STATEMENT OF INTEREST 1 INTRODUCTION AND SUMMARY OF ARGUMENT 4 ARGUMENT 9 A. In Passing the Refugee Act of 1980 Congress Unambiguously Intended To Ensure That U.S. Law Is In Conformity With The 1967 Protocol By Which the United States Is Bound. CONCLUSION 30 Cases Ali v. Ashcroft, 213 F.R.D. 390 (W.D. Wash. 2003) 13 Aquamar, S.A. v. Del Monte Fresh Produce, N.A., 179 F.3d 1279 (11th Cir. 1999) 15 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) 9, 10, 12 Chew Heong v. United States, 112 U.S. 536 (1884) 13 Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) 15 Flores v. Southern Peru Copper Corp., 414 F.2d 233 (2d Cir. 2003) 15 INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) passim INS v. Stevic, 467 U.S. 407 (1984) 10, 12 Kim Ho Ma v. Ashcroft, 257 F.3d 1095 (9th Cir. 2001) 14 Lauritzen v. Larsen, 345 U.S. 571 (1953) 13 MacLeod v. United States, 229 U.S. 416 (1913) 13 Marincas v. Lewis, 92 F.3d 195 (3d Cir. 1996) 11 Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804) 10, 12 United States v. Schiffer, 836 F. Supp. 1164 (E.D.Pa. 1993), aff'd, 31 F.3d 1175 (3d Cir. 1994) 13 United States v. Smith, 18 U.S. (5 Wheat.) 153 (1820) 15 Weinberger v. Rossi, 456 U.S. 25 (1982) 13 Board of Immigration Appeals In re A-H-, 23 I. & N. Dec. 774 (A.G. 2005) passim Statutes 8 U.S.C. ? 1231(b)(3)(B)(iv) 6 International Court Decisions Attorney General v. Zaoui, Dec. No. CA20/04 (N.Z. CA Sept. 30, 2004) 24, 25, 27, 28 Betkoshabeh v. Minister for Immigration & Multicultural Affairs, 157 A.L.R. 95 (Austl. FC, July 29, 1998), rev'd on grounds of mootness, (1999) 55 A.L.D. 609 (Austl. FFC, July 20, 1999) 27 “NSH” v. Home Sec'y, [1988] Imm. A.R. 389 (Eng. C.A.) 27, 28 Suresh v. Minister of Citizenship & Immigration, S.C.C. No. 27790 (Mar. 8, 2001) 18, 19, 23 Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 (Can. 2002) 25, 27 Other Authorities Atle Grahl-Madsen, Commentary on the Refugee Convention 1951 (UNHCR 1963) 24 D.J. Harris, Cases and Materials on Internation Law (Street & Maxwell 5th ed. 1998) 16 Deborah E. Anker, Law of Asylum in the United States (1999) 11 Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR 1979) 16 Human Rights First (former Layers Committee for Human Rights), “Safeguarding the Rights of Refugees under the Exclusion Clauses: Summary Findings of the Project,” International Journal of Refugee Law, Special Supplementary Issue (2000) 20 James C. Hathaway, The Law of Refugee Status (rev. ed. 1998) 10 James C. Hathaway, The Rights of Refugees Under International Law (Cambridge Univ. Press 2005) 24 Paul Weis, The Refugee Convention, 1951: The Travaux Preparatoires Analysed with a Commentary by Dr. Paul Weis (Cambridge Univ. Press 1995) 24 Restatement (Third) of the Law of Foreign Relations ? 114 (1987) 10, 12 Sir Elihu Lauterpacht & Daniel Bethlehem, The Scope and Content of the Principle of Non-refoulement, Opinion (UNHCR June 20, 2001) 28 Sir Elihu Lauterpacht & Daniel Bethlehem, The Scope and Content of the Principle of Non-refoulement (UNHCR Feb. 2003) 23 Statute of the International Court of Justice, 59 Stat. 1031 (1945) 15 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331; 8 I.L.M. 679 (1969) 16, 19 Wayne R. LeFave & Jerold H. Israel, Criminal Procedure (2d ed. 1992) 27 STATEMENT OF INTEREST The Harvard Immigration and Refugee Clinic (“HIRC”) is a clinical program of Harvard Law School, operated in collaboration with Greater Boston Legal Services. HIRC represents victims of human rights abuses in applying for U.S. refugee and related protections. Its Women Refugees Project, an internationally recognized program, does groundbreaking work on women's international human rights and political asylum claims. HIRC has authored numerous federal court briefs on key issues of asylum protection, and written extensively in the area. Its faculty director, Deborah Anker, has written the leading treatise, Law of Asylum in the United States. HIRC has an interest in correct development and application of the law in the area of domestic and international refugee protection. Human Rights First has worked since 1978 to protect and promote fundamental human rights and to ensure protection of the rights of refugees. The organization, which also operates one of the largest and most successful pro bono asylum representation programs in the country, bases its refugee protection work on the international standards of the 1951 Convention Relating to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees, and other international human rights instruments, and advocates adherence to these standards in U.S. law and policy. The Hebrew Immigrant Aid Society, the oldest international migration and refugee resettlement agency in the U.S. and the migration arm of the organized American Jewish community, advocates on behalf of refugees, asylum seekers, and