Please update your links! Our new website url is http://masglp.olemiss.edu . This old website will soon cease to exist!

Federal Court Rules for Cuban Refugees
Coast Guard Should Have Allowed them to Stay

Movimiento Democracia, Inc. v. Chertoff, 417 F. Supp. 2d 1343 (S.D. Fla. 2006)

Josh Clemons

In February the U.S. District Court for the Southern District of Florida, Miami Division, held that the U.S. Coast Guard erred when it removed back to Cuba refugees who had arrived at the Seven Mile Bridge in the Florida Keys. The bridge is considered part of the United States, so the refugees had metaphorical “dry feet” and should have been allowed to remain and apply for asylum.

The Cuban Refugees and the Status of the Seven Mile Bridge
In January the U.S. Coast Guard, which is now part of the Department of Homeland Security, interdicted fifteen Cuban refugees from a remnant of the old Seven Mile Bridge in the Florida Keys. The Seven Mile Bridge was built in the early twentieth century by railroad magnate Henry Flagler. Only a small portion of the bridge remains in use today. It still provides access to Pigeon Key, but beyond that a cut in the bridge separates it from land. The refugees landed on a piece of the old bridge that still stands beyond the cut.
Under the Immigration and Nationality Act (INA), 8 U.S.C. § 1225(a)(1), an alien who “arrives in the United States” is considered an applicant for admission to the country and is entitled to remain here to apply for asylum. An alien who is interdicted at sea is removed to his home country. This is known as the “wet foot/dry foot” policy.

After picking up the Cubans the Coast Guard had to determine whether the Seven Mile Bridge was part of the U.S. for “wet foot/dry foot” purposes. The Coast Guard relied on a legal opinion contained in a memo from Lt. Cmdr. Kieserman of the Office of Maritime and International Law of the Judge Advocate General of the U.S. Coast Guard. Kieserman, in response to a request from the local Coast Guard office where the Cubans were interdicted, reasoned that arrival at the bridge did not constitute arrival in the U.S. This conclusion was based on the fact that the section of the bridge in question was not physically connected to U.S. soil. Under the law of the sea, an artificial structure that does not have its own territorial sea cannot confer “dry feet.” In Kieserman’s estimation, the bridge section was analogous to a buoy moored to the bottom of the ocean. Refugees who land on such a buoy would still have “wet feet” because legally they would still be adrift on the U.S.’s territorial sea. The Kieserman memo suggested that recognizing the Seven Mile Bridge as dry land would enable “migrant smugglers” to affix platforms to the ocean bottom in U.S. waters to ply their trade.1

The Coast Guard, having made its judgment call on the bridge, returned the refugees to Cuba. The refugees appealed to the U.S. federal court system to determine the validity of Kieserman’s conclusion, and to seek a return to the U.S.

Legal Analysis
One might think this case primarily invokes immigration law, or international law, or admiralty; however, like many cases in which individuals challenge government actions, this case is squarely within the realm of administrative law. Administrative law governs, among other things, the validity of actions taken by government agencies. In this case the agency action challenged by the refugees was Kieserman’s interpretation that the INA’s territorial reach did not encompass the Seven Mile Bridge.
When a plaintiff challenges an agency’s interpretation of a statute, as happened here, the court will initially determine whether Congress expressed its intent so clearly that there is no need for interpretation at all. If that is the case, then the court will reject any contrary agency interpretation. Congress rarely speaks so clearly, however, and most statutes contain at least some ambiguity, which the administering agency must clarify.

A key premise of administrative law is that courts generally owe deference to agency interpretations of the laws they administer. Agencies are presumed to have expertise in their fields, and as extensions of the elected executive branch of government they are more easily held accountable by the citizens they serve. However, in keeping with the principle of checks and balances, deference to agencies is not without limits. The level of deference that courts give to agency interpretations correlates to the formality of the agency’s decision-making process.

When an agency has followed full, formal decision-making procedures, complete with public notice and comment, courts are very deferential; an agency interpretation of a statute will be upheld if it is a “permissible construction of the statute.”2 In other words, the agency’s interpretation need not be the best one possible, it need only be one that is not clearly contrary to the statute. Less formal decision-making warrants less deference. Interpretations like the one at issue here, which was provided in an opinion letter, must be not only permissible but also persuasive.

In this case the court felt that it was unnecessary to pin down the required deference level. In the court’s opinion the Coast Guard’s interpretation was worthy of no deference because it was simply unreasonable. The court perceived the Coast Guard to be proposing a “bright line rule” requiring a structure to be connected to land before it is considered part of the U.S., to protect against the threat of migrant-smuggling platforms as envisioned by Lt. Cmdr. Kieserman.3 This bright line rule is unreasonable, the court reasoned, because Coast Guard personnel can easily distinguish a structure of “historical significance” like the Seven Mile Bridge from “a manmade structure that was more recently anchored to the sea floor.”4

In its defense the Coast Guard argued that U.S. Supreme Court caselaw requires migrants to “depart from their vessels and come ashore onto United States soil” in order to “land” in the U.S., and that the refugees were still in U.S. territorial waters when they were picked up.5 The court, having determined that the Seven Mile Bridge is U.S. territory for purposes of the INA, rejected these arguments.

Conclusion
The court denied the Coast Guard’s motion for summary judgment and ruled in favor of the refugees, reasoning that the Coast Guard’s determination that the Seven Mile Bridge was not part of the U.S. for INA purposes was unreasonable. The court acknowledged its lack of authority to order the return of the refugees from Cuba, but nonetheless ordered the Coast Guard to exert its “best efforts to give [the refugees] the due process rights to which they were entitled when they landed” on the bridge.6

Endnotes
1. Movimiento Democracia, Inc. v. Chertoff, 417 F. Supp. 2d 1343, 2006 WL 521558 at *4 (S.D. Fla. 2006).
2. Chevron U.S.A., Inc. v. Nat. Resources Defense Council, 467 U.S. 837, 843 (1984).
3. Movimiento Democracia at *4.
4. Id. at *5.
5. Id. at *5-6.
6. Id. at *6.

University of Mississippi