The Cuban Exception – Is there a Double Standard for Undocumented Immigrants?

Immigration History and Policy

I’m from Texas. As a result, I’ve had contact (known, and possibly unknown) with undocumented immigrants from Mexico. For instance, when I was an undergraduate I taught an ESL course to several undocumented adult Mexican students, all of whom were struggling to get by, afraid of the authorities to varying degrees, and extremely eager to take part in the “American dream.”  Then, in a course on Refugee Law and Policy during graduate school, I learned a somewhat baffling fact after having witnessed the difficulties of so many Mexican immigrants in Texas: Cubans can claim asylum at the border with very few questions asked. 

For nearly 35 years, from the passage of the 1962 Migration and Refugee Assistance Act until August 1994 with the passage of the Cuban Migration Agreement, Cuban citizens enjoyed automatic parolee or special entrant status into the US. 1 As such, Cuban immigrants were provided with federal assistance in areas like job training, education, housing, medical care, and social welfare benefits. 2 In comparison to the long and arduous process many Central American immigrants 3 must go through to gain legal permanent residence status in the US. Such treatment is a glaring blip in US policy.

Although the ‘open door’ policy toward Cuban immigrants was rescinded in 1994 with the passage of the Cuban Migration Agreement, 4 Cubans continue to enjoy a preferred status upon entering the US. This article will examine the history surrounding what I will call the “Cuban exception,” and in a second post I will outline how this policy compares with the trials and tribulations refugees from other Latin American countries must undergo to claim asylum in the United States.

When Fidel Castro assumed power of Cuba in 1959, the US, for political reasons, initiated an open policy for Cuban immigration. 5In the years following the Communist takeover of the island nation, there were many Cuban refugees who sought exile on legitimate political grounds, as defined in the 1951 UN Convention Relating to the Status of Refugees. 6 After Castro took over the country in 1959, those who had supported Batista fled, fearing persecution based on their political beliefs, which is one of the grounds on which asylum may be claimed. 7 However, the way in which these refugees were received astounds the post-9/11 mind.

In the wake of the Cuban Revolution, the US government made it as easy as possible for Cuban political refugees to reach the United States. The US consular office in Cuba remained open until January 1, 1961, before it closed when the US severed diplomatic relations with the small island nation. During its remaining time as a functioning consulate between 1959 and 1961, the office expedited visas for Cubans seeking to immigrate to the US. In addition, the Coast Guard did not attempt to turn back undocumented Cubans (in stark contrast to the way in which Haitian refugee ships were turned back before they could enter US territorial waters in the 1990s), and the Immigration and Naturalization Service 8 avoided imposing deportation proceedings against undocumented arrivals, and began granting ‘extended voluntary departure’ to avoid deportation. According to a Congressional Research Service report, such special treatment of Cuban immigrants to the US largely continued unabated until 1995, as the US did not generally repatriate Cubans in the US without documentation. 9 

This special treatment of Cuban immigrants was written into US policy in 1966, when Congress enacted the Cuban Adjustment Act (“CAA”), which is still in effect today. 10 Under the Act, most undocumented Cubans arriving in the US are allowed to stay and adjust to permanent resident status if they have been physically present in the US for at least one year. No other nationality enjoys this opportunity. 11 Under the Act, persons fleeing Cuba are presumed to be refugees under international law. However, the CAA does not use the definitions used by the 1951 Refugee Convention.” 12 Regardless of their reasons for leaving, the US has maintained a consistent perception of Cuban immigrants as refugees under international law, despite the fact that the CAA does not use the language or definitions commonly employed to define a refugee or asylee. 13 In other words, Cubans continue to be perceived as refugees for political purposes, rather than for the humanitarian principles espoused in the Refugee Act of 1980, which apply to refugees from all other nations. 14 

Despite the fact that the Cuban Migration Agreement of 1994 limited the ease of access for Cubans attempting to reach the US (turning away those intercepted at sea), 15 for those who can still make it to the US border, the CAA continues to allow relatively easy immigration. For instance, as one USCIS lawyer speaking at the Refugee Law and Policy course at Georgetown in the Fall 2010 semester articulated: “If a Cuban can make it to the border of Mexico and Texas with his national ID declaring him a Cuban citizen, Border Patrol officers have to let him or her in.”

What effects does this policy have on other immigrants from Central America? How does it impact men and women whose circumstances conform to the definition of refugee as described by the UN Refugee Convention? How has the migration policy toward Cuba changed in the most recent Administration? And how does it affect legal and undocumented immigrants, like those I come into contact every day in my native Texas? I will explore these questions in my next post.

Timeline:

1959:

Fidel Castro takes power in Cuba.

