Havana acknowledged Wednesday that only Congress could change U.S. immigration laws for Cubans, but contended that there could be leeway in how the laws are implemented.
Cuban officials have long said they have serious concerns about the Cuban Adjustment Act and the U.S. wet foot/dry foot policy, and they repeated those concerns at U.S.-Cuba immigration talks in Havana.
“They constitute the main incentive and the principal stimulus for illegal immigration and also for illegal entries” into the United States, Josefina Vidal Ferreiro, who led the Cuban delegation to the talks, told reporters.
The adjustment act allows Cubans to be paroled into the United States and to get permanent residency and green cards after they’ve been here for a year and a day. Under the wet foot/dry foot policy, Cubans who reach U.S. shores can stay, even if they are ferried by smugglers, and those who are picked up at sea generally are returned to Cuba.
The migration talks came one day before historic discussions in Havana between the two neighbors about