Introduction
On January 12, 2017, the Department of Homeland Security (DHS) opted to revoke the “wet-foot/dry-foot” policy for Cuban migrants that has been in effect since 1995. The DHS is also ending the Cuban Medical Professional Parole program. The announcement by the DHS serves to put Cubans who reach the United States without a visa or legal authorization on the same footing as any other individuals who do so. It represents a significant change in how the United States will treat Cuban migrants, and it severely limits the scope of the Cuban Adjustment Act, which does remain in effect despite the new policy.
The policy change is significant, but it is not at all certain that it will be long-lasting. On January 20, 2017, President-Elect Donald Trump will assume office as the 45th President of the United States. Although the President-Elect has been publicly critical of the Cuban-relations policies of the outgoing Obama Administration, he has not yet taken a position on U.S. policy toward Cuban migrants and refugees. For the time being, the wet-foot/dry-foot policy and the Cuban Medical Professional Parole program are not in effect, but it will be worth watching the Trump Administration carefully for possible changes to the new policy.
In this article, we will examine what the new policy means and what may happen going forward.
Please see the following DHS links to learn more about the policy change:
“Statement by Secretary Johnson on the Continued Normalization of our Migration Relationship with Cuba,” (Jan. 12, 2017) [link];
“Joint Statement” of U.S. and Cuban Governments [PDF version]; and
DHS Fact Sheet [PDF version].
To learn about adjustment of status under the Cuban Adjustment Act, please see our full article [see article]. We will look to make necessary revisions to the article once there is more certainty in the posture of the Trump Administration on this very important issue.
What is Being Changed?
The new DHS policy introduces several crucial changes to the United States’ posture toward Cuban migration. In the subsequent subsections, we will examine these important changes.
Understanding the Cuban Adjustment Act of 1966
The Cuban Adjustment Act of 1966 — which remains in effect — provides special adjustment of status rules for Cuban nationals. If a Cuban national is inspected and admitted or paroled into the United States, physically present in the United States for one year, and otherwise admissible, he or she may be granted adjustment of status under the Cuban Adjustment Act.
Please see our full article on Cuban Adjustment to learn more [see article].
Ending the “Wet-Foot/Dry-Foot” Policy
The “wet-foot/dry-foot” policy created new rules for determining which Cubans would be eligible to apply for parole in the United States and which Cubans would be returned to Cuba or resettled in a third country. Under the policy, Cubans apprehended at sea would either be returned to Cuba or resettled in a third country. However, Cubans who made it to U.S. soil were eligible to request parole. Because of the Cuban Adjustment Act, parole would set the Cuban national up to be able to apply for lawful permanent resident status under the special rules for Cuban nationals. The policy strongly encouraged the granting of parole to Cuban nationals who made it to U.S. soil.
Under the new policy, Cubans who are apprehended in the United States after having entered without inspection will be treated the same as any other aliens, and they will not be offered special consideration for parole.
Expedited Removal Exemption Terminated
Under section 235(b)(1)(A)(i) of the Immigration and Nationality Act (INA), the DHS has the authority to initiate expedited removal proceedings for certain individuals found to be inadmissible at the border. If an individual is subject to expedited removal, he or she may be removed administratively without a hearing in Immigration Court. Individuals are typically detained throughout the expedited removal proceedings, and they have only limited avenues for relief.
Cubans had been exempt from expedited removal. However, under the new policy, Cubans will no longer be exempt from expedited removal. This means that many Cubans who were offered parole under the previous policies may now be subject to expedited removal under the same circumstances.
Please see our full article to learn about expedited removal [see article].
Cuban Medical Professional Parole Program Terminated
The Cuban Medical Professional Parole Program allowed certain Cuban medical professionals in third countries to seek parole at a United States Citizenship and Immigration Services (USCIS) office or at a U.S. embassy or consulate located in the third country. The DHS Fact Sheet explains that the policy applied to Cuban medical professionals who could show that they were medical professionals conscripted by the Cuban Government to study or work in the third country. The immediate family members of beneficiaries of the program were often eligible for parole.
The DHS terminated the Cuban Medical Professional Parole Program on January 12, 2017. This means that the DHS will no longer accept parole applications from Cuban medical professionals who were previously covered by this program.
Cuban Family Reunification Parole Program Continues
The DHS decided to continue the Cuban Family Reunification Parole Program. This program allows certain beneficiaries of approved family-sponsored immigrant visa petitions from Cuba to travel to the United States before their immigrant visas become available.
Reasons for the Change
The DHS offered several reasons why it decided to change its policy. In 2014, the United States made several moves to reestablish diplomatic relations and other ties with Cuba.
Subsequent to the change, the DHS noted a “significant increase” in the number of Cubans seeking to enter the United States without authorization in order to benefit from the previous parole policies. This increase was likely attributable to fears that the United States would end its special parole policy for Cuban migrants, as it ended up doing on January 12, 2017.
The joint statement of the United States and Cuban governments list several agreements underpinning the policy change. The United States and Cuba reached agreements on the application of migration and asylum laws to nationals of the other country. Cuba agreed to accept the return from the United States of certain Cuban nationals who have tried to irregularly enter or remain in the United States in violation of U.S. law. The joint statement states that the United States and Cuba will work to ensure “fully normalized migration relations between the two countries.” Finally, the United States agreed to ensure “legal migration from the Republic of Cuba with a minimum of 20,000 persons annually.”
Conclusion
The new DHS policy is a dramatic shift in how the United States will handle Cuban migrants. Although the Cuban Adjustment Act remains in effect, this new policy greatly limits its usability for Cuban nationals. It is important to note that Cubans who are apprehended on U.S. soil will still be able to seek relief in the forms of asylum or withholding of removal just like any other individual apprehended at the border. Such an individual subject to expedited removal would have to establish a “credible fear of persecution or torture” in order to be eligible for relief.
As we noted in the introduction, this policy change is highly unusual in that it was made just eight days before President Barack Obama leaves office. It is especially unusual in that his successor — President-Elect Trump — appears to have significant disagreements with the Obama Administration’s policy toward Cuba. With that being said, it is unclear at the time of the writing of this article whether the Trump Administration will retain this new policy toward Cuban migrants or seek to reverse it or replace it with different policies entirely.
With the changing Administration, the United States policies toward Cuban migrants will bear watching over the coming weeks and months. We will update this site with any new information on the Trump Administration’s positions on these important issues as they become clear.
