Gutierrez v. Noem is a case filed by two men who are nationals of Nicaragua currently in immigration detention at the Guantánamo Bay Naval Station, on behalf of themselves and a similarly situated class of “all immigration detainees originally apprehended in the United States and detained at U.S. immigration detention facilities, and who are, or will be held at Naval Station Guantánamo Bay, Cuba.” They challenge the government’s unprecedented and unlawful decision to transfer and hold immigration detainees in a detention facility at Guantánamo, which violates U.S. immigration law, is arbitrary and capricious, and lacks any legitimate policy purpose. They also challenge the unconstitutional, punitive detention conditions endured by immigration detainees at Guantánamo. They seek relief including a declaration that the detainees’ detention at Guantánamo violates the Constitution and laws of the United States; vacating the U.S. policy and practice of transferring immigration detainees from the United States to Guantánamo; enjoining the government from holding detainees at Guantánamo; and awarding attorneys’ fees, costs, and other necessary and appropriate relief.

The base at Guantánamo is—as the federal government has consistently argued through several administrations—not the sovereign territory of the United States, but rather remains a part of Cuba (under a perpetual lease to the United States). Therefore, removal to the base constitutes removal to a foreign country. However, the Immigration and Nationality Act places strict limits on which countries an immigrant with a final order of deportation may be removed to; if the country of removal (here, Cuba) is not the detainee’s country of citizenship (or a country to which the detainee has some other preexisting relationship), or the detainee’s choice of destination, then that country must willingly accept the detainee—which Cuba has adamantly declined to do.

The legal claims include not only the fact that the Immigration and Nationality Act does not allow for transfers to or detention at Guantánamo, but also that the transfers are arbitrary and capricious in violation of the Administrative Procedure Act (APA), and that they violate due process under the Fifth Amendment because the transfers are undertaken for punitive, illegitimate reasons and the conditions in which the detainees are housed are unconstitutional.

The stories told by the first 177 migrants held at Guantánamo—all now removed to Venezuela or, in one case, taken back to the United States after his mistaken deportation to the base—detail horrific, abusive conditions of confinement. Detainees were kept in solitary, windowless cells for at least 23 hours per day. They were allowed extremely limited time outside of their cells, constantly shackled and invasively strip searched, and were never permitted to contact family members. Guards engaged in verbal and physical abuse, including restraining people in a “punishment chair” for hours, withholding water as retaliation, threatening to shoot detainees, and fracturing one individual’s hand by slamming a radio onto it. Some men lost as much as twenty pounds over the span of several weeks and still cannot sleep because of what they endured. One man was reportedly beaten so badly that he tried to harm himself twice in two weeks. Detainees endured insults and taunting by guards, without any information about how much longer they would be subject to these conditions. These degrading conditions and extreme isolation led to several suicide attempts.

Of course, imposing terror over immigration detainees—wherever currently held—and over prospective immigrants was the administration’s intention. The government has referred to the transferees as “the worst of the worst,” and “high-threat” criminals who had crossed the border to bring “violence and mayhem to our communities.” DHS Secretary Noem stated that the transferees were murderers, rapists, pedophiles, child traffickers, and drug traffickers, though it is now clear that many detainees lacked any criminal record at all, and some were apprehended on immigration charges immediately upon entering the United States. After visiting Guantánamo, Noem posted a warning on social media boasting that she “was just in Cuba” and noncitizens should “not come to this country or we will hunt you down, find you, and lock you up.” In explaining the decision to detain immigrants at Guantánamo, President Trump stated, “we don’t want them coming back,” “[s]o we’re going to send them to Guantánamo ... it’s a tough place to get out.”

This case is a successor to the Escalona v. Noem case, which was voluntarily dismissed after the named plaintiffs were transferred from U.S. custody or no longer at risk of transfer to Guantánamo. It is also a companion case to the ongoing Las Americas v. Noem / Suazo-Muller v. Noem case, which challenges the lack of meaningful counsel access to immigration detainees at Guantánamo.