Cuban Migration Policy and Issues

Cuban Migration Policy and Issues
Ruth Ellen Wasem
Specialist in Immigration Policy
Domestic Social Policy Division
Many of the issues surrounding Cuban migration are unique but not new. Normal
immigration from Cuba has been elusive since Fidel Castro came to power. Over the
past 40 years, the practice of Cubans fleeing by boat to the United States has become
commonplace, and at some points reached the levels of a mass exodus. Since the last
upsurge of “boat people” in the mid-1990s, the United States and Cuba worked toward
establishing safe, legal immigration, which include returning migrants interdicted by the
U.S. Coast Guard. These migration policies, however, are not without critics. Cuban
interdictions hit an 11-year high of 2,810 in FY2006. This report does not track
legislation but will be updated if policies are revised.
Between 1962 and 1979, hundreds of thousands of Cubans entered the United States
under the Attorney General’s parole authority, many of them arriving by boat. In 1980,
a mass migration of asylum seekers — known as the Mariel boatlift — brought
approximately 125,000 Cubans (and 25,000 Haitians) to South Florida over a six-month
period. After declining for several years, Cuban “boat people” steadily rose from a few
hundred in 1989 to a few thousand in 1993. After Castro made threatening speeches in
1994, riots ensued in Havana, and the Cuban exodus by boat escalated. The number of
Cubans intercepted by the U.S. Coast Guard or the U.S. Border Patrol reached a post-
Mariel high of almost 40,000 in 1994.
Until 1995, the United States generally had not repatriated Cubans (except certain
criminal aliens on a negotiated list) under a policy established when the government
became Communist within two years of the 1959 revolution. Not only has the United
States been reluctant to repatriate people to a Communist country, but the Cuban

government typically has also refused to accept Cuban migrants who are excludable under
the Immigration and Nationality Act (INA).1
Cuban Adjustment Act of 1966
Most of the undocumented Cubans who arrive in the United States are allowed to
stay and adjust to permanent resident status under the Cuban Adjustment Act (CAA) of
1966 (P.L. 89-732).2 CAA, as amended, provides that certain Cubans who have been
physically present in the United States for at least one year may adjust to permanent
resident status at the discretion of the Attorney General — an opportunity that no other
group or nationality has. The alien must be eligible to receive an immigrant visa and be
admissible to the United States as a legal permanent resident (LPR). Spouses and
children accompanying the aliens who are applying for this adjustment are also covered
by CAA. Cubans apply to the U.S. Citizenship and Immigration Services (USCIS) in the
Department of Homeland Security (DHS) to adjust as LPRs under CAA.
CAA predates the Refugee Act of 1980, the law that incorporates refugee and asylum
principles into INA.3 The legislative debate leading up to its enactment makes clear that
persons fleeing Cuba are presumed to be refugees under international law, but the CAA
does not use the language or definitions commonly used for refugee and asylee.4
Legislative efforts to “sunset” CAA or repeal it outright have not been successful
however, in 1996 Congress enacted language stipulating that CAA would be repealed
when Cuba became a democracy.5
Cuban Migration Agreement, September 1994
“Normalizing” migration between the two nations was the stated purpose of the
migration agreement signed on September 9, 1994, when the status quo of U.S. policy
toward Cuban migrants was altered significantly. The plan’s objectives of safe, legal, and
orderly immigration relied on six points.
!The United States agreed to no longer permit Cubans intercepted at sea
to come to the United States; rather, Cubans would be placed in a safe
haven camp in a third location. Justifying this policy as a “safety of life

1 Cubans who have been convicted of crimes in the United States pose complex problems, as
Cuba is among a handful of nations that does not generally accept the return of criminal aliens.
2 Act of Nov. 2, 1966; 80 Stat 1161.
3 As a signatory to the United Nations Protocol Relating to the Status of Refugees, the United
States agrees not to return an alien to a country where his life or freedom would be threatened.
4 A refugee is a person who is unwilling or unable to return to his home country because of a
well-founded fear of persecution on account of race, religion, nationality, membership in a
particular social group or political opinion. The notable difference between a refugee and asylee
is the physical location of the person seeking the status. Those in the United States apply for
asylum, while those abroad apply for refugee status.
5 Section 606 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
Division C of P.L. 104-208.

