department of State requesting that it ascertain, inter alia , whether countries con­
taining the sites identified by the working group were willing to allow
preinspection stations on their territory. The State Department then instructed
(C) the prim ary routes such aliens followed from their country o f ongin to the United States
3 Preinspection stations may be established fo r a variety o f reasons, including passenger convenience See, e g ,
U .S -C anada Agreement, preamble, 25 U.ST at 764 (staling that “ preclearance facilitates air travel between the
two countries” ) It is clear from the text of section 235A that the preinspection stations it contemplates are intended
to decrease the number o f inadmissible aliens entering the United States The legislative history confirms this point
See H.R. Rep No 104-469, 177-78 (1996) ( “ [P]assengers refused permission [at a preinspection station] to board
[an airplane bound for the United States], on the ground that they do not have valid documents to be admitted
or are otherw ise inadmissible, will be prevented from even reaching a U.S port of entry, thus reducing the burden
on INS inspection facilities and the likelihood that unauthorized aliens will enter the U S ” )
4 Those sites are- London, M exico City, Tokyo, Amsterdam, Frankfurt, Pans, Taipei, Seoul, Caracas, Santo
Domingo, Kingston, Sao Paolo, Rome, Guadalajara, Guatemala City, and Port au Pnnce See Memorandum for Chns
Sale, D eputy Commissioner, INS, from Michael D. Cronin, Assistant Commissioner. INS, Re- Preinspection Working
Group at 5 -6 (July 22, 1997).
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American embassies and consulates in the relevant countries to explore that issue
with host country officials. In a letter dated January 20, 1998, the Assistant Sec­
retary of State for Consular Affairs reported that “ only one [country] (Jamaica)
gave preliminary indication that it would support establishment of an INS
preinspection station.” Letter for Hon. Doris Meissner, Commissioner, INS, from
Mary A. Ryan, Assistant Secretary for Consular Affairs, Dept, of State at 2 (Jan.
20, 1998) (“ Ryan Letter” ).5 To date, no preinspection stations have been estab­
lished pursuant to section 235A.
DISCUSSION
To determine whether section 235A unconstitutionally intrudes on the Presi­
dent’s authority to conduct foreign relations, we begin by identifying section
235A’s precise requirements. For present purposes, this involves interpreting sec­
tions 235A(a)(l), (4), and (5). The first two provisions stipulate how many
preinspection stations are to be established and maintained, the criteria those sta­
tions must meet, and the dates by which they are to be established. The third
specifies certain conditions that must be met before a preinspection station is
established.
Sections 235A(a)(l) and (4) both direct the Attorney General, in consultation
with the Secretary of State, to “ establish” (and, in the case of section 235A(a)(l),
“ maintain” ) preinspection stations meeting certain criteria. Section 235A(a)(l)
provides that, by Octobcr 31, 1998, the Attorney General “ shall establish and
maintain preinspection stations in at least 5 of the foreign airports that are among
the 10 foreign airports which the Attorney General identifies as serving as last
points of departure for the greatest numbers of inadmissible alien passengers who
arrive from abroad by air at ports of entry within the United States.” Id. Section
235A(a)(4) provides that, by October 31, 2000, she “ shall establish preinspection
stations in at least 5 additional foreign airports which the Attorney General, in
consultation with the Secretary of State, determines, based on the data compiled
under paragraph (3) and such other information as may be available, would most
effectively reduce the number of aliens who arrive from abroad by air at points
of entry within the United States who are inadmissible to the United States.”
Id. Sections 235A(a)(l) and (4) thus appear to contemplate a two-step process.
First, the Attorney General is to identify potential sites for preinspection stations
that meet the criteria set out in the relevant section. Second, she is to establish
such stations at a minimum number of sites by the dates prescribed.
5 The Ryan Letter noted that “ [o]ne country (Dominican Republic) indicated it might be willing to allow a
preinspection staiion, but only if full preclearance was allowed, i.e customs inspections as w ell.” Ryan Letter at
2 The Ryan Letter further explained that fourteen countries were “ queried ” Id at 2. As to the fifteenth country,
Guatemala, the Ryan Letter explained that “ [o]ur embassy in Guatemala has not yet been able to obtain an initial
reaction from authorities in that country.’* Id.
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Additionally, however, sections 235A(a)(l) and (4) both provide that their
requirements are “ [s]ubject to” section 235A(a)(5), which, in turn, sets out certain
conditions that must be met before a preinspection station is established. See supra
p. 279 (quoting section 235A(a)(5)). The ordinary meaning of “ subject to”
includes “ governed or affected b y .” Black’s Law Dictionary 1425 (6th ed. 1990).
Thus, sections 235A(a)(l) and (4), including the deadlines they prescribe, are
“ governed or affected by” the conditions set out in section 235A(a)(5).6 Once
the Attorney General identifies a potential site for a preinspection station, the
requirement that it be “ established” by a particular date does not take effect until
the Attorney General is able to ensure that the site meets section 235A(a)(5)’s
conditions.
