dissenting:
The plight of the Haitian plaintiffs in this case, whose desperation forces them onto the ocean in unseaworthy boats, escapes no one who considers the issues presently before us. I believe, however, that plaintiffs have already had a day in court on these issues and are collaterally estopped from seeking another. Even if they were not, plaintiffs cannot succeed in their challenge to the government’s interdiction and repatriation policy implemented pursuant to a May 23, 1992 Executive Order. See Exec. Order 12,807, 57 Fed.Reg. 23,133 (1992) (the “May 23, 1992 Order”). Plaintiffs rely on § 243(h) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1253(h) (Supp. 1992), and Article 33 of the United Nations Convention relating to the Status of Refugees, 189 U.N.T.S. 150 (1954) (“Article 33”). These provisions, however, bind the United States only with respect to aliens who have physically reached our territory. They grant no rights to plaintiffs in this case who have been or will be interdicted on the high seas. Whatever the merits of the policy of interdiction and return, as part of the United States response to the foreign policy crisis precipitated by the fall of the Haitian government in September, 1991 and the ensuing mass migration of Haitians in boats, I sit not as a policymaker but as a judge. I believe that the law does not support plaintiffs’ claim. I respectfully dissent from the opinion of the majority granting plaintiffs’ request for injunctive relief.
I. Collateral Estoppel
The first question on this appeal is whether Haitian Refugee Center v. Baker collaterally estops plaintiffs from raising certain issues. See Haitian Refugee Center, Inc. v. Baker, 789 F.Supp. 1552 (S.D.Fla.1991), rev’d, 949 F.2d 1109 (11th Cir.1991) (per curiam) (“HRC v. Baker I"), on remand, 789 F.Supp. 1579 (S.D.Fla.1991), rev’d, 953 F.2d 1498 (11th Cir.1992) (“HRC v. Baker II”), cert. denied, —U.S. -, 112 S.Ct. 1245, 117 L.Ed.2d 477 (1992). “Under the doctrine of collateral estoppel ... the judgment in [a] prior suit [between the parties or their privies] precludes relitigation of issues actually litigated and necessary to the outcome of the first action.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649 n. 5, 58 L.Ed.2d 552 (1979). “Once a party has fought out a matter in litigation with another party, he cannot later renew that duel.” Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 598, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948).
Collateral estoppel applies to class actions. Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 874, 104 S.Ct. 2794, 2798, 81 L.Ed.2d 718 (1984). Indeed, the important-judicial interests in consisten*1370cy, finality and economy that underlie the doctrine, see Parklane Hosiery, 439 U.S. at 326, 99 S.Ct. at 649; 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4416 at 138-39 (1981) (“Wright & Miller”), apply with particular force in the class action setting. “The policy behind the class action device is, of course, to facilitate the final determination of numerous claims in one suit. This policy is not furthered by allowing subsequent collateral attacks by class members.” Garcia v. Board of Ed., Sch. Dist. No. 1, 573 F.2d 676, 679 (10th Cir.1978). Moreover, the government may well have relied on HRC v. Baker in instituting the major policy initiative set forth in the May 23, 1992 Order. This further accentuates the need for consistency and finality.
A. Plaintiffs are collaterally estopped.
Collateral estoppel “prevents the parties’ relitigation of an issue that was (a) raised, (b) litigated, and (c) actually decided by a judgment in their prior proceeding.” Prime Management Co., Inc. v. Steinegger, 904 F.2d 811, 816 (2d Cir.1990). The HRC v. Baker judgment meets all three criteria. In HRC v. Baker, as in the current case, a class of Haitians sued officials of the United States government which, pursuant to Executive Order 12,324, 46 Fed.Reg. 48,109 (Sept. 29, 1991), reprinted in 8 U.S.C.A. § 1182 (West Supp.1992), was “screening” interdictees to determine their refugee status. The HRC v. Baker plaintiffs claimed that the government’s procedures did not accord them the full screening rights to which they were entitled under law. Pursuant to this claim, they argued that IN A § 243(h) extends extraterri-torially, Article 33 is self-executing, and that the Administrative Procedure Act accords them judicial review. The Eleventh Circuit, in upholding the government’s limited screening procedures, decided each of these issues in the government’s favor. See HRC v. Baker I, 949 F.2d at 1110; HRC v. Baker II, 953 F.2d at 1505-1506, 1509-10. These issues, which are present in the current case, were therefore “raised,” “litigated” and “actually decided” in HRC v. Baker, and collateral estoppel should apply. See Prime Management Co., 904 F.2d at 816. My colleagues, however, do not accept this position and I address each of their concerns in turn.
B. Is the present class distinct from the HRC v. Baker class?
To begin with, the majority concludes that the two classes are different: “We do not believe that any of the sub-groups of plaintiffs could fairly be characterized as a party to the Florida action; thus, the issues they present to us are not barred by collateral estoppel.” Majority Op. at 1355. I do not agree.
The HRC v. Baker class, as certified, consisted of:
all Haitian aliens who are currently detained or who in the future will be detained on U.S. Coast Guard Cutters or at Guantanamo Naval base who were interdicted on the high seas pursuant to the United States Interdiction Program and who are being denied First Amendment and procedural rights.
In the present case, the district court certified a class of “all Haitian citizens who have been or will be screened in.” Since, under the interdiction policy, a plaintiff must be detained before he or she is screened in, it follows that the class of all those “who have been or will be screened in” is wholly contained within the class of all those “who are currently detained or will in the future be detained.” The present class thus fits neatly within the HRC v. Baker class.
