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Following up on Is criminal prosecution of asylum seekers who entered the US illegally a violation of the Refugee Convention?:

Suppose someone were prosecuted for illegal entry, having admittedly crossed the border in violation of 8 USC 1325(a)(1), either with a pending asylum application, or after having been granted asylum. Could the accused use the fact that the US has ratified the 1967 protocol in defense, despite the fact that the protocol's protection against penalties for illegal entry is not explicit in US law?

Note that there is explicit protection against prosecution for document fraud, seemingly motivated by the US ratification of the protocol, at 8 CFR 270.2(j):

(j) Declination to file charges for document fraud committed by refugees at the time of entry.

The Service shall not issue a Notice of Intent to Fine for acts of document fraud committed by an alien pursuant to direct departure from a country in which the alien has a well-founded fear of persecution or from which there is a significant danger that the alien would be returned to a country in which the alien would have a well-founded fear of persecution, provided that the alien has presented himself or herself without delay to an INS officer and shown good cause for his or her illegal entry or presence. Other acts of document fraud committed by such an alien may result in the issuance of a Notice of Intent to Fine and the imposition of civil money penalties.

This relates to 8 USC 1324c, Penalties for document fraud. A similar provision related to 8 USC 1325(a) does not seem to exist.

  • Unlawful entry in the interior or at a point of entry? – K Dog Aug 16 '18 at 17:49
  • @KDog I've edited the question: "at any time or place other than as designated by immigration officers." Why would it matter? – phoog Aug 16 '18 at 17:53
  • Otherwise I think the activity contradicts presentment to an INS official timely – K Dog Aug 16 '18 at 18:01
  • @KDog probably so. – phoog Aug 16 '18 at 18:08
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Could the accused use the fact that the US has ratified the 1967 protocol in defense, despite the fact that the protocol's protection against penalties for illegal entry is not explicit in US law?

Is The Protocol Self-Executing?

There is one main potential difficulties with this particular defensive theory.

Many international agreements are interpreted by the courts to be not "self-executing" which is to say that they are agreements to pass compliant domestic laws and policies, rather than directly creating rights for individuals. In contrast, if it is self-executing then it can be used as a defense.

The legal effect of the 1967 Refugee Protocol, "Protocol relating to the Status of Refugees", 19 U.S.T. 6223, 606 U.N.T.S. 267 (January 31, 1967), and in particular the question of whether it is self-executing is disputed, at least, academically.

But, a State Department legal opinion which has not clearly and explicitly been overruled by the courts, states that it is not self-executing, despite the fact that a lower Article I court in In re Dunbar, 141. & N. Dec. 310 (Board of Immigration Appeals 1973), had previously held that the Protocol was self-executing (despite ruling against the immigrant on the merits in interpreting the obligations created under the Protocol).

The issue was raised and not resolved in a case related to mass migration from Haiti during the George H.W. Bush administration, but that issue was not reached in the judgment in that case. This position was supported by a 1991 State Department legal memorandum, which claimed that the 1967 protocol was not self-executing. A law review article from 1993 examined this issue rather comprehensively, questioning the conclusion of the State Department Memo. A 1997 law review article argues that it does have binding effect but that the U.S. has erroneously failed to treat it that way in either the courts or in some of its administrative policies.

The thrust of the executive branch legal opinions and case law regarding the Protocol appears to be that it is not self-executing.

The Protocol As A Guide To Statutory Interpretation

On the other hand, even though there is not an explicit U.S. law statute providing a defense to illegal entry, one could argue that since refugee status is recognized in the U.S. that the entry is not illegal. And, the Refugee Convention could definitely be used as evidence of legislative intent in interpreting the law to determine if U.S. law implicitly prohibits such a prosecution, in the face of the question of whether or not other legal authorization to give someone refugee status makes the entry not illegal.

In particular, "it is absolutely clear that the passage of the Refugee Act of 1980 [Pub. L. No. 96-212, 94 Stat. 102] was intended to implement American obligations under the Protocol." (from a 2000 law review article). For example, three of the leading cases interpreting the 1967 Protocol and the Refugee Act of 1980 (with a largely anti-immigrant outcome on the merits) are INS v.Aguirre-Aguirre, 119 S. Ct. 1439 (1999) and INS v. Cardoza-Fonseca, 480 U. S. 421 (1987), and INS v. Stevic, 467 U.S. 407 (1984) (limiting refugee litigation rights), still purported to interpret the Refugee Act of 1980 in light of the fact that it was intended to implement the Protocol.

In addition to the Refugee Convention, the long standing practice (until the current administration) of neither immediately deporting nor prosecuting people who claim refugee status for illegal entry would also argue in favor of this interpretation.

An agency's historical and traditional custom and practice in applying a law is an important part of interpreting laws in which the agency, at the outset, has considerable discretion to resolve ambiguities regarding its meaning, although existing policies and positions of the agency are also entitled to deference.

Furthermore, when Congress amends a law, it is presumed to know the way that the law is currently being interpreted by the Executive Branch and the Courts, and to ratify those positions if they are not changed.

Practical Issues

Any argument referencing the Refugee Protocol would also have to establish under the currently applied precedents that the purported refugee has, or at least is likely to have, a well founded fear of persecution in the country from which they are fleeing. Likewise, the refugee would have to prove that exceptions to the general rule (e.g. national defense and prohibitions on alien non-political criminals) do not apply.

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