Department of Justice Authority to Provide “Protective Custody” for Defectors

Headnotes: 

While any component of the Department of Justice may contract with the Department of State to perform the latter’s security functions, the Department of State is not authorized to provide protective custody to defectors who are neither leading figures in, nor direct representatives of, their government.

The Attorney General has authority under the Immigration and Nationality Act to prevent departure of an alien defector who is being repatriated under duress and might, in a particular case, have discretionary authority to provide some sort of protective custody for that defector.

Under § 235(b) of the Immigration and Nationality Act, the Immigration and Naturalization Service has authority to detain a defector who is deportable or excludable, until such time as he is granted political asylum.

If a defector is assaulted, harassed, specifically threatened, or abducted, so as to bring into play one of several potentially applicable federal criminal statutes, federal law enforcement agencies may be authorized to play a role in his protection.

The Secretary of State may designate any defector an official guest in order to make it a federal offense to assault, harass, intimidate, coerce, imprison, threaten, kidnap, or kill the defector.

Updated July 9, 2014