The majority, however, focuses on the terms “United States Interdiction Program.” The panel states that the present plaintiffs “have been or will be interdicted pursuant to a different interdiction program. The one at issue in HRC v. Baker was a program of preliminary screening before return; the program put in place by the Kennebunkport Order is one of summary return without screening.” The majority summarily concludes that “[t]his is a change sufficient to avoid the class definition in HRC v. Baker.” Majority Op. at 1355.
*1371I cannot accept this artificial distinction. To begin with the obvious, it seems to me that the terms “United States Interdiction Program” refer to the policy under which plaintiffs were interdicted and not the screening policy to which they were later subject. The term “interdiction program,” as it is used elsewhere in the HRC v. Baker plaintiffs’ complaint, is consistent with this reading. See Second Amended Complaint, HRC v. Baker, 789 F.Supp. 1552 (No. 91-2653-Civ), If 2 (“Under an ‘interdiction program,’ the Coast Guard and the Immigration and Naturalization Service (‘INS’) intercept vessels on the high seas believed to be carrying Haitian aliens, many of whom meet the standard for political asylum and who seek refuge in our country.”). Moreover, the majority neglects to mention that the two Executive Orders, which purportedly create two entirely separate programs, were issued pursuant to a single Proclamation dated September 29, 1981 and entitled “High Seas Interdiction of Illegal Aliens.” Proclamation No. 4865, 46 Fed.Reg. 48,107 (1981), reprinted in 8 U.S.C.A. § 1182 (West Supp.1992). Í read “United States Interdiction Program” to refer to the unitary program undertaken pursuant to Proclamation 4865. The HRC v. Baker complaint bears out this reading. See Second Amended Complaint, HRC v. Baker, 789 F.Supp. 1552 (No. 91-2653-Civ), 1132 (“On September 29, 1981 the President issued Proclamation 4865 ... which announced a program of ‘interdiction: on the high seas of vessels transporting aliens.’ ”). The government’s interdiction policy, which has continued unabated both before and after the May 23, 1992 Order, thus constitutes one program, not two.
Even if I could distinguish between a pre- and a post-May 23, 1992 “United States Interdiction Program,” I would not find this distinction “sufficient to avoid the class definition in HRC v. Baker.” Majority Op. at 1355. Where the parties are in all material respects the same and stand in an identical position vis-a-vis the issues, a purely formal distinction in the naming of the class will not enable a party to avoid issue preclusion. “Where the issues in separate suits are the same, the fact that the parties are not precisely identical is not necessarily fatal. As stated in Chicago, R.I. & P. Ry. Co. v. Shendel, 270 U.S. 611, 620, 46 S.Ct. 420, 423, 70 L.Ed. 757 (1926), ‘Identity of parties is not a mere matter of form, but of substance. Parties nominally the same may be, in legal effect, different ... and parties nominally different may be, in legal effect, the same.’ ” Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402, 60 S.Ct. 907, 916, 84 L.Ed. 1263 (1940); see also St. Louis Typographical Union v. Herald Company, 402 F.2d 553, 556 (8th Cir.1968). In another formulation of this principle, it has been stated that a party is “privy” to another, and hence bound by issue preclusion, if he or she is “so identified in interest with a party to former litigation that he represents precisely the same legal right in respect to the subject matter involved.” Jefferson School of Social Science v. Subversive Activities Control Bd., 331 F.2d 76, 83 (D.C.Cir.1963) (citing cases); see also Donovan v. Estate of Fitzsimmons, 778 F.2d 298, 301 (7th Cir.1985); Gill and Duffus Serv., Inc. v. A.M. Nural Islam, 675 F.2d 404, 405 n. 3 (D.C.Cir.1982); United States v. Truckee-Carson Irrigation Dist., 649 F.2d 1286, 1303 (9th Cir.1981); Southwest Airlines Co. v. Texas Int’l Airlines, 546 F.2d 84, 95 & n. 38 (5th Cir.1977), cert. denied, 434 U.S. 832, 98 S.Ct. 117, 54 L.Ed.2d 93 (1977).
These principles require issue preclusion in the present case. The issues before us — the scope of INA § 243(h); the self-executing nature of Article 33; and judicial review under the APA — are identical to those before the HRC v. Baker court. Moreover, as a practical matter, the only asserted difference between the classes is that the HRC v. Baker class received some minimal screening rights prior to return, whereas the current plaintiffs receive none. The issues with which we are concerned, however, do not in any way turn on the existence or non-existence of a minimal screening. Nor does the minimal screening granted the HRC v. Baker plaintiffs have any bearing on the parties’ incentive to litigate the issues. Thus, both classes stand in precisely the same legal position *1372and assert the same legal interests with respect to the issues involved. Whether or not the identity of the parties varies slightly in form, it is the same in substance. Sunshine Anthracite Coal, 310 U.S. at 402, 60 S.Ct. at 916. I therefore conclude that collateral estoppel applies. Cf. Montana v. United States, 440 U.S. 147, 159-61, 99 S.Ct. 970, 976-77, 59 L.Ed.2d 210 (1979) (issue preclusion applies even where facts have changed if prior judgment not premised on those facts).
C. Have There Been Intervening Changes in the Legal Context?
The majority, without further explanation, concludes that “the Kennebunkport Order represents ‘an intervening change in the applicable legal context’ ” which renders issue preclusion inapplicable. Majority Op. at 1356. I believe that the panel opinion misapplies this exception to issue preclusion.