Section 235A does not specify precisely how the Attorney General is to ensure
that the sites she selects for preinspection stations meet section 235A(a)(5)’s
conditions or how she is to go about establishing and maintaining such stations
once they meet those conditions. Because the preinspection stations are to be
located in foreign countries, establishing those stations is not entirely within the
control of the Attorney General or, indeed, the executive branch as a whole.
Rather, preinspection stations can only be established after the United States
obtains the consent of the foreign countries concerned. See, e.g., U.S.-Canada
Agreement, supra.1
For two reasons, we do not read section 235A as requiring the executive branch
to seek or obtain such consent. First, such a reading would impose on the execu­
tive branch the obligation to achieve outcomes beyond its control. While the
Executive may negotiate with foreign sovereigns in an effort to obtain their con­
sent to the establishment of preinspection stations within their territory, it is not
within the Executive’s power to ensure that such consent is actually given. Simi­
larly, the Attorney General’s ability to ensure that section 235A(a)(5)’s conditions
are met depends at least in part on the cooperation of the relevant foreign govern­
ment, cooperation that she cannot guarantee. Providing “ appropriate protection”
to federal employees working at preinspection stations, protecting those employees
and their families from “ unreasonable risks to their welfare and safety,” and
ensuring that aliens in a foreign country receive appropriate “ protection from
return to persecution’ ’ are all undertakings that require the cooperation and partici­
pation of the foreign sovereign concerned. Id. Without that cooperation and
participation, it is not possible for the Attorney General herself either to ensure
6 C f American Rivers v. FERC, 201 F 3d 1186, 1204 (9th Cir. 2000) (“ W e therefore interpret ‘subject to paragraph
(2)’ to mean precisely what it says subsection 1 0 (j)(l) is governed or affected by subsection 10(j)(2) ” )
7 This is tm e both as a practical matter and as a matter o f customary international law Under the latter, it is
generally well-settled that an agent of a state m ay not act on the state’s behalf within foreign territory without
the consent o f the foreign sovereign See, e.g., Ian Brownlie, Principles o f Public International Law 306-07 (3d
ed 1979); Hans Kelsen, Principles o f International Law 317-18 (2d ed 1966) ( “ That the territory enclosed by
the boundaries o f a state legally belongs to this state o r — as it is usually characterized— that it is under the territorial
supremacy or sovereignty o f this state means that all individuals staying on this territory are, in principle, subjected
to the legal pow er o f that state and only of that state.’’)
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that section 235A(a)(5)’s conditions are met or to establish and maintain
preinspection stations as required by sections 235A(a)(l) and (4).
We presume that section 235A is not intended to demand the impossible of
the Attorney General. See M cNeil v. Time Ins. Co., 205 F.3d 179, 187 (5th Cir.
2000) (“ It is a flawed and unreasonable construction of any statute to read it
in a manner that demands the impossible.” ); Ambassadors and other Public M in­
isters o f the United States, 7 Op. Att’y Gen. 186, 218 (1855) (Cushing, Att’y
Gen.) (“ [I]t is unreasonable to presume in any circumstances . . . that Congress
intended to enact what is unreasonable.” ). Accordingly, we do not read section
235A as requiring the executive branch to obtain either foreign countries’ consent
to the establishment of preinspection stations or their cooperation in ensuring that
section 235A(a)(5)’s conditions are met with respect to those stations.
Second, we do not read section 235A to require the Executive to enter into
diplomatic negotiations to obtain foreign countries’ consent to the establishment
of preinspection stations, because such a requirement would unconstitutionally
infringe on the President’s foreign affairs power. The Constitution commits to
the President the responsibility for conducting the nation’s foreign affairs.8 That
responsibility includes the ‘‘ ‘exclusive authority to determine the time, scope, and
objectives’ ” of all international negotiations. Issues Raised by Foreign Relations
Authorization Bill, 14 Op. O.L.C. 37, 41 (1990) (quoting 2 Pub. Papers of Ronald
Reagan 1541, 1542 (1987) (President Reagan’s statement on signing the Foreign
Relations Authorization Act, Fiscal Years 1988 and 1989)). If section 235A were
construed to require the Executive to negotiate with foreign countries in an attempt
to obtain their consent to the establishment of preinspection stations, it would
unconstitutionally intrude on that exclusive authority. Such a reading would run
afoul of the principle that Congress may not require the Executive to “ initiate
discussion with foreign nations” or “ order[] the Executive to negotiate and enter
into treaties” or other types of international agreements. Earth Island Inst. v.