at sea” issue, Cuba also agreed to use “persuasive methods” to discourage
people from setting sail.
!United States and Cuba reaffirmed their support for the United Nations
General Assembly resolution on alien smuggling. They pledged to
cooperate in the prevention of the illegal transport of migrants and the
use of violence or “forcible divergence” to reach the United States.
!The United States agreed to admit no less than 20,000 immigrants from
Cuba annually, not including the immediate relatives of U.S. citizens.
!The United States and Cuba agreed to cooperate on the voluntary return
of Cubans who arrived in the United States or were intercepted at sea.
!The United States and Cuba did not reach an agreement on how to handle
Cubans who are excludable under the INA, but they did agree to continue
discussing the matter.6
!The United States and Cuba agreed to review the implementation of this
agreement and engage in further discussions.
It became apparent that the 20,000 minimum level per year could not be met through
the INA preference system or the refugee provisions because of the eligibility criteria. In
addition to those Cubans who may qualify to immigrate through the INA preference
system and who may qualify as refugees, the United States decided to use other authority
in the law (i.e., parole), to allow Cubans to come to the United States and become LPRs
through the CAA. Specifically, a “visa lottery” program was established to randomly
select who, among the many Cubans seeking to migrate, receives a visa.
Cuban Migration Agreement, May 1995
On May 2, 1995, the Clinton administration announced a further agreement with
Cuba that resolved the dilemma of the approximately 33,000 Cubans then encamped at
Guantanamo. This new agreement, which came at the time of year when boat people
traditionally begin their journeys, had two new points. Foremost, the United States
allowed most of the Cubans detained at Guantanamo to come to the United States through
the humanitarian parole provisions of the INA. Cuba agreed to credit these admissions
toward the minimum 20,000 LPRs per year from Cuba, with 5,000 charged annually over
three years. Secondly, rather than placing Cubans intercepted at sea in safe haven camps,
the United States began repatriating them to Cuba. Both parties promised to act in a
matter consistent with international obligations and to ensure that no action is taken
against those repatriated. U.S. officials would inform repatriated Cubans about
procedures to legally immigrate at the U.S. Interests Section in Havana. Those charged
with alien smuggling, however, do face prison terms in Cuba.
Interdicted Cubans are given an opportunity to express a fear of persecution if
returned to Cuba. Those who meet the definition of a refugee or asylee are resettled in
a third country. From May 1995 through July 2003, about 170 Cuban refugees were
resettled in 11 different countries, including Spain, Venezuela, Australia, and Nicaragua.
The Department of State (DOS) is required to monitor whether those migrants who are

6 Grounds for removal include health-related grounds; criminal grounds; national security
grounds; Nazi persecution grounds; public charge grounds; illegal entry and immigration law
violations; and lack of proper immigration documents. §212(a) of INA; 8 U.S.C. 1182(a).

returned to Cuba are subject to reprisals.7 In May 2004, DOS noted that it has been
unable to monitor returnees outside Havana since March 2003.
The migration talks are supposed to occur twice yearly. No migration talks have been
held since January 2004, however, because DOS cancelled them due to Cuba’s refusal to
discuss the following key issues: Cuba’s issuance of exit permits for all qualified
migrants; Cuba’s cooperation in holding a new registration for an immigrant lottery; the
need for a deeper Cuban port utilized by the U.S. Coast Guard for the repatriation of
Cubans interdicted at sea; Cuba’s responsibility to permit U.S. diplomats to travel to
monitor returned migrants; and Cuba’s obligation to accept the return of Cuban nationals
determined to be excludable from the United States.8
As a consequence of the migration agreements and interdiction policy, a “wet
foot/dry foot” practice toward Cuban migrants has evolved. Put simply, Cubans who do
not reach the shore (i.e., dry land), are returned to Cuba unless they cite fears of
persecution. Those Cubans who successfully reach the shore are inspected by DHS and
generally permitted to stay in the United States and adjust under CAA the following year.
The United States continues to conduct in-country refugee processing in Cuba.9
USCIS reports that in FY2004, it considered 8,658 Cubans for refugee status and
approved 5,670 (65%). In FY2005, it approved 4,090 of the 6,594 refugee applicants
(62%). 10
Coast Guard Interdictions
Since the May 1995Figure 1. Maritime Interdictions of Cubans,
agreement, the U.S. CoastFY1995-FY2006

Guard has interdicted about

15,000 Cubans at sea and30002,810

returned most of them to2500
Cuba. Interdictions were low
during the first few years2000
after the migration agreement
(e.g., 411 in FY1996, and1500
421 in FY1997). The number
of Cuban interdictions more1000
than doubled between
FY1997 and FY1998 —500
when 903 Cubans were
interdicted — and reached1995199619971998199920002001200220032004200520060

1,619 in FY1999.

Interdictions gradually dippedSource: CRS presentation of U.S. Coast Guard data.
7 Pursuant to § 2245of P.L. 105-277, DOS makes a semi-annual report to Congress on the
treatment of those returned.
8 U.S. Department of State, State Department Regular Briefing, Richard Boucher, Jan. 7, 2004.
9 CRS Report RL31269, Refugee Admissions and Resettlement Policy, by Andorra Bruno.
10 E-mail correspondence from the Office of Refugee Affairs, USCIS, DHS, Jan. 17, 2006.