Section 28(2)(b) of the Restatement (Second) of Judgments (1982) states that relit-igation of an issue is not precluded where “a new determination is warranted in order to take account of an intervening change in the applicable legal context_” The paradigmatic case, as presented in the Restatement, is that of a taxpayer held liable for tax under a certain interpretation of the law, where that interpretation is later abandoned in favor of another which would not require liability. If, after this.“intervening change,” the taxpayer once again challenges his liability, the Restatement advises that issue preclusion should not apply so that “the taxpayer will be treated in those years in the same way as other taxpay-ers_” Restatement (Second) of Judgments, § 28 cmt. c (1982). See also Commissioner v. Sunnen, 333 U.S. 591, 599-600, 68 S.Ct. 715, 720, 92 L.Ed. 898 (1948); 18 Wright & Miller § 4425 at 259-60.
The “intervening change” exception protects a party from being bound by a prior litigation where the legal grounds upon which that prior litigation was resolved have changed during the intervening period. In the present case, while the May 23, 1992 order no doubt constitutes a significant change in the lives of those affected by it, it has no bearing on the merits of the legal issues decided in HRC v. Baker and cannot constitute an “intervening change” in the law upon which that decision was grounded. Thus, the May 23,1992 Order is not an “intervening change in the applicable legal context,” Restatement (Second) of Judgments § 28(2)(b) (emphasis added), and does not enable plaintiffs to avoid issue preclusion.
D. Would Issue Preclusion Result in Inequitable Administration of the Laws?
Finally, the majority concludes that a new determination of the issues is necessary “to avoid inequitable administration of the laws.” Restatement (Second) of Judgments § 28(2)(b) (1982). The panel believes that the Supreme Court may have premised its denial of certiorari in HRC v. Baker on the government’s representation that it would bring sereened-in individuals to the United States for further asylum proceedings. The government later deviated from this representation by holding second interviews at Guantanamo Bay for Haitians with communicable disease, such as the HIV virus, see Haitian Centers Council, Inc. v. McNary, Nos. 92-6090, 92-6104, slip op. 4371, 4382, 1326 F.2d 1332-1333 (2d Cir. June 10, 1992), and by inadvertently returning some screened-in Haitians to Haiti. The panel also makes the assertion, which I find unwarranted, that the May 23, 1992 Order further violated this representation by “permitt[ing] a policy, subsequently implemented, of no screening whatsoever.” Majority Op. at 1357. The panel concludes that, under these circumstances, application of collateral estoppel would inequitably deny plaintiffs the opportunity for Supreme Court review.
One problem with this argument is that plaintiffs are not entitled to certiorari, which is granted on a discretionary basis. But even if the argument were that the government had inequitably dampened plaintiffs’ chances of attaining Supreme Court review, it seems to me that the proper redress is to be found in the Supreme *1373Court, not this one. Plaintiffs have no cause to argue that this court should fail to apply collateral estoppel. After all, there is no dispute that they received full appellate court review in HRC v. Baker. Their argument must be that they were denied a full opportunity to gain Supreme Court review on the merits, and that that Court, in deciding whether to hear an appeal from our collateral estoppel ruling, should, for reasons of equity, take the case up on the merits as well. Equity does not require that we hesitate to apply collateral estop-pel. In sum, I believe that the HRC v. Baker litigation operates as collateral es-toppel with respect to the following issues: (1) whether INA § 243(h) applies extraterri-torially, see HRC v. Baker II, 953 F.2d at 1509-10; (2) whether Article 33 is self-executing, see HRC v. Baker I, 949 F.2d at 1110; and (3) whether the Administrative Procedure Act gives plaintiffs a right to judicial review, see HRC v. Baker II, 953 F.2d at 1503-1506. The HRC v. Baker court decided all three issues against plaintiffs.
II. The Merits.
The majority holds that section 243(h)(1) of the Immigration and Nationality Act and Article 33 of the Convention relating to the Status of Refugees support plaintiffs’ request for injunctive relief. I believe that these provisions do not apply to aliens on the high seas. Thus, even if HRC v. Baker did not collaterally estop plaintiffs, I would dissent on the merits.
A. Ambiguity in § 243(h)(1).
Prior to 1980, INA § 243(h), 8 U.S.C.A. 1253(h) (1970), read:
Withholding of deportation
(h) The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems to be necessary for such reason.
The Refugee Act of 1980, Pub.L. No. 96-212, 94 Stat. 102 (1980), amended the provision to read, in pertinent part, as follows:
(h) Withholding of deportation or return
(1) The Attorney General shall not deport or return any alien (other than an alien described in section 1251(a)(4)(D) of this title) to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.
8 U.S.C. § 1253(h) (Supp.1992).
The Supreme Court has. pointed out that the 1980 amendments effected three important changes in § 243(h):
The amendment (1) substituted mandatory language for what was previously a grant of discretionary authority to the Attorney General to withhold deportation after making the required finding; (2) substituted a requirement that the Attorney General determine that the ‘alien’s life or freedom would be threatened’ for the previous requirement that the alien “would be subject to persecution,” and (3) broadened the relevant causes of persecution from reasons of “race, religion or political opinion” to encompass “nationality” and “membership in a particular social group” as well.
INS v. Stevic, 467 U.S. 407, 421 & n. 15, 104 S.Ct. 2489, 2496 & n. 15, 81 L.Ed.2d 321 (1984).
