Dry Feet on an Old Bridge

by Roger Alford

A federal district court has issued an interesting decision on the status of Cuban refugees who made it to dry land on the coast of Florida. The question at issue in Movimiento Democracia v. Chertoff, 2006 WL 521558, was whether landing on the old Seven Mile Bridge in the Florida Keys constituted “arrival” in the United States within the meaning of the INA. The Coast Guard concluded that the old bridge was more like a buoy than terra firma and sent them packing. The case raises interesting questions of what constitutes arrival into the territory of the United States for purposes of asylum and refugee law.

Here is an excerpt:

It is undisputable that the Cubans landed on a portion of the old Seven Mile Bridge that is unconnected to land at either end. The Coast Guard reasoned … that this lack of connection makes the bridge and its pier more “analogous to a buoy moored to the bottom of a channel by chain and concrete in that the pier is [a] man-made structure installed in the water and affixed to the bottom of the channel, but not installed on dry land.” This distinction was important to the Coast Guard because if a migrant were to somehow land on a buoy, the migrant would still be considered “feet wet.” In this way, the Coast Guard has attempted to make a bright line rule based on connectedness to land as a matter of policy. The concern, according to the Coast Guard, is that “if a bridge pier wholly unconnected to dry land were to be considered ‘dry land’ … then any man-made structure affixed to the ocean bottom in United States internal waters … would be susceptible to the same characterization.”

This is a slippery slope argument and it is untenable and unreasonable under the circumstances of this case. The old Seven Mile Bridge and its pier are clearly not structures made for the purpose of aiding migrants attempting to reach United States shores. Additionally, Coast Guard officers on duty would easily be able to distinguish the old bridge, which has been affixed to the ocean floor since 1912, from a manmade structure that was more recently anchored to the sea floor. It is this historical significance that convinces the Court that the Coast Guard’s bright line rule should stop short of the old bridge….

The old bridge was built between 1909 and 1912 by Henry Flagler, a pioneer in developing the eastern coast of Florida. At that time, the bridge was part of the Florida East Coast Railway’s Key West Extension. Following hurricane damage in 1935, the bridge was converted into the Overseas Highway for automobiles in 1938. Although, a new bridge was built in 1982, the old bridge is still used to travel to Pigeon Key, a small island where a work camp for Flagler’s railroad was located. Just beyond Pigeon Key, the portion of the old bridge was cut out. The Cubans in this case landed on the other side of this cut …

[T]he old Seven Mile Bridge, whether connected to United States soil or not, has played an important role in United States history and it is unreasonable to say that it is not United States territory or soil for the purposes of the INA. Coming ashore on the old bridge pier should be sufficient contact with United States to constitute a “landing” on United States territory.

I guess the moral to the story is if you are a refugee seeking asylum in the United States, it is far better for your feet to dry on the right part of the bridge.

http://opiniojuris.org/2006/03/09/dry-feet-on-an-old-bridge/

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