3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.

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.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

In Kan Kam Lin v. Rinaldi, 361 F.Supp. 177 (1973), the United States District Court for the District of New Jersey held, on July 3, 1973, that the term "lawfully in their territory" in Article 32 of the Convention is coextensive with the orthodox theories of legal presence under United States immigration laws. Plaintiffs in this case were all Chinese alien seamen whose presence in the United States had been found by the Immigration and Naturalization Service to be unlawful. They were ordered to depart voluntarily and to be deported should they fail to leave voluntarily. They then sought asylum under the terms of the Protocol. Defendants, on behalf of the INS, argued that plaintiffs were not "refugees" within the meaning of the Convention and the Protocol, and that they were not "lawfully" in the United States as required by Article 32 of the Convention.

The Court said that it was "patently clear that, if the plaintiffs are not lawfully in the United States, they take nothing from the terms of the treaty." (at p. 183.) Plaintiffs argued that the terms of Article 32 cannot be defined as "lawfully in the territory pursuant to the immigration laws of that territory." They contended that such a construction would render the Protocol nugatory since, if an alien were in the country in accordance with the immigration laws, he would have no reason to attempt to avail himself of the benefits of the Protocol. The Court responded by stating that the "simple answer to this assertion, of course, is that individuals who are lawfully but temporarily present could apply for asylum under the terms of the Protocol." (at p. 184.) The Court cited the legislative history of the provision in Article 32, including a statement by the U.N. committee that drafted the Article which said that the term "lawfully within their territory" would "exclude a refugee who while lawfully admitted has overstayed the period for which he was admitted or was authorized to stay or who has violated any other condition

attached to his admission or stay." (at p. 186; see United Nations Doc. E/1618/Corr. 1, March 2, 1950.) The Court concluded as follows:

The Court has been cited to no authority, nor could it find any which would support a different construction of these terms. Furthermore, it is apparent that, should aliens be granted asylum on the basis of possible persecution with no regard to the legality of their entry, the present immigration laws and quotas imposed by this country would be devastatingly effected. For these reasons, then, it is the view of this Court that the terms "lawfully in the territory" contained in Article 32 of the Protocol and the Convention are coextensive with the orthodox theories of legal presence under the present immigration laws . . .

The Memorandum of Understanding on Hijacking of Aircraft and Vessels and Other Offenses (TIAS 7579; 24 UST 737; entered into force February 15, 1973) between the United States and the Republic of Cuba includes, in Article Fourth, a right of asylum provision. Article Fourth provides that the party whose territory is reached

may take into consideration any extenuating or mitigating circumstances in those cases in which the persons responsible for the acts were being sought for strictly political reasons and were in real and imminent danger of death without a viable alternative for leaving the country, provided there was no financial extortion or physical injury to the members of the crew, passengers, or other persons in connection with the hijacking.

See Chapter 8, § 3, infra, p. 311–312.

Secretary of State William P. Rogers, at a press briefing on February 15, 1973, gave the following analysis of the asylum provision:

what this Agreement does is to make it clear that hijackers of aircraft or vessels cannot escape the laws of our country and Cuba now has said the same thing: cannot escape the laws of Cuba-by claiming the right of asylum. This does not affect the right of asylum. The right of asylum continues to be a very sacred right and one that we will continue to honor.

What it does mean is that you cannot commit major crimes on the way to asylum. You can't endanger the lives of many

other people in order to reach the place of asylum. And if you do that, then you have to bear the consequences of the laws. ...

Department of State Press Release, No. 37, Feb. 15, 1973, p. 11. The Department of State Bulletin, Vol. LXVIII, No. 1758, Mar. 5, 1973, pp. 251-252.

At a hearing on the Agreement before the Subcommittee on Inter-American Affairs of the House Committee on Foreign Affairs, Robert A. Hurwitch, Deputy Assistant Secretary of State for Inter-American Affairs, said the following with regard to the asylum provision:

The fourth article provides for the exception for political asylum which I must say is narrowly constructed. That is, a person who is in imminent danger of death and has no alternate means of escaping to the other country than hijacking and does not commit any serious crime in the process of that hijacking may be accorded political asylum by the other party.

This is a much more narrow construction, much more in keeping if you like with the U.S. concept of hot pursuit with regard to political asylum than the more generally accepted and broader concept that is prevalent in Latin America.

This must be in the case of a person who is in imminent threat of death and has no alternative other than to hijack a plane or vessel and does not commit a serious crime in the process. This is a narrow series of conditions which must be fulfilled before the other party will consider according political asylum.

Hijacking Accord Between the United States and Cuba, Hearing before the Subcommittee on Inter-American Affairs of the Committee on Foreign Affairs, House of Representatives, 93d Cong., 1st Sess., Feb. 20, 1973, pp. 2-3.