The panel believes that the plain language of the provision effects a fourth major change, not noted by the Supreme Court: extension of the provision’s reach beyond United States territory. Prior to the 1980 amendments, INA § 243(h) applied only to those in deportation proceedings who were “within the United States.” See Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958). The panel, however, concludes that the Refugee Act’s addition of the words “or return,” and its deletion of the phrase “within the United States,” make § 243(h)(1) applicable to aliens outside the territorial United States. The majority believes that the *1374plain language unambiguously supports this reading thereby foreclosing review of the legislative history. See Majority Op. at 1358, 1361-1362.
I find the plain language ambiguous. While the majority correctly states that the § 243(h)(1) term “any alien,” as defined at 8 U.S.C. § 1101(a)(3) (1988), contains no geographic restrictions, Majority Op. at 1358, these words do not require the majority’s position. Congress used the same term “any alien” in § 243(h) before the 1980 amendments where, at least since the 1958 Barber case, there has been no question as to its non-extraterritorial application. Moreover, § 243(h)(1), as amended in 1980, states that “[t]he Attorney General shall not deport ... any alien,” 8 U.S.C. § 1253(h)(1) (emphasis added). Yet no one could seriously contend (and the majority does not contend) that § 243(h)(1) proscribes the “deportation” of aliens on the high seas. As I shall have occasion to explain below, an alien can only be “deported,” in the technical sense of that term, from United States territory. See infra at 1357-1358. The term “any alien” cannot have a different meaning in § 243(h)(1) depending upon whether it is the object of the verb “deport” or “return”. The key question, and to me the only question of statutory interpretation necessary to decide this case, therefore, is whether § 243(h)(1) similarly prohibits “return” only from United States territory. If the term “return” does contain such a limitation, then the words “any alien” cannot alter it.
The majority acknowledges, as it has to, that the statute does not define where § 243(h)(1) prohibits “return” from. The panel concludes, however, that “what is important is the place ‘to’ which, not ‘from’ which, the refugee is returned.” Majority Op. at 1362. This reasoning fails on two grounds. First, “our immigration laws have long made a distinction” between those aliens within our territory, and those outside of it. Barber, 357 U.S. at 187, 78 S.Ct. at 1073. In light of this history, the majority errs by dismissing such distinctions as not “important”. Secondly, the majority’s approach flies in the face of the well-established principle that where the statute is silent on a key interpretive issue “we must look past the text to ... [the] legislative history.” H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 2900, 106 L.Ed.2d 195 (1989). Congress’ silence as to the location from which § 243(h)(1) prohibits return thus requires that we consult the legislative history.
Even if the plain language did unambiguously support plaintiffs’ position I would find that “there is a “clearly expressed legislative intention’ contrary to that [plain] language.” United States v. James, 478 U.S. 597, 606, 106 S.Ct. 3116, 3122, 92 L.Ed.2d 483 (1986). Under either rationale, I believe that examination of the legislative history is necessary. I turn now to that task.
B. The legislative history clarifies the word “return”.
The Refugee Act of 1980 did extend the scope of INA § 243(h), but not as broadly as the majority supposes. Briefly stated, the legislative history demonstrates that Congress intended, by means of the word “return,” to expand the provision to encompass “excludable,” as well “deportable,” aliens. Excludable aliens, like deportables, are “physically present in the United States.” Li v. Greene, 767 F.Supp. 1087, 1088 (1991). Thus, while Congress did broaden the provision’s reach it did not expand it to aliens physically outside of United States territory. Section 243(h)(1) as amended does not cover aliens interdicted on the high seas such as the plaintiffs in this case who are neither deportable nor excludable.
1. The terminology of immigration law.
A proper understanding of § 243(h)(1) requires some familiarity with the concepts “deportation” and “exclusion” as used in immigration law. The basic distinction is straightforward. An alien who has “entered” the United States is subject to deportation proceedings. An alien “who is physically present in the United States, without making a legal entry,” however, is *1375subject to exclusion proceedings. Li v. Greene, 767 F.Supp. 1087, 1088 (1991); see also, e.g., Leng May Ma v. Barber, 357 U.S. 185, 187-88, 78 S.Ct. 1072, 1073-74, 2 L.Ed.2d 1246 (1958) (exclusion proceedings appropriate for alien who has not made legal entry even “though the alien is physically within the United States”); Bertrand v. Sava, 684 F.2d 204, 205 n. 1 (2d Cir.1982) (defining an excludable alien as one “who has reached our border but has not been formally permitted to enter the country. Even though physically present in the country, he is ‘treated as if stopped at the border.’ ”) (citation omitted); Ledesma-Valdes v. Sava, 604 F.Supp. 675, 680 (S.D.N.Y.1985) (“Excludees, although physically present in the United States, are ‘treated as if stopped at the border.’ ”). An alien who has not yet physically entered United States territory is, of course, subject neither to deportation nor exclusion proceedings.
To complicate matters a bit, deportation is sometimes referred to as “expulsion” and has occasionally been used loosely to encompass both expulsion and exclusion proceedings. Use of the term deportation to encompass exclusion, however, “reflects none of the technical gloss accompanying its use as a word of art....” Barber, 357 U.S. at 187, 78 S.Ct. at 1073; see also Bertrand, 684 F.2d at 205 n. 1. For present purposes, we properly distinguish between “deportation” and “exclusion” as these different concepts are recognized in immigration law.
