31. The Applicability of International and Domestic Immigration Law to Relocated Guantanamo Detainees
- Author:
- Sarah Weiner
- Publication Date:
- 11-2015
- Content Type:
- Working Paper
- Institution:
- Center for Global Legal Challenges, Yale Law School
- Abstract:
- The physical relocation of detainees from Guantanamo to the United States would not meaningfully alter U.S. obligations under domestic immigration law or international law concerning refoulement. Domestic immigration law would not affect U.S. authority to bring aliens into the United States and to detain those aliens under the laws of war. Detainees would not enter the United States as immigrants, but rather would remain legally “at the border” during their detention. If a detainee secures his release from law-of-war detention, then the United States would be prohibited from transferring the former detainee to a country where there are substantial grounds for believing that he would be in danger of being subjected to torture. This obligation applies equally to detainees held at Guantanamo and in the United States. If the United States could not find a suitable country to accept the former detainee, then the United States may have the authority to hold the alien indefinitely in immigration detention, provided that his custody meets statutory requirements. This authority is constitutionally untested and potentially inconsistent with obligations under international law, but these concerns would apply equally to both Guantanamo- and U.S.-located former detainees.
- Topic:
- Law, Prisons/Penal Systems, War on Terror, and Detention
- Political Geography:
- North America, United States of America, and Guantanamo