A terror ruling's impact on refugees
The Supreme Court's ruling on Guantánamo detainees may have implications for Haitian and Cuban refugees.
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"Can you get to court? Yes. But what can you claim?" asks David Martin, a University of Virginia law professor and former Immigration and Naturalization Service general counsel. "I would guess the range of rights one could claim on Guantánamo will be more limited than [someone filing suit from within] full-fledged US territory."Skip to next paragraph
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Andrew Schoenholtz of the Institute for the Study of International Migration at Georgetown University says the courts have traditionally allowed the government wide latitude and discretion in dealing with immigration matters. That approach may continue, he says, even as terror suspects at Guantánamo are afforded broader rights and hearings. "There will be a way for the Supreme Court to hold that [intercepted Cubans and Haitians] do not have a right to judicial review," he says.
Nonetheless, analysts say the high court's Rasul ruling will encourage a new round of litigation testing the bounds of US immigration policy. A process that has long been conducted on a closed naval base, far from the penetrating scrutiny of lawyers and federal judges, is about to be placed under a legal microscope, they say.
"For years the government policy has been to turn away as many Haitians as possible," says David Abraham, a law professor at the University of Miami. "That is easier to do at Guantánamo where the ability to contact family, friends, and attorneys is limited."
Under current US policies, Haitians and Cubans intercepted at sea by the Coast Guard are screened to determine if they have a valid claim as a refugee. The vast majority are returned to their home country. Those few who are deemed to have a credible fear of persecution are taken to Guantánamo, where the US State Department attempts to find a third country to accept them.
As bona fide refugees, the Haitians and Cubans enjoy a right not to be returned to their home country. But at the same time their refugee status gives them no right to resettlement in the US. The end result is that the refugees must remain at Guantánamo indefinitely - stuck in legal limbo - until a third country agrees to accept them.
According to a State Department official who asked not to be identified, the Haitians and Cubans are living in former military housing and are allowed free access to public areas of the base. They can work, open bank accounts, send and receive mail, attend religious services, and socialize with others on the base.
The State Department official stressed that the refugees are not being held behind bars or fences. "We are not stopping them from going back to their country. We are just housing them until another country can be found," the official says.
The State Department says the ordeal is not hopeless. Since 1995, 165 Cubans and six Haitians have been resettled in 11 countries. "It is an ongoing effort," the official says. During the same period, 14,930 Haitians and 8,758 Cubans were intercepted at sea and returned to Haiti and Cuba by the US government, according to Coast Guard statistics.