“Entry,” the status which renders an alien subject to deportation as opposed to exclusion, involves:
(1) a crossing into the territorial limits of the United States, i.e. physical presence; 2(a) an inspection and admission by an immigration officer or (b) actual and intentional evasion of inspection at the nearest inspection point; and (3) freedom from official restraint.
Correa v. Thornburgh, 901 F.2d 1166, 1171 (2d Cir.1990) (quoting Matter of Ching and Chen, Interim Decision 2984, at 3 (BIA 1984)). Thus, in practical terms, if the government wishes to remove an alien whom it has inspected and admitted at the border, or who has evaded inspection, and who is in United States territory “free[] from official restraint,” id., it may do so only through deportation proceedings. Where the government has detained the alien at a border crossing, an airport or on a ship, physically within United States territory or territorial waters but without an “entry” having been effected, it may remove him or her pursuant to an exclusion hearing. This is true even where the Attorney General has “paroled” a detainee into the country. See 8 U.S.C. § 1182(d)(5) (Supp. II 1990). In the eyes of the law, such a person is deemed “stopped at the border,” Shaughnessy v. Mezei, 345 U.S. 206, 215, 73 S.Ct. 625, 631, 97 L.Ed. 956 (1953), and is not “within the United States,” Barber, 357 U.S. at 189, 78 S.Ct. at 1074, even though physically present. The distinction is important because, as we have noted, “[djeportation proceedings are generally more favorable to the alien than exclusion proceedings.” Correa, 901 F.2d at 1171 n. 5; see also Maldonado-Sandoval v. INS, 518 F.2d 278, 280 n. 3 (9th Cir.1975).
2. The 1980 Amendments to INA § 243(h).
Prior to 1980, § 243(h) protected a refugee, in the Attorney General’s discretion, only against “deportation ... to any country in which in his opinion the alien would be subject to persecution_” 8 U.S.C.A. § 1253(h) (1970). In Leng May Ma v. Barber, 357 U.S. 185, 187-89, 78 S.Ct. 1072, 1074-75, 2 L.Ed.2d 1246 (1958), the Supreme Court accordingly held that § 243(h) covered only deportable, and not excluda-ble, aliens. See. also INS v. Stevie, 467 U.S. 407, 415, 104 S.Ct. 2489, 2493, 81 L.Ed.2d 321 (1984).
The Refugee Act of 1980 opened up § 243(h) to excludables. The House Report explains quite clearly that “section 203(e) [of the Refugee Act] amends section 243(h) of the Act, relating to withholding of deportation, to require (with some exceptions) the Attorney General to withhold deportation of aliens who qualify as refugees and who are in exclusion as well as deportation proceedings.” H.R.Rep. No. 608, *137696th Cong., 1st Sess., 30 (1979) (emphasis added). This piece of legislative history goes a long way towards answering the interpretive question before us. It demonstrates that Congress intended to broaden § 243(h)(1) to apply to excludables, but did not extend the provision to aliens outside United States territory.
In addition, the reference to excludables clarifies the meaning of “return.” To bring excludables within the terms of § 243(h) Congress had to change the statutory language in two ways. First, it had to delete the words “within the United States” which, the Supreme Court had held, covered only deportables. See Barber, 357 U.S. at 188, 78 S.Ct. at 1074. Secondly, it had to modify the word “deportation” since this term, too, limited the scope of § 243(h) to deportables, not ex-cludables. Id. at 187-90, 78 S.Ct. at 1074-75. To signify the intended broader scope Congress therefore added the words: “or return.” Statutes and case law had previously used “return” in this manner. See 8 U.S.C.A. § 1182(a)(26) (1970) (discussing “return [of excludable alien] to country from which he came”); 8 U.S.C.A. § 1182(d)(6) (1970) (“[t]he Attorney General shall prescribe conditions ... to control and regulate the admission- and return of ex-cludable aliens_”); Barber, 357 U.S. at 187, 78 S.Ct. at 1073 (describing “the return of excluded aliens from the country”); United States v. Murff, 176 F.Supp. 253, 256 & n. 13 (S.D.N.Y.1959) (“The return of aliens who seek and who are denied admission into the United States is governed by the exclusion provisions, whereas the deportation of aliens ... is governed by the expulsion provisions of the act.”). Thus, just as “deport” refers to deportables, Congress intended “return” to refer to exclud-ables.
The legislative history provides additional support for this reading. For example, Congress’ decision in the 1980 amendments to continue to address the provision to the “Attorney General,” 8 U.S.C. § 1253(h)(1) (Supp.1992), indicates that § 243(h)(1) as amended was to be applied to deportables and excludables, aliens over which the Attorney General had operational jurisdiction, and not to other refugees or potential refugees outside United States territory who might be encountered by other United States government personnel, be they Coast Guard, military, or the like.
Moreover, the IN A grants excludables and deportables the right to seek judicial review but does not provide review for aliens outside United States territory, see 8 U.S.C. §§ 1105a, 1157 (1988 & Supp. II 1990), and those outside United States territory will not likely gain review under the APA, see HRC v. Baker II, 953 F.2d at 1505-1507. It is unlikely that Congress would have granted rights under § 243(h)(1) to aliens outside the United States without providing them a clear means to enforce these rights. This further supports a limitation of § 243(h)(1) relief to excludables and deportables to whom judicial review is available.
