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A terror ruling's impact on refugees

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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.

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