from 1,000 in FY2000 to 666 in FY2002. Interdictions hit an 11-year high of 2,810 in
FY2006. As of January 10, 2007, the U.S. Coast Guard has interdicted 310 Cubans in
In FY2005, the Coast Guard interdicted 2,712 Cubans, of whom approximately
2,400 expressed a fear of return. Of those, DHS determined that 2.5% had a credible fear
of return to Cuba and were taken to Guantanamo for further screening. At Guantanamo,
47% were found not to meet the refugee definition and were returned to Cuba; 22% chose
to voluntarily return to Cuba; 31% were found to have a well-founded fear and were
referred to DOS for third country resettlement.12
Special Cuban Migration Lottery
Since the 1994 migration agreement, the United States has conducted three visa
lottery open seasons to implement the Special Cuban Migration Program. The three open
seasons were at two-year intervals: FY1994, FY1996, and FY1998. The number of
qualifying registrants has increased each year, from 189,000 in 1994, to 433,00 in 1996
and to 541,00 in 1998. Cubans qualifying through the 1998 lottery are still being paroled
into the United States.
Eligible registrants must be Cuban citizens between 18 and 55 years of age. They
also must be able to answer “yes” to two of the following three questions. Have you
completed secondary school or a higher level of education? Do you have at least three
years of work experience? Do you have any relatives residing in the United States? Once
selected through the lottery, the successful applicants are given parole status with a visa
that is good for six months. The medical examination, required of all potential
immigrants, is good for one year. Spouses and minor children may accompany the
successful registrants. Over the years, there have been reports of barriers the potential
Cuban parolees face, such as exorbitantly-priced medical exams, exit visas fees, and
repercussions for family
members who remain inFigure 2. LPRs from Cuba, FY1981-FY2005

Cuba. Thousands
Trends in Cuban!!!33,587
Admissions ! ! !30
In terms of total!!!20
immigration from Cuba (i.e.,!!!
as immediate relatives of U.S.!!!
citizens, as legal immigrants!!!!!!!!!10
through the preference
system, as refugees, as
parolees or other adjustments9819839859879899919939959979990010030050
through CAA or through the1111111111222
Nicaraguan Adjustment andSource: CRS presentation of DHS Office of Immigration Statistics data.
11 For interdiction data, see []
12 E-mail correspondence from the Office of Refugee Affairs, USCIS, DHS, Jan. 17, 2006.

Central American Relief Act), more than 462,000 Cubans have become LPRs since
FY1981. Of that number, more than half have become LPRs since the 1994 migration
agreements. Cuba consistently ranks among the top 10 source countries for LPRs .
Reoccurring Issues
A well-publicized incident in June 1999 provoked outrage when the U.S. Coast
Guard used pepper spray and a water cannon to prevent six Cubans from reaching
Surfside Beach in Florida. A few weeks later, a woman drowned when a boat capsized
during interdiction. Notably in late November 1999, the U.S. Coast Guard opted to bring
six-year old Elian Gonzalez and two other survivors of an ill-fated journey to the United
States rather than taking them to Cuba as the migration agreement provides.
On March 18, 2003, the Cuban government began a massive crackdown on
independent journalists, leaders of independent labor unions and opposition parties, and
other democracy activists. On April 11, 2003, the Cuban government executed three men
who had hijacked a ferry in Havana on April 2 in an attempt to reach the United States.
The men were executed by firing squads after summary trials that were held behind closed
doors. International human rights groups, such as Amnesty International and Human
Rights Watch, and a number of countries, including Mexico, the European Union, and the

15-nation Caribbean Community, condemned the crackdown and the executions.13

In July 2003, a dozen people reportedly stole a Cuban-flagged boat from the marina
where it was docked in Cuba and kidnaped the three watchmen guarding the marina in the
process. When the boat was in international waters allegedly on route to Florida, Coast
Guard officials tried to intercept it and reportedly faced violent resistence when they
interdicted the vessel. All 15 persons on board were taken to the U.S. Coast Guard cutter
and interviewed by a USCIS asylum officer. The three watchmen indicated a desire to
return to Cuba. When the Cuban government offered to sentence the 12 persons
implicated in crimes (purportedly boat theft, kidnaping, and assaulting federal officers)
to10 years in prison, the United States agreed to return them.
On January 5, 2006 the Coast Guard found 15 Cubans, including 4 women and 2
children, on an old Key West bridge that is no longer connected to land. The decision to
repatriate the Cubans was made by the Coast Guard’s legal office in conjunction with
Immigration and Customs Enforcement. The Coast Guard stated that the Cubans “were
determined to be feet-wet and processed in accordance with standard procedure.”14
Supporters of these repatriation decisions argue that it is critical to the deter illegal
and dangerous migration of Cubans who flee on unseaworthy or overcrowded vessels.
They further maintain that the negotiated prison sentences were essential to prevent a
repeat of summary executions that occurred to the hijackers in April. Critics of these
decisions assert that both countries (United States and Cuba) are denying these people
their rights to due process and a hearing. Some are calling for a full investigation of these
incidents, and some are seeking an end to the current interdiction and repatriation policy.

13 CRS Report RL32730, Cuba: Issues for the 109th Congress, by Mark Sullivan.
14 Florida Sun-Sentinel, “Cubans repatriated after feds say abandoned Keys bridge is not U.S.
soil,” by Madeline Baró Diaz, Jan.10, 2006.