The legislative history also suggests that the territorial reach of § 243(h)(1) is coextensive with § 208(a), a provision which establishes asylum procedures for “alien[s] physically present in the United States or at a land border or port of entry,” i.e. deportables and excludables. 8 U.S.C. § 1158(a) (Supp.1992). Under the heading “Asylum and Withholding of Deportation,” the House Report states that
Since 1968, the United States has been a party to the United Nations Refugee Protocol which incorporates the substance of the 1951 Convention of Refugees which seeks to insure fair and humane treatment for refugees within the territory of the contracting states_ The Committee Amendment conforms United States statutory law to our obligations under Article 33 [of the Convention] in two of its provisions: ... section 208 ... [and] section 243(h).
H.R. 608 at 17 (emphasis added). Thus, sections 208 and 243(h), respectively, meet the United States’ international obligation to provide asylum procedures for, and not to deport or return, “refugees within the territory of the contracting states.” Id. Case law, and a leading commentator, also read § 243(h)(1) as co-extensive with § 208(a). See HRC v. Baker, 789 F.Supp. at 1575 (citing INA § 208(a) for the propo*1377sition that plaintiffs claims under INA § 243(h) “must fail because the statutory rights and protections asserted are reserved, by the very terms of the statute, to aliens within the United States”); C. Gordon & S. Mailman, 1 Immigration Law and Procedure, § 1.03[6][a] at 1-33 (1991) (“[rjefugee status is available [pursuant to INA § 207] to individuals screened and selected outside the United States, while asylum [pursuant to INA § 208] and withholding of deportation [pursuant to INA § 243(h)] are remedies available to those who have already reached our shores or borders and wish to secure permission to stay.”)
C. Article 33 does not create an extraterritorial obligation.
Article 33 of the Convention relating to the Status of Refugees, 189 U.N.T.S. 150 (1954), which the United States ratified when it acceded to the 1967 Protocol relating to the Status of Refugees, 19 U.S.T. 6223 (“Protocol”), further supports the conclusion that Congress intended to limit § 243(h)(1) to deportables and excludables who are within United States territory.
The Supreme Court has stated that “if one thing is clear from the legislative history of ... the entire 1980 [Refugee] Act, it is that one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees.” INS v. Cardoza-Fonseca, 480 U.S. 421, 436, 107 S.Ct. 1207, 1215, 94 L.Ed.2d 434 (1987). Specifically, Congress intended § 243(h)(1), as amended, to be coextensive with Article 33 of the Convention. Plaintiffs concede this point, see Plaintiffs Brief at 14 (“Congress intended § 243(h) to have the same meaning as Article 33 of the Refugee Convention”), the legislative history overwhelmingly supports it, see S.Rep. No. 96-256 at 20, reprinted in 1980 U.S.C.C.A.N. at 141, 161 (section 243(h) “is based directly upon the language of the Protocol and it is intended that the provision be construed consistent with the Protocol”); H.R. 608 at 17 (“[t]he Committee Amendment [to § 243(h)] conforms United States statutory law to our obligations under Article 33”), and the Supreme Court has consistently taken this view, see INS v. Doherty, — U.S. -, 112 S.Ct. 719, 729, 116 L.Ed.2d 823 (1992) (Scalia, J., concurring); INS v. Stevie, 467 U.S. 407, 421, 104 S.Ct. 2489, 2496, 81 L.Ed.2d 321 (1984). Thus, if Article 33 extends only to aliens within the territory of a contracting state, as I believe it does, this powerfully supports a parallel reading of § 243(h)(1). In turning to Article 33, I also address plaintiffs’ (and the majority’s) erroneous contention that Article 33 itself creates extraterritorial obligations for the United States. See Majority Op. at 1362-1367.
Article 33 of the Convention reads as follows:
Article 33 — Prohibition of expulsion or return {“refoulement”)
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever 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.
The majority’s “plain language” approach to the word “return” as used in Article 33 treads the same path as its analysis of INA § 243(h)(1), see Majority Op. at 1363-1364, and leaves the same unresolved question as to where the Article prohibits “return” from. Unlike INA § 243(h)(1), however, Article 33 includes next to the word “return” the explanatory bracketed French term “refouler ”. Refouler is not susceptible to a plain language analysis for, as the majority points out, French dictionaries provide conflicting definitions. Majority Op. at 1363. The majority itself fails to settle on a meaning for this word, concluding that it is “ambiguous.” Majority Op. at 1365. We must, therefore, turn to the legislative history of Article 33 in order to determine the meaning of “refouler,” and consequently of “return”.
The Netherlands delegate, speaking at the second and final reading of the Draft *1378Convention, graciously provides a precise definition:
Baron van Boetzelaer (Netherlands) recalled that at the first reading the Swiss representative had expressed the opinion that the word “expulsion” related to a refugee already admitted into a country, whereas the word “return” (“refoulement”) related to a refugee already within the territory but not yet resident there. According to that interpretation, article 28 would’ not have involved any obligations in the possible case of mass migrations across frontiers — or of attempted mass migrations.
He wished to revert to that point, because the Netherlands Government attached very great importance to the scope of the provision now contained in article 33. The Netherlands could not accept any legal obligations in respect of large groups of refugees seeking access to its territory.
At the first reading the representatives of Belgium, the Federal Republic of Germany, Italy, the Netherlands and Sweden had supported the Swiss interpretation. From conversations he had since had with other representatives, he had gathered that the general consensus of opinion was in favour of the Swiss interpretation.
In order to dispel any possible ambiguity and to reassure his Government, he wished to have it placed on record that the Conference was in agreement with the interpretation that the possibility of mass migrations across frontiers or of attempted mass migrations was not covered by article 33.
