The End of ‘Wet-Foot, Dry-Foot’ Cuban Policy
President Obama’s Jan. 12, 2017, announcement ending the “wet-foot, dry-foot” policy on Cuban migration has prompted many questions as to how this change will impact immigration law. Understanding the origins of the policy will help address what is at stake for Cuban nationals moving forward.
The policy has been around for 20 years and is the result of Cold War politics. As a Cold War tactic, Cuba refused to take back its nationals who had been ordered deported from the United States. Similarly, anyone who tried to flee Cuba for the United States was treated as a political dissident and traitor, thereby prompting viable asylum clams. In 1966 Congress passed the Cuban Adjustment Act, or CAA, which renders Cubans who arrive in the United States eligible for legal permanent residence one year after arrival, though it was initially two years and later amended. Facing viable asylum claims, the protections of CAA in place and Cuba unwilling to accept its nationals, the United States began granting parole to Cubans who safely made it to U.S. territory. Those who were caught at sea by the Coast Guard or Department of Homeland Security were returned to Cuba, while those who successfully landed here were given parole status, including those who presented themselves at a land border. Thus, the “wet-foot, dry-foot” policy was born. The combination of this policy with the CAA allowed Cubans a direct path to legal permanent residence and, eventually, U.S. citizenship.
What we currently know about how the end of this policy will be implemented and how it will affect Cuban nationals wishing to immigrate is limited, especially in the early days of a new administration. CLINIC will report any new definitive information we get on the end of “wet-foot, dry-foot” policy. For now, here is a short list of what we know, what we can assume, and what we need to know.
What we know:
- U.S. Citizenship and Immigration Service-Miami is currently accepting Cuban parole requests for those who arrived in the U.S. prior to the Jan. 12 announcement of the policy change and is still awaiting guidance on how or whether to process those who arrived post-announcement
- Those who are detected upon inspection after Jan. 12 will not benefit from parole
- The CAA is still good law. The CAA is a very generous form of relief that permits citizens or nationals of Cuba to adjust their status if they have been physically present in the United States for at least one year after admission or parole and are admissible as immigrants. The bars to adjustment enumerated in INA §245(c) are inapplicable to the CAA. However, permitting applications for adjustment of status is a discretionary decision. Until further notice, Cubans already in the United States for at least a year following parole or an admission will be able to apply for adjustment of status.
- Like most other migrants without permission to enter, the challenge will be getting into the United States undetected.
What we can assume:
- Successful, undetected passage through the sea will be extremely difficult, forcing Cubans to attempt to cross into the United States through the U.S.-Mexico or U.S.-Canada borders
- This next population of Cubans crossing through land borders will add new clientele for the human smugglers. Because this population tends to have access to affluent family members in the United States, smuggling fees will likely rise. If this increase affects all migrants, it will most negatively impact impoverished families fleeing violence in the Norther Triangle.
- Those who are detected upon inspection will instead face detention, be subject to expedited removal, and be forced to undergo the same credible-fear interview, or CFI, and reasonable-fear interview, or RFI, process that everyone else undergoes
- Cuban family units will be subject to family detention
- Cuban children will rely on Special Immigrant Juvenile Status as a form of relief, harkening back to the Elian Gonzalez controversy.
- Cubans seeking nonimmigrant visas will be subject to heightened scrutiny into immigrant intent since, if admitted, they would be able to apply for adjustment after one year of physical presence in the United States.
What we need to know:
- Is Cuba willing to take back all removable Cuban nationals or is there a limit on whom they will accept? In particular, will Cuba accept any or all nationals with criminal records? Conversely, will the DHS prioritize the deportation of certain Cubans? If so, what is the prioritization criteria?
- Will Cuban nationals who were admitted or paroled and placed into removal proceedings continue to obtain dismissal of their removal proceedings and seek adjustment with USCIS? Or, will the expectation be to seek adjustment?
- If Cuban nationals are subject to the expedited removal, CFI and RFI process, how will an already over-burdened CFI and RFI process accommodate this new population?
- What is the fate of the CAA, Cuban in-country refugee processing, and the Cuban Family Reunification Parole Program?
Take a moment to consider the impact this policy had on American jurisprudence – from the immigration consequences of criminal convictions, to U.S. Supreme Court rulings on indefinite detention, to best interests of the child assessments, and many more.