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The Trump administration said Tuesday it has begun flying migrants from the U.S. to a temporary holding facility in Guantánamo Bay, Cuba, before deporting them to other countries, even though some lawyers question the legality of that move.

As of early Wednesday morning, the U.S. had not released an official figure of how many migrants were sent to Guantánamo, but it appears to be a small number — possibly just one flight with about a dozen migrants onboard. The Department of Homeland Security said they are all members of a Venezuelan organized crime group called Tren de Aragua and it 

 of handcuffed men in grey sweatsuits, some with neck tattoos that can 

White House press secretary Karoline Leavitt said migrants are being deported because “President Trump is not messing around and he is no longer going to allow America to be a dumping ground for illegal criminals from nations all over this world.”

The Trump administration said last week it wants to 

 for 30,000 migrants, although its plan will face numerous 

financial, political and logistical hurdles

. Some immigration experts say sending the migrants to Guantánamo is illegal, but the White House is moving forward despite potential litigation to come.

Several hundred U.S. military service members 

 in recent days in preparation for the arrival of migrants, according to the Defense Department. It said the number of service members deployed there will “continue to fluctuate” based on guidance from the Department of Homeland Security, which will oversee the holding facility.

Defense Secretary Pete Hegseth has said the migrants will not be housed in Guantánamo's U.S. military prison alongside alleged 9/11 mastermind 

 and other suspected foreign terrorists rounded up after the September 11th, 2001, attacks, some of whom have been detained for more than two decades without being charged.

Instead, they are expected to be housed in 

 on the U.S. naval base in Guantánamo, which for decades has maintained a detention facility used for migrants intercepted at sea, usually Haitians and Cubans. That facility has been mostly empty for years and is not ready for large numbers of people.

 of service members erecting green Army tents at Guantánamo to help with what it’s calling a “Migrant Operations Center expansion.”

“We’ve always had a presence of illegal immigrants there that have been detained. We’re just building out some capacity,” said Homeland Security Secretary Kristi Noem, adding that “due process will be followed.”

“Having facilities at Guantánamo Bay will be an asset to us,” she said, “and will hold the worst of the worst...people that had warrants out for their arrest on murders and rapes, assaults, gun purchases, drug trafficking…These are the types of individuals that we are targeting, we’re removing from communities, and that could end up having a stay at Guantánamo Bay before they are returned home to their countries to deal with.”

Whether it is permissible for the U.S. to do this is murky legal territory.

The co-director of the UCLA School of Law’s Center for Immigration Law and Policy,

Ahilan Arulanantham, considers these to be illegal deportations. He said because the migrants spent time in the U.S., they are entitled to some of the benefits of U.S. immigration law, including rules that govern where they can be deported. If Cuba has not agreed to take them, then the deportations would be illegal, Arulanantham said, since Guantánamo is not U.S territory.

If a migrant believes he or she has been illegally deported to Guantánamo, “it would be incumbent upon the family member of someone who had been sent there to reach out to an attorney,” Arulanantham said, “and they would then bring litigation to challenge it.”

But Steve Vladeck, a professor at Georgetown Law Center, argues that the U.S. can legally send migrants to Guantánamo on a short-term basis. A deportation is not official until the U.S. has relinquished custody of the migrants, a step that won’t happen until they’re moved to another country after their stay at Guantánamo, he said.

Vladeck also believes that the Trump administration is sending migrants to Guantánamo as a form of macho performance art.

“All they’re doing this for is the symbolism…to be able to say, ‘Look, I moved these folks from the detention center across town to Guantánamo,’” Vladeck said. “It’s all very, very expensive flash with very little substance.”

Ben Wittes, editor of the legal website Lawfare, agrees, noting that it would be cheaper and easier to hold soon-to-be-deported migrants in a big open space somewhere in the United States. But by shipping them to Guantánamo, with its 

“Is he using this facility because it has the stain of the name Guantánamo? And, of course, the answer is yes,” Wittes said. “That’s exactly why he’s attracted to it. He’s attracted to it for the same reason that it repels human rights groups.”

Wittes doubts that the U.S. will ultimately send 30,000 migrants to Guantánamo, given the legal questions surrounding the plan and the financial, political and logistical barriers it faces.

For one thing, Congress would likely have to allocate money to create a detention center of that size, and it’s unclear whether it has the appetite to do so -- especially since Guantánamo’s military prison has cost U.S. taxpayers at least $6 billion since opening in 2002 despite holding, at its height, just under 800 people.

But sending even a handful of migrants to Guantánamo has already generated more public attention than if they had been held at an existing detention facility on the U.S. mainland. And that, Wittes said, is part of the point.

Sacha Pfeiffer

Author

President Trump aims to deport up to 30,000 migrant detainees to a holding facility there, despite the questionable legality of that move.

The first group of migrants has been sent to Guantánamo, but legal challenges loom

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