In the case of Jhirad v. Ferrandina, 355 F. Supp. 1155 (1973), before the United States District Court, Southern District of New York, the petitioner sought a writ of habeas corpus to attack the jurisdiction of a United States Magistrate to determine the appropriateness of extraditing the petitioner to India. He had been charged in India with crime of Breach of Trust of a Public Servant, defined by the Indian Penal Code as occurring when ". . . whoever, being entrusted with property . . . dishonestly misappropriates or converts to his own use that property in violation of any direction of law. . . ." The District Court held that this was in essence the definition of embezzlement.

Article 3 of the 1931 treaty on extradition between the United States and Great Britain (TS 849; 47 Stat. 2122; entered into force June 24, 1935), held to be currently in force between the United States and India (see Chapter 2, § 2, supra, pp. 8-10), lists the extraditable offenses and includes larceny and embezzlement in clause 16 and fraudulent conversion in clause 17. With respect to whether the Indian crime of Breach of Trust of a Public Servant was an extraditable offense within the meaning of the 1931 treaty, the Court said the following:

The courts have set a standard of liberal interpretation of treaty language. As the Supreme Court said in Factor v. Laubenheimer, 290 U.S. 276, 54 S.Ct. 191, 78 L.Ed. 315 (1932), "extradition treaties are to be liberally, not strictly, construed." From the general lack of particularity and specificity of the crimes listed in Article Three, it is evident that the intention was to describe the crimes in the most general and inclusive terms. In light of this intention and the standard of interpretation set by the Supreme Court in the Factor case, the Court finds the crime charged is included within the ambit of clause 16 of the Treaty.

In Wright v. Henkel, 190 U.S. 40, 23 S.Ct. 781, 47 L.Ed. 948 (1903), the Supreme Court, while deciding whether an extraditable offense was stated, said:

"The general principle of international law is that in all cases of extradition the act done on account of which extradition is demanded must be considered a crime by both parties." 190 U.S. at 58, 23 S.Ct. at 785.

This apparently was the law until Factor v. Laubenheimer, supra, 290 U.S. 276, 54 S.Ct. 191, 78 L.Ed. 315. In that case the Court indicated that the question of whether the crime charged must be a crime in the asylum country was a matter of treaty interpretation. The Court went on to indicate that at most all that was necessary was that the offense charged was recognized by the jurisprudence of both countries. There is no requirement in Article Three of the Treaty that larceny or embezzlement be crimes in the asylum country. Indeed, the Treaty lists only one offense which must be a crime in both countries to be extraditable, and that is accessorial conduct of any kind. It follows, therefore, that the Treaty does not require that the crime charged be explicitly a crime in the place of asylum.

Even if it were necessary for extradition that there be mutual criminality, it seems quite clear that the acts alleged fall within the ambit of liability of § 155.05 of the New York Penal Law (McKinney's Consol. Laws, c. 40 1967) which makes a wrongful taking or withholding of property from its owner a crime. It specifically includes embezzlement, without regard to the status of the person committing such act. It seems clear

that the offense charged is within those listed as being extraditable.

In McGann v. U.S. Board of Parole, 356 F. Supp. 1060 (1973), the United States District Court for the Middle District of Pennsylvania held, on April 6, 1973, that the question whether or not a fugitive has been surrendered for an extraditable offense is an issue to be determined by the foreign court, and is not reviewable by a federal habeas corpus court.

The petitioner, a parolee who had been extradited from Jamaica, challenged his incarceration on the theory, inter alia, that he had been extradited for parole violation, a non-extraditable offense under the 1931 United States-United Kingdom extradition treaty (TS 849; 47 Stat. 2122; made applicable to Jamaica June 24, 1935). The Government contended that McGann's extradition was sought and obtained on the basis of his conviction for bank robbery, for which he had 2,950 days remaining to be served; and that he was committed in order to complete service of his sentence. Bank robbery is an extraditable offense under the treaty.

The Court said, in part:

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Whether or not Petitioner was extradited for an extraditable offense is an issue that presumably was decided by the Jamaican courts. In my view, the function of this Court is not to sit in review of a decision by the Jamaican courts where, as here, the extradition documents provided by the United States fully set forth the grounds upon which extradition was sought. The final decision as to the extraditable nature of the offense was a matter for the Jamaican authorities . . . This Court is bound by the existence of the extradition treaty to assume that the hearing afforded Petitioner in Jamaica was fair. (at p. 1062.)

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The Court also said that the decision of the Jamaican courts was "reasonable." The treaty contemplates, said the Court, that extradition will occur where the fugitive has been convicted of an extraditable crime, but has not yet been fully punished. Under the United States parole system, a parolee is not discharged from his sentence until the conditions of his parole have been fulfilled.