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INS spokesman Austin says the agency has no plans to consider extending citizenship to the Guantanamo babies. "I am absolutely perplexed by this claim," he adds. "The coincidence of the location of the hospital doesn't determine nationality overseas. If a child is born to German parents in a U.S. military hospital, that child is a German citizen. Ask the German government if you don't believe it. If a child is born at an American military base overseas to American parents, their citizenship comes from the parents, not from the place they were born. That is how we read the statute, and I have never heard a single congressman say we are interpreting the law wrong."
But the case of Guantanamo may be different, argues Merrill Smith of Church World Service. The 1903 lease established the base for an indefinite period, but because the U.S. now has only limited relations with Cuba, no specific agreement exists defining the responsibilities of each nation with respect to the naval station, a unique situation among overseas U.S. military installations.
Instead Guantanamo, the nation's first foreign military base, falls under special federal maritime and territorial jurisdiction, which grants the United States extraordinary control and autonomy over the area. For example, a Cuban citizen who commits a crime on the base could be tried in U.S. courts, whereas at other overseas bases, U.S. authorities would normally deliver the suspect to the host country for prosecution.
"You might be able to argue that total jurisdiction and control comes pretty darned close to asserting rights of sovereignty," Smith says. "It might as well be U.S. territory for all the control we exercise there. We can do anything we want and the Cubans can't say squat about it."
What the Cuban government might be able to do, however, is grant citizenship to the Guantanamo babies. Cuban nationality laws would seem to preclude that possibility, but government officials concede the issue has not been fully explored. "This point has not been raised," says Rafael Daussa, a spokesman for the Cuban Interests Section in Washington. "As far as I know we have not considered this affair. But this also is not like any other part of Cuba. It has a special status because Guantanamo is a part of Cuba but occupied by the United States government." If the children were granted Cuban citizenship and it was accepted by the U.S. government, they would automatically be allowed to remain in the United States, whether or not they sought political asylum. After one year, they would be eligible for permanent residency and eventual citizenship.
Should the Guantanamo babies be granted U.S. citizenship, their parents in Miami could face a wrenching dilemma. If parents' claims for asylum are rejected and they are returned to Haiti, they would be forced either to take their children with them or leave them here with friends or relatives. "If we have to go back, we will go back," says Abner Eloissaint. "But we would leave James here. Unless the military is reformed in Haiti, he would end up like me -- not even able to fill out a form if he has to. If he stays here, at least he would grow up able to read. If he had to go back the way things are now, he would grow up no better off than us.