Lawyers for three detained Venezuelan men in New Mexico asked a federal judge on Sunday to bar the U.S. government from sending them to the Navy base at Guantánamo Bay, Cuba, opening the first legal front against the Trump administration’s new policy of sending undocumented migrants there.
Immigration and human rights advocates have been stymied in immediately challenging the policy, in part because the government has not released the identities of the roughly 50 men it is believed to have flown there so far. But the court filing says the three Venezuelan men — who were already represented by lawyers — have a credible fear that they could be transferred.
It says the men are being held in the same Immigration and Customs Enforcement facility, the Otero County Processing Center, where previous groups of men flown to Guantánamo in recent days had apparently been held. They recognized the faces of some of those detainees from government photographs provided to the news media, it said.
The filing also said the men had heard rumors that more such transfers were coming, and said that they “fit the profile of those the administration has prioritized for detention in Guantánamo, i.e. Venezuelan men detained in the El Paso area with (false) charges of connections with the Tren de Aragua gang.”
President Trump issued a directive to the Homeland Security and Defense Departments on Jan. 29, ordering them to prepare to expand a migrant operations center to “provide additional detention space for high-priority criminal aliens unlawfully present in the United States.” The military also sent troops to help expand a tent city on one side of the base at Guantánamo Bay.
Since then, five military flights have taken undocumented immigrants there. So far, however, the men have been housed in an empty wing of the wartime prison complex erected by the Bush administration to hold terrorism suspects after the attacks of Sept. 11, 2001.
The legal challenge brought on behalf of the men is relatively modest. It does not seek to block the administration from sending any more migrants to Guantánamo in general — only the three specific detainees. And the filing acknowledges that a lawyer for the government told them that none of the three “are being moved” to the naval base, though it argues that this could change.
While the U.S. government has taken migrants intercepted at sea to Guantánamo to be processed, it is different to take people who were already on American soil — and therefore covered by the Constitution, even if they were in the United States unlawfully — to the Navy base on Cuban soil to be held in immigration detention.
The Supreme Court has ruled that the government may hold Qaeda detainees at Guantánamo under a law passed by Congress that authorizes the use of military force against the perpetrators of the Sept. 11 attacks. It is not clear what legal authority the Trump administration has to take migrants there and hold them in continued immigration detention.
The filing came as part of an existing lawsuit brought by the men that has been filed by the Center for Constitutional Rights, the New Mexico chapter of the American Civil Liberties Union of New Mexico, and the Las Americas Immigrant Advisory Center.
The men are subject to removal orders after their asylum requests were rejected. But they have been jammed up because of the breakdown in relations between the U.S. government and that of their native Venezuela under President Nicolas Maduro.
That lawsuit argues that the men cannot be held in perpetual detention and so must be freed. The new filing asks the court to block any attempt by the government to send them to Guantánamo, arguing that any such transfer would make it difficult for them to continue to communicate with their lawyers and could open the door to the government’s arguing that the court no longer has jurisdiction.
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