There being no objection, the PRESIDENT ruled that the interpretation given by the Netherlands representative should be placed on record.
Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Summary Record of the Thirty-Fifth Meeting, U.S. Doc. A/Conf. 2/SR.35 at 30 (1951) (emphasis added).
The Netherlands delegate’s comments unambiguously restrict the terms “expel” and “return (‘refouler’)” to aliens physically within the territory of the contracting state. Moreover, the definition of “return (‘refouler ’)” as “already within the territory but not yet resident there” appears to correspond to American usage of the term “excludable” which is “synonymous with non-resident ... [and] describe[s] the alien who has reached our border but has not been formally permitted to enter the country.” Bertrand, 684 F'.2d at 205 n. 1 (emphasis added)..
While the majority cannot point to any lack of clarity in the statement of the Netherlands delegate, it finds ambiguous the “ruling” of the Conference President “that the interpretation given by the Netherlands’s representative should be placed on the record.” U.S. Doe. A/Conf. 2/SR.35 at 30. Judge Edwards, concurring in Haitian Refugee Center v. Gracey, 809 F.2d 794, 840 (D.C.Cir.1987), has found that this ruling constituted an “agree[ment]” among the delegates. While acknowledging Judge Edward’s “thoughtful and scholarly concurrence,” the majority concludes that it is “an equally-fair reading to see this passage as simply recording the views of a dissenting member.” Majority Op. at 1365.
I am in accord with Judge Edwards. The President of the Conference premised his ruling on “[t]here being no objection,” a finding which alone would indicate agreement. Additionally, the Conference recorded the Netherlands delegate’s “interpretation,” not his “views.” Indeed, I cannot fathom why a member would seek to have his “views” formally recorded since that is accomplished by the transcript itself. Thus, I conclude with Judge Edwards that the Conference formally recorded the delegate’s “interpretation” so as to show its agreement.
The discussion which immediately followed the President’s ruling clears up any residual ambiguity:
Mr. Hoare (United Kingdom) remarked that the Style Committee had considered that the word “return” was the nearest equivalent in English to the French term “refoulement’. He assumed that the word “return” as used in the English text had no wider meaning.
*1379The President suggested that m accordance with the practice followed in previous Conventions, the French word “refoulement” (“refouler” in verbal uses) should be included in brackets and between inverted commas after the English word “return” wherever the latter occurred in the text.
He further suggested that the French text of paragraph 1 should refer to refugees in the singular....
The two suggestions made by the President were adopted unanimously.
U.N. Doc. A/Conf. 2/SR.35 at 30-31 (emphasis added).
These statements evidence the delegates’ unanimous agreement that “return {‘re-fouler’)” be limited to non-resident aliens within a contracting state’s territory. Only by reading Mr. Hoare’s “refouler ” as different from Baron van Boetzelaer’s can one escape this conclusion. Both, however, were attending the same conference, and Mr. Hoare, who spoke immediately following the Baron, expressed no disagreement with his interpretation. Thus, there is no basis to suggest that they were interpreting the word differently. This negotiating history is to me unambiguous. Moreover it is, to my knowledge, the only document which directly explains the placement of “refouler” in Article 33; consequently, it is the linch-pin to understanding the word “return” as utilized in that provision. ■
Article 40 of the Convention, incorporated by reference in Article 7.4 of the Protocol, see Protocol, 19 U.S.T. at 6228, supports the same, limited reading of Article 33. Article 40, entitled “Territorial application clause,” provides that
(1) Any State may, at the time of signature, ratification or accession, declare that this Convention shall extend to all or any of the territories for the international relations of which it is responsible. Such a declaration shall take effect when the Convention enters into force for the State Concerned.
189 U.N.T.S. 150. Thus, pursuant to Article 40, the Convention does not automatically reach beyond a contracting state’s sovereign territory even to those other territories, such as colonies, which it administers. Nothing in Article 40 exempts Article 33 from this proviso. It follows that Article 33 does not, as the majority contends, extend automatically to aliens throughout the globe. I note parenthetically that the United States has taken no action pursuant to Article 40.
I conclude that Article 33, which plaintiffs concede to have the same territorial reach as § 243(h)(1), applies only to aliens physically within the territory of a given state. Most commentators adopt this view. See Aga Khan, Legal Problems Relating to Refugees and Displaced Persons, 149 Recuil Des Cours (Hague Academy of International Law) 287, 318 (1976) (only refugees “already within the territory of the Contracting State” may avail themselves of right to non-refoulement); Weis, The United Nations Declaration on Territorial Asylum, 7 Canadian Yearbook Int'l L., 92, 123-24 (1969) (adopting Netherlands delegate’s interpretation of “expel” and “return”); Note, The Right to Asylum Under United States Law, 80 Colum.L.Rev. 1125, 1126-27 (1980) (rights under Article 33 of the Convention “do[ ] not extend -to refugees outside the contracting country’s borders.”).
D. Congress has authorized the President’s policy.
Plaintiffs assert that even if the President’s actions do not contravene § 243(h)(1) and Article 33, they are nonetheless without legal authority. The government, in response, relies on INA §§ 212(f) and 215(a)(1), 8 U.S.C. §§ 1182(f), 1185(a)(1) (1988), which read as follows:
§ 1182(f) [INA § 212(f) ] Suspension of entry or imposition of restrictions by President. Whenever the President finds that the entry of any aliens or of any class of aliens would be detrimental to the United States, he may ... suspend the entry of all aliens ... or impose on the entry of aliens any restrictions he may deem appropriate.”
