I am aware it is Cuba and that it is not american soil, gtc. The problem is that cuban writ does not run there: that is why I think the point ridiculous and why the US court did not accept that as an argument.
The main argument is this: they are established as refugees. Refugees can claim asylum. They are already asylum seekers if they are in the territory of the state from which they claim asylum. In practice these people are in american territory, by virtue of the fact that americans set the rules within that territory. If you prefer to maintain the fiction that this is in fact Cuba, I am happy to concede that, though I think it specious. So let me give you that.
So they are in Cuba but they are in the hands of the Americans. What now? Well they are refugees by virtue of article 1 of the 1951 convention, which defines a refugee as:
A person who is outside his or her country of nationality or habitual residence; has a well-founded fear of persecution because of his or her race. religion, nationality, membership of a particular social group or political opinion; and is unable or unwilling to avail himself or herself of the protection of that country, or to return there fore fear of persecution
and so they can ask the Americans for inclusion in the refugee programme: and the response to that will be determined by us immigration law and international agreements on the rights of refugees.
Generally, refugees must be outside their homelands to be eligible for the U.S. refugee program, though the U.S. processes application from refugees in their home countries in a few places. (currently, the U.S. has such programs in Cuba, Vietnam, and the former Soviet Union).
They are indeed "outside their homeland". It is agreed that they cannot return to their own state because of a "well-founded fear of persecution". The US has quotas for refugees outside the USA and has stated its priorities thus:
the U.S. has stated its preferred order of solutions are: (1) repatriation of refugees to their country of origin, (2) integration of the refugees into their country of asylum and, last, (3) resettlement to a third country, such as the U.S., when the first two options are not viable.
Repatriation is obviously not an option given they are refugees for the reasons stated.
They are not in cuba because they sought asylum there so it is not their country of asylum. Since the USA has special arrangements for cuban nationals such that they can apply for status as refugees from within cuba, it is clear that the USA does not consider Cuba to be a safe haven for anyone, much less for refugees from third countries: it follows that the USA cannot meet their obligations, international and domestic, by releasing these people to cuba, unless that is what the refugees want.
The third option appears to be the only viable one: and there is no reason why it should not be the USA rather than any other country. Even if you argue they are not on american territory they are under american control and quite obviously so, since the legal battles have been conducted in the american courts.
There are specified conditions which allow the USA to refuse admission even where refugee status is admitted:
The following is a list of grounds for which a refugee may not be admitted to the U.S.:
A person who is determined to have a communicable disease of public health significance
A person who is determined to have certain serious physical or mental disorders
A person who is determined to be a drug abuser or addict
A former citizen of the U.S. who renounced citizenship for tax purposes
A person who has committed a crime of moral turpitude
A person who has violated laws pertaining to controlled substances
A person who has been convicted of two or more criminal offenses
A person who has committed prostitution within the past ten years
An individual who has committed serious crimes and has been granted immunity from prosecution
A person who is intending to practice polygamy in the United States
A person who is attempting to enter the U.S. in violation of U.S. immigration laws, or assists another person to do so
A person who has been involved in international child abduction
A person who is intending to enter the U.S. to conduct illegal activities
A person whose admission to the U.S. would have potentially serious adverse foreign policy consequences to the U.S.
A person who is or has been a member of the communist or any other totalitarian party
A person who has engaged in any way in the persecution of others on the basis of race, nationality, religion, political opinion, or membership in a particular social group
Many, but not all, of the grounds listed above may be waived by the Secretary of Homeland Security upon application by the refugee applicant.
These people do not fall into any of those categories so far as I can see.
I do not accept that these people are not in American territory, as I have said: but I do accept that the situation has been muddied (I think deliberately) by the US government (not with any great success because their claim has been denied by their own courts in a slightly different but relevant context): much of the way the us immigration law has dealt with refugees has been determined by the fact that the US is seldom the first stop for an aylum seeker as a matter of geographical accident: but in this case they are the natural first stop and therefore the us has obligations under the convention. Of course they may ask a third country to take them: but that country is under no obligation to do so and the US is under obligation not to expel them without due process.