1961:      

The US closes its consulate in Havana.

President Kennedy establishes successor program to the Cuban Refugee Program, known as the Cuban Migration Agreement, to provide welfare benefits to Cubans in need and to resettle thousands of Cubans in southern Florida.

1962:      

Cuban refugee aid is authorized on a permanent basis through the passage of the Cuban Migration Agreement.

1966:

The Cuban Adjustment Act (CAA) is enacted.

1980:

Mariel Boatlift brings over 125,000 Cuban refugees to Florida.

1994:      

The Cuban Migration Agreement normalizes migration between the two nations, and ends the open door policy for Cuban migrants.

1996:      

Congress enacts language stipulating the CAA will be repealed when Cuba becomes a democracy’, but the CAA continues otherwise unabated.

2008:    

Raúl Castro assumes the Cuban Presidency.

During his presidential campaign, candidate Barrack Obama states he will seek to change US policy by allowing unlimited family travel and remittances to Cuba, signaling to some the possibility of resuming migration talks.

2009:    

President Obama expresses hope of ‘new beginning’ with Cuba at Summit of the Americas.

 


Notes:

  1. Larrt Nackerud, Alyson Springer, Christopher Larrison and Alicia Isaac, “The End of the Cuban Contradiction in US Refugee Policy,” International Migration Review, 33.1. (1999),177.
  2. “The End of the Cuban Contradiction in US Refugee Policy,” 177.
  3. Before even visiting the US, most Central American and South American nationals must obtain a travel visa just to enter. Once here, if immigrants wish to claim asylum, they must first fill out a form issued by the USCIS. If they are paroled in, they must then prove before an immigration judge that they do, in fact, suffer from a well-founded fear of persecution on one of the five grounds defined by the 1951 Convention Relating to the Status of Refugees.
  4. The Act changed the following:

    • Cubans intercepted at sea were no longer allowed to come to the US, but were sent to safe haven camps at a third location.
    • The US agreed to issue only 20,000 immigrant visas annually to Cuban nationals.
    • The US agreed to cooperate in the voluntary return of Cubans who arrived in the US or were intercepted at sea.

    See Ruth Ellen Wasem, “Cuban Migration to the United States: Policy and Trends,” CRS Report for Congress, June 2, 2009, 3.

  5. Many immigrants were admitted as a result of Cold War politics. US policymakers believed that by allowing Cubans  (and other immigrants from Communist countries such as Hungary and Vietnam) to immigrate, an ongoing outflow of refugees would weaken the credibility of the Cuban regime, as well as contribute to an effective brain drain in Cuba.
  6. Which states that a refugee is a person who “owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country…” See “UN Convention Relating to the Status of Refugees,” available at http://www.unhcr.org/3b66c2aa10.html.
  7. John Scanlan and Gilburt Loescher. “US Foreign Policy, 1959-1980: Impact on Refugee Flow from Cuba.” AAPSS. 467. May 1983.
  8. Now the US Citizenship and Immigration Services. The INS ceased to exist under that name when the majority of its functions were transferred from the Department of Justice to the USCIS, the US Immigration and Customs Enforcement (ICE), and the US Customs and Border Patrol within the newly created Department of Homeland Security following the attacks of September 11, 2001.
  9. Ruth Ellen Wasem, “Cuban Migration to the United States: Policy and Trends,” CRS Report for Congress, June 2, 2009, 2.
  10. Ibid.
  11. Ibid.
  12. The 1951 Refugee Convention defines a refugee as someone who is seeking asylum due to a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
  13. “Cuban Migration to the United States: Policy and Trends,”4.
  14. “The End of the Cuban Contradiction in US Refugee Policy,” 176.
  15. For those Cubans who can afford it, many now fly to Mexico and go by land to the border of Mexico and Texas, rather than attempting the risky sea journey from Cuba to southern Florida.
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Erin Osterhaus

Contributing Editor at Blueprint JD
Erin is our resident "expert" on issues relating to the law in the international non-profit/NGO setting. She spent the last two years in DC in the (successful) pursuit of an MA from Georgetown's School of Foreign Service, and is currently an Associate at Center for Civilians in Conflict, where she works on issues related to international humanitarian and human rights law. In her spare time she reads books, lots of books, writes articles on media and music, and occasionally goes for a run. In the future she dreams of becoming a full time writer and editor for an international affairs publication, while writing fiction on the weekends.

1 Comment

  1. Glenn

    January 12, 2013

    You better believe their is a double standard. Then the entitlements they receive because of the Cuban Adjustment Act is not right when some or our own citizens don’t receive them. It’s time to get the politics out of the Cold War policy.

    Reply

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