A terror ruling's impact on refugees

A recent US Supreme Court decision dealing with the war on terror may herald good news for Haitian and Cuban refugees seeking freedom in America.

The nation's highest court on June 28 extended the jurisdiction of US courts to detainees at the Guantanamo Bay Naval Base in Cuba. The landmark decision in Rasul v. Bush focuses on the plight of 594 Al Qaeda and Taliban suspects being held indefinitely in military custody there.

But immigration-law experts say the ruling may also benefit a second, lesser-known group of individuals being housed at Guantánamo - Haitians and Cubans who fled persecution in their homelands.

At present, there are 39 Cuban refugees and 14 Haitian refugees at the Guantánamo base. (In addition, one migrant of unidentified nationality is being held.)

"What the Rasul case suggests to us is if [federal court jurisdiction] applies to enemy combatants at Guantánamo, surely those principles should apply to people who have been found by the US government to be refugees," says Bill Frelick, director of the refugee program at Amnesty International USA in Washington.

Since 2002, the Bush administration has used Guantánamo as a kind of rights-free zone in which to conduct open-ended interrogations of suspected enemy combatants. That status hinged on a bright-line judicial holding that federal court jurisdiction over foreign nationals does not extend beyond sovereign US territory.

Because the Guantanamo Bay Naval Base is located on land rented from the Cuban government via an open-ended 1903 lease, it is not US sovereign territory even though the United States exerts total jurisdiction and control over the base.

The jurisdiction question was at the center of legal battles in the early 1990s over the proper treatment of Haitians and Cubans interdicted by the Coast Guard while trying to reach US shores. By 1994, more than 20,000 Cubans and 16,800 Haitians were being housed in tent cities at Guantánamo while the government tried to determine whether they should be returned to their home countries or assisted as refugees fleeing persecution.

In response to lawsuits filed on behalf of the Haitians and Cubans, the government argued that Guantánamo was not sovereign US territory and thus was outside the jurisdiction of federal courts.

A federal appeals court in New York disagreed with the government on the jurisdiction question, while an appeals court in Atlanta upheld the government's view. The issue did not reach the US Supreme Court until the Rasul case this year, with the high court deciding 6 to 3 that federal court jurisdiction extends to Guantánamo.

Justice John Paul Stevens's majority opinion does not mention refugees or immigrants, but many analysts say the holding can be logically extended.

"What is clear is that Guantánamo is no longer going to be an extrajudicial haven for the government where it can operate outside the jurisdiction of the courts when it is detaining foreign nationals," says Lucas Guttentag, director of the ACLU's Immigrants' Rights Project.

But what remains unclear, experts say, is how robust those rights and protections will be when applied in the context of immigration law. Harold Koh, dean of Yale Law School and an international law expert who litigated several Haitian and Cuban cases in the '90s, says the Supreme Court ruling will accelerate the refugees' legal claims. Others aren't so sure.

"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."

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.