The Trump administration has begun transferring migrants, particularly over 150 Venezuelans, from the U.S. to Guantánamo Bay, raising significant legal concerns about the authority and rights involved. Questions arise regarding the legality of such transfers since the Immigration and Nationality Act does not include Guantánamo in U.S. territory definitions. Legal experts are uncertain about the government’s power to detain migrants there or provide them access to legal counsel, as constitutional rights should extend to those on U.S. soil. Additionally, the duration of their stay at Guantánamo is uncertain due to challenges in deporting them back to Venezuela.
The administration under Trump has begun transporting migrants from the United States to the American military facility at Guantánamo Bay, Cuba, prompting numerous legal inquiries regarding the government’s power to execute such actions and the fundamental rights of those detained.
Over 150 Venezuelans are currently believed to have been relocated there. At least three lawsuits have been initiated concerning different parts of this policy, with human rights organizations poised to launch a wider legal challenge.
Below are some significant legal concerns that have been raised.
Is the transfer of migrants there lawful?
It remains uncertain whether the government possesses the legal authority to transfer migrants from the U.S. to Guantánamo, a location characterized by its unusual and unclear legal status.
The base occupies sovereign Cuban land, yet the United States maintains exclusive control due to a longstanding lease and the estranged relations with Cuba’s Communist government.
Typically, the authority for transfers derives from the Immigration and Nationality Act, which permits the detention of migrants awaiting deportation who have finalized removal orders.
There is consensus that Immigration and Customs Enforcement can relocate individuals among its various facilities within the U.S. while they’re awaiting removal. However, the Act delineates the geographic regions of the United States to include only the 50 states, Puerto Rico, Guam, the Virgin Islands, and the Northern Mariana Islands, expressly excluding Guantánamo.
The Act allows for the transfer of migrants to other nations, but with a significant restriction: migrants can only be sent to countries where they lack personal ties, provided the receiving government’s consent is secured. Nevertheless, Cuba has not permitted the U.S. to bring Venezuelan migrants to its territory.
Due to the apparent lack of clear statutory permission to move migrants to Guantánamo, Ahilan T. Arulanantham, an immigration law expert at UCLA, speculated that if litigation arises, the administration may assert that President Trump has inherent constitutional powers to send migrants there.
However, he voiced skepticism regarding the viability of such a claim. Handling immigration issues was predominantly viewed as a state concern during early American history, with federal involvement only expanding in the 19th century.
What is the legal authority for detention there?
A number of immigration law experts have been actively searching federal statutes for a definitive source granting the government authority to detain noncitizens outside the United States for immigration-related reasons, but they have found none.
While there are other detainees at Guantánamo, their situations differ markedly.
Some are suspected terrorists, whose detention stems from legislation enabling military action against those responsible for the September 11 attacks. The migrants are not part of Al Qaeda.
For many years, the government has intercepted Cuban and Haitian migrants at sea and relocated them to Guantánamo for screening, asserting that these individuals do not possess rights under the Constitution or immigration statutes, since they have not set foot on U.S. soil.
Occasionally, such individuals can remain at the base for extended periods, during which they are housed at a migrant center and face movement restrictions. However, the government continues to assert that they are not being detained, claiming that they have the option to return home.
Are they entitled to legal counsel?
Recently, a coalition of legal aid organizations filed a lawsuit against the government, seeking to ensure that migrants have access to lawyers to determine their need for legal representation.
Everyone present on U.S. territory retains constitutional rights, regardless of their legal immigration status. These rights encompass due process and access to legal counsel. The plaintiffs contended that the constitutional rights of the migrants extend to the Navy base.
In practical terms, most migrants currently lack the ability to communicate with lawyers due to being held without means to do so. The Justice Department has tentatively agreed to allow three individuals mentioned in the case, with their relatives also named as plaintiffs, to have phone conversations with lawyers.
However, it remains uncertain how the Trump administration will navigate the broader issues related to this case.
What is the duration of their stay?
In its announcement of the initial transfer flight, the Pentagon described the operation as a “temporary measure” to secure the migrants until they can be sent back to their home country or another suitable location. However, if some remain in Guantánamo for an extended period, further questions regarding long-term immigration detention will arise.
U.S. immigration law mandates that a noncitizen must be deported within 90 days following a removal order. Yet, there are instances when a destination for deportation cannot be found, and the time limit expires. Repatriating Venezuelans has proven challenging due to deteriorated diplomatic relations between the U.S. and Venezuela’s authoritarian regime.
In a 2001 ruling, the Supreme Court concluded that the government generally cannot maintain noncitizens in indefinite immigration detention. If individuals are subject to final removal orders but no likelihood of deportation exists, the government must eventually release them, with exceptions for those considered a danger to public safety.
These exceptions might provide a loophole for some of the migrants. President Trump and his administration have characterized these individuals as criminals and associates of a perilous gang, Tren de Aragua. Secretary of Defense Pete Hegseth has called them the “worst of the worst.”
Yet, it’s unclear whether this label applies universally to all of them. Congressional staff received information in a briefing indicating that the sole criterion for being transferred to the base is being a Venezuelan citizen with a finalized removal order.
Does the military’s presence have implications?
Officially, the migrants are under ICE’s legal custody; however, the presence of ICE officers at the base is minimal. While some migrants are detained in a lower-security area supervised by the Coast Guard, others are confined in a military prison related to the war on terror. This situation introduces various potential complexities.
One issue involves the standard of living conditions. ICE has established specific guidelines for immigration detention facilities, including required recreation time for detainees. Many details remain classified, and it is uncertain to what extent military personnel — who previously managed wartime detainees under distinct protocols — adhere to ICE standards.
Another complication pertains to legal constraints on using military forces for law enforcement purposes. The Posse Comitatus Act generally prohibits the involvement of federal troops in policing roles. An exception exists under the Insurrection Act, but as of now, President Trump has not invoked it.
While the military has supported ICE in the past, such assistance has typically been limited to logistical and administrative roles at the border, aimed at allowing more ICE agents to pursue fieldwork rather than engaging directly with the migrants.
Carol Rosenberg contributed reporting from Miami.