§ 1185(a)(1) [INA § 215(a)(1) ]. Travel Control of citizens and aliens
(a) Restrictions and prohibitions. Unless otherwise ordered by the President, *1380it shall be unlawful — (1) for any alien to depart from or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe _
The majority dismisses these provisions on the grounds that the President’s authority to regulate “entry” does not permit him to “return” refugees to Haiti. Majority Op. at 1366. The majority’s attempt to distinguish between entry restrictions and repatriation, however, does not withstand scrutiny. In the context of this case the two policies are inextricably intertwined. As the record makes clear, most Haitians seeking entry set sail on the 600 mile ocean voyage in overcrowded, unseaworthy craft with a demonstrable risk to life (evidenced in one case by a May 17, 1992 capsizing with a loss of half of the boat’s forty passengers). The President cannot simply draw a “line in the sea” over which no Haitian vessel may cross. To do so would risk additional sea disasters with the attendant loss of life. Faced with this difficult policy choice which, I note, courts are without competency to evaluate, Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 436, 92 L.Ed. 568 (1948), the President has determined that the only feasible way to regulate “entry” is to promptly interdict and repatriate Haitian vessels. Congress’ broad delegation of the power to “impose on the entry of aliens any restrictions [the President] may deem appropriate,” 8 U.S.C. § 1182(f) (1988), and to establish “reasonable ... orders” regulating entry, 8 U.S.C. § 1185(a)(1) (1988), easily encompass this policy choice.
Insofar as the majority relies on the assertion that the government may be interdicting Haitians seeking entry to countries other than the United States, Majority Op. at 1367,1 note that this issue is not properly before our Court. As plaintiffs themselves state: “[t]his case ... [involves] defendants’ blanket decision to implement an immigration policy ... in massive disregard for [plaintiffs’] asylum claims.” Plaintiff’s Brief at 30 (emphasis added). The plaintiffs in this case are seeking asylum in, and thus, “entry” into, the United States. This litigation does not properly present the question of aliens seeking passage to other nations.
Accordingly, IN A § 212(f) and § 215(a)(1) fully authorize the challenged Presidential action. Even if Congress had not authorized the May 23, 1992 policy, I would find sufficient authority in the President’s inherent powers over immigration, see Knauffv. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 312, 94 L.Ed. 317 (1950), and foreign affairs, see United States v. Curtiss-Wrigkt Export Corp., 299 U.S. 304, 320, 57 S.Ct. 216, 221, 81 L.Ed. 255 (1936).
E. Conclusion.
The legislative history of § 243(h)(1), including as it must Article 33 and its negotiating history, clears up the textual ambiguities in this case and demonstrates conclusively that the United States’ duty of non-refoulement pertains only to deportable and excludable refugees physically present in its territory and does not reach those, such as plaintiffs, who are on the high seas. Thus, the INA does not prohibit the May 23, 1992 policy; rather, it authorizes it in §§ 212(f) and 215(a)(1). “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum for it includes all that he possesses in his own right plus all that Congress can delegate.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637, 72 S.Ct. 863, 871, 96 L.Ed. 1153 (1952) (Jackson, J., concurring). Faced with such combined Presidential and Congressional authority, I would deny plaintiffs’ request for injunctive relief.
I am strengthened in this conclusion by the well-established judicial reticence, in the absence of a clear legal mandate, to grant relief which would undermine the President’s authority in foreign affairs. See Dep’t of Navy v. Egan, 484 U.S. 518, 529-30, 108 S.Ct. 818, 825, 98 L.Ed.2d 918 (1988); Haig v. Agee, 453 U.S. 280, 290-92, 101 S.Ct. 2766, 2773-74, 69 L.Ed.2d 640 (1981); Chicago & Southern Airlines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 109-11, 68 S.Ct. 431, 435-36, 92 L.Ed. *1381568 (1948); see generally, United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315-22, 57 S.Ct. 216, 218-22, 81 L.Ed. 255 (1936). The interdiction and return policy embodied in the May 23, 1992 Order was not confined to an immigration crisis but was squarely in the foreign affairs arena. To be sure, the dramatic surge in Haitian migration following the September 30, 1991 coup that overthrew the democratically elected government of Bertrand Aris-tide and that led to 34,000 interdictions from October 1991 through May 1992 (as compared with 25,000 interdictions over the previous decade) precipitated an immigration crisis of substantial dimension. However, according to Under Secretary of State Kantor in a May, 1992 affidavit filed in this action, the massive migration outflow also gave the de facto Haitian government leverage against those nations who, like the United States, were pressing for a return to democracy in Haiti.
In a January 1992 affidavit filed in the HRC v. Baker litigation, Assistant Secretary of State Aronson cited “credible” reports that the de facto Haitian government “intend[ed] to encourage massive outmi-gration” in order to pressure the United States and the Organization of American States “into dropping their concerted efforts ... to restore constitutional democratic government in Haiti.” Thus, the May 23, 1992 Order was part of the United States’ response to a foreign policy crisis, and accordingly deserves “the utmost deference.” United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974).
Finally, while I do not rely on it because I see no need to do so in light of the clear purposes underlying the 1980 amendments to § 243(h)(1), I note that the presumption against extraterritorial application of domestic legislation also weighs against plaintiffs' claim. See EEOC v. Arabian Am. Oil Co., — U.S.-, 111 S.Ct. 1227, 1230, 113 L.Ed.2d 274 (1991).
I respectfully dissent.