Birth of a Notion

In most respects, James Eloissaint is like any five-month-old child. He squirms and bounces on his mother's knee, tugging at a tiny T-shirt, sucking on a finger, smiling and gurgling all the while. But unlike most toddlers in this country, James doesn't have a birth certificate. Born to Haitian-refugee parents at theGuantanamo Bay Naval Station in Cuba, James -- and a handful of infants like him -- is at the center of an unpublicized but growing debate regarding his citizenship: Is he Haitian, Cuban, or American?

Parents and Haitian advocates argue that the estimated 48 children born at Guantanamo to Haitian parents should receive U.S. citizenship due to the base's unique status among overseas military outposts. Federal immigration officials contend that only babies born in the United States or its territories are citizens. The possibility also exists that the children might qualify for Cuban citizenship because that country has never ceded sovereignty of the Guantanamo property.

Ultimately the issue will affect how much U.S. government assistance the youngsters receive and where they will grow up. "I think a serious argument can be made for the children being granted U.S. citizenship," says Merrill Smith, Miami coordinator of the Haitian Asylum Project at Church World Service, one of two social service agencies contracted by the federal government to help resettle refugees. "But it would be very difficult, given the current judicial climate, to win a case like this."

Most countries, including the United States and Haiti, extend automatic citizenship to children of their citizens. Unlike many countries, however, the United States also grants citizenship to any child born on U.S. soil or in one of its territories. This includes the 50 states, Puerto Rico, the U.S. Virgin Islands, and Guam. According to the U.S. Immigration and Naturalization Service, it does not include American vessels such as Coast Guard cutters, aircraft such as airliners, or military bases such as Guantanamo.

"Military bases overseas are not part of the United States," INS spokesman Duke Austin says flatly. "There is no provision in the law for granting citizenship to children born on military-leased pieces of property unless at least one parent is American. Plain and simple. That's what the law reads."

Interpretation of the law, known as the Immigration and Nationality Act, has been challenged before with respect to Haitians. About three years ago a Haitian woman delivered a baby on-board a U.S. Coast Guard vessel that had picked her up at sea. Refugee advocates claimed the ship should have been considered a floating piece of American territory, but the courts found otherwise, ruling against granting citizenship. Advocates are raising the issue again in light of the children born at Guantanamo while their parents awaited processing.

Although the U.S. government now is returning Haitians to their homeland without asylum interviews, many refugees taken to Guantanamo last year and earlier this year were granted preliminary interviews. Those found by an INS hearing officer to have potentially valid claims for asylum were sent to Miami for formal hearings, which could take years to schedule and complete. Some of those included couples whose babies were born at the base.

Such is the case of Abner Eloissaint and Celionne Theramene, parents of James. They left the island of Cayemittes, where 36-year-old Eloissaint worked as a fisherman, on the night of January 20 in a wooden sailboat with nearly 60 other people. The next day they were picked up by the Coast Guard and taken toGuantanamo. After INS officials heard their story -- that the couple's political support for Haitian President Jean-Bertrand Aristide exposed them to danger -- they were given the opportunity to apply for asylum.

On March 25, the same day Eloissaint was sent to Miami, twenty-year-old Theramene delivered her baby at the base hospital. About three weeks later she was sent to Miami as well. At first the couple stayed with relatives; now they are renting two rooms in a Homestead house for $375 per month. The father works two or three days each week picking limes while the mother cares for the baby. They are supposed to be receiving refugee aid in the form of food stamps and cash, but the couple says they are getting only milk for James. Last month they had to depend on assistance from a local pastor to pay the rent. "Even with the help of the Haitians in the community," Eloissaint says through an interpreter, "it is very hard, especially with the child."

Most Haitian refugees arriving in this country, including the Guantanamo babies, are given work permits and social security cards, and are eligible for Medicare and up to $110 in food stamps and $180 in cash per month for eight months. After that time, the support runs out. Though different aid programs would apply, a U.S. citizen in similarly impoverished circumstances would be eligible for benefits that would continue beyond eight months, normally until the individual's economic condition improves. "So if these children were able to get U.S. birth certificates," says Marie Jean-Pierre of Church World Service, "we could find them much more aid. The parents would not be in as bad a situation."

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.


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