Christopher, 6 F.3d 648, 652-53 (9th Cir. 1993); see 2 Pub. Papers of William
J. Clinton 1685, 1688 (1999) (President Clinton’s statement on signing the
National Defense Authorization Act for Fiscal Year 2000) ( “ Congress may not
direct that the President initiate discussions or negotiations with foreign govern­
ments.” ). It would also impermissibly specify the precise subject matter o f the
Executive’s communications with foreign governments. See id. at 2035, 2036
(President Clinton’s statement on signing Legislation to Locate and Secure the
s See U.S. Const art II, §§ 1-3, Department o f Navy v. Egan, 484 U.S. 518, 529 (1988) (the Supreme Court
has “ recognized ‘the generally accepted view that foreign policy [i]s the province and responsibility of the Execu­
tive’ ” ) (quoting Haig v Agee, 453 U S 280, 293-94 (1981)), Alfred Lord Dunhill o f London, Inc. v. Republic
o f Cuba, 425 U.S. 682, 7 05-06 n.18 (1976) ( “ [T]he conduct of [foreign policy] is committed primarily to the Execu­
tive Branch.” ); U nited States v Louisiana, 363 U S ), 35 (1960) (the President is “ the constitutional representative
of the United States in its dealings with foreign nations” ), Sanchez-Espinoza v Reagan, 770 F.2d 202, 210 (D.C
Cir. 1985) (Scalia, J.) ( “ [BJroad leeway” is “ traditionally accorded the Executive in matters o f foreign affairs.” );
Thomas Jefferson, Opinion on the Powers o f the Senate Respecting Diplomatic Appointments (Apr. 24, 1790), in
16 The Papers o f Thomas Jefferson 378, 379 (Julian P Boyd ed. 1961) ( “ The transaction of business with foreign
nations is Executive altogether.” ).
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Return of Zachary Baumel, a United States Citizen, and Other Israeli Soldiers
M issing in Action) ( “ To the extent that this provision can be read to direct the
Secretary of State to take certain positions in communications with foreign govern­
ments, it interferes with my sole constitutional authority over the conduct of diplo­
matic negotiations.” ); 2 Pub. P apers o f William J. Clinton 1815, 1815 (1996)
(President Clinton’s statement on signing the Sustainable Fisheries Act) ( “ Under
our Constitution, it is the President who articulates the Nation’s foreign policy
and who determines the timing and subject matter of our negotiations with foreign
nations.” ).9 Accordingly, because section 235A does not expressly require the
Executive to negotiate with foreign countries on the topic of preinspection stations,
and because such a requirement would violate the constitutional separation of
powers, we conclude that the statute should not be construed to so require.10
CONCLUSION
In sum, we conclude that under section 235A, the Attorney General is required
to identify certain potential sites for preinspection stations that fit the criteria set
forth in sections 235A(a)(l) and (4). Before any such station is established, she
is also required to ensure that the conditions prescribed in section 235A(a)(5) are
satisfied. A condition precedent both to the satisfaction of section 235A(a)(5)’s
conditions and to the actual establishment of any preinspection station is that the
foreign government concerned agree to the establishment of the station. Construing
section 235A as requiring the executive branch to fulfill that condition would both
oblige the Executive to achieve outcomes beyond its control11 and infringe on
the Executive’s broad authority over foreign affairs. Accordingly, we do not read
9 See also Issues Raised by Foreign Relations Authorization Bill, 14 O p O L C at 41 ( “ The President is the
constitutional representative o f the United States with regard to foreign affairs He manages our concerns with foreign
nations, and must necessarily be most competent to determine when, how, and upon what subjects negotiations
may be urged with the greatest prospect of success.” ) (emphasis added) (quoting Reports of the Senate Committee
on Foreign Relations, S. Doc. No. 231, pt 8, 56th Cong., 2d Sess. 24 (1901)); H. Jefferson Powell, The President’s
Authority O ver Foreign A ffa irs’ An Executive Branch Perspective, 67 Geo. Wash L Rev. 527, 558 (1999) C ‘[T]he
executive’s pow er over negotiations vests in it the discretion to determine the goals as well as the modes of diplo­
m acy.” ).
10 O ur approach on this point is consistent with the Supreme Court’s admonition to interpret statutes so as to
avoid constitutional questions where possible. See Jones v. United States, 524 U.S. 848, 857 (2000) ( “ [W]here
a statute is susceptible o f two constructions, by one of which grave and doubtful constitutional questions arise and
by the other o f which such questions are avoided, our duty is to adopt the la tte r” ) (quoting United States ex rel
Attorney G eneral v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909)); Jones v. United States, 526 U S . 227,
239 (1999); Cahfano v. Yamasaki, 442 U S . 682, 693 (1979), Crowell v Benson, 285 U S 22, 62 (1932), cf.
Ashw ander v 7V A , 297 U S 288, 347 (1936) (Brandeis, J., concum ng) ( “ [l]f a case can be decided on either
o f tw o grounds, one involving a constitutional question, the other a question of statutory construction or general
law, the Court will decide only the latter.” )
11 W e note that executive branch officials have, since the passage of section 235A, raised the issue o f preinspection
stations with a num ber o f foreign governments After a joint INS-Department of State working group identified
sixteen potential sites for preinspection stations, the State Department instructed American embassies and consulates
in the countries concerned to explore the preinspection issue with host country officials. See supra pp 279-80
O nly one o f the countries quened gave preliminary indication lhat it would support the establishment of a
preinspection station within its territory See supra pp 279-80 & note 5; Ryan Letter at 2 W ithout that support,
the establishm ent o f preinspection stations in those countries does not appear possible.
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section 235A as requiring the Executive either to seek or to obtain the consent
of foreign countries to the establishment of preinspection stations within their
territory.
RANDOLPH D. MOSS
Assistant Attorney General
Office o f Legal Counsel
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