immigrants, and for a strong United States government policy to offer safe haven to victims of persecution. Kurdish Human Rights Watch, Inc. is a human rights non-governmental organization with community-based affiliates that is dedicated to assisting people with limited resources and accessibility to achieve self-sufficiency and greater integration in their communities and overall society. The Washington Defender Association's Immigration Project's mission is to defend and advance the rights of non-citizens within the criminal justice system, non- citizens facing the immigration consequences of crimes, and non-citizens facing the detrimental impacts of selective state and federal enforcement policies post-9/11. The Jesuit Refugee Service USA, in conjunction with Jesuit refugee agencies worldwide, is committed to serve and defend the cause of refugees, and so has a vested interest in the parameters of laws, regulations, and jurisprudence that place refugees, asylees, and migrants at risk. The Lutheran Immigration and Refugee Service has been the U.S. Lutheran expression of service to refugees and migrants in America since 1939. Jacqueline Bhabha is the Jeremiah Smith, Jr. Lecturer at Law and Executive Director of the University Committee on Human Rights Studies, Harvard University. Heather MacKenzie is a private immigration lawyer and Senior Lecturing Fellow, Duke University School of Law. Deborah M. Weissman is Professor of Law and Director of Clinical Programs, University of North Carolina School of Law. Shoba Sivaprasad Wadhia is a private immigration attorney and Adjunct Professor of Law at Washington College of Law, American University. Natsu Taylor Saito is Professor of Immigration and International Human Rights Law, Georgia State University. Lynne R. Feldman is Adjunct Professor, University of Illinois Law School, and a partner with Erwin, Martinkus, and Cole, Ltd., concentrating in immigration and naturalization matters. David B. Thronson is Associate Professor of Law and Immigration Clinic Co-Director, Boyd School of Law at University of Las Vegas. Anna Marie Gallagher is an international refugee and migration lawyer, a consultant to the Jesuit Refugee Service, and the author of the Immigration Law Service 2d, Thomson West's immigration and nationality treatise. Joseph A. Vail is Associate Clinical Professor and Director of the Immigration Clinic, University of Houston Law Center. Ann Benson is the Directing Attorney for the Washington Defender Association's Immigration Project. Bridgette Carr is Assistant Clinical Professor of Law, Asylum and Immigrant Rights Law Clinic, Ave Maria School of Law. James P. Eyster is Assistant Clinical Professor of Law, Ave Maria Law School. Professors Harvey Kaplan and Maureen Sullivan are former adjunct professors at Northeastern School of Law. INTRODUCTION AND SUMMARY OF ARGUMENT At issue in this case is a new, unprecedented, and legally unsustainable interpretation by the Attorney General of a federal statute setting out the legal rights of refugees. The Attorney General's interpretation effectively would empower United States immigration authorities to remove a refugee to a country in which it has been established he or she would likely face persecution, based solely on the speculative assertion that the refugee may present a non-substantial danger to the United States were he or she permitted to remain. The Attorney General's interpretation is inconsistent with the plain language of the statute and with the longstanding and uniform construction (domestically and in other common law countries) of the international treaty that the federal statute was intended to implement. The Attorney General's interpretation was, furthermore, arrived at through an interpretive process that is at odds with basic principles of statutory interpretation of treaty-implementing statutes. Amici submit this brief to urge the Court to reject the Attorney General's interpretation. The provision at issue is Section 241(b)(3)(B)(iv) of the Immigration and Nationality Act (the “INA”), 8 U.S.C. ? 1231(b)(3)(B)(iv). That provision was enacted to conform domestic law to the Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 (“the Convention”), a 1951 treaty whose obligations bind the United States through the 1967 Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267 (“the 1967 Protocol”) to which the United States is a signatory, and through the domestic implementation of the Protocol. The Convention broadly protects the interests of refugees. Most important here, its central provision, known as the “non-refoulement” obligation, provides that a person whose life or freedom would be threatened on account of certain statuses or beliefs must not be removed from the country of refuge to a country where they would likely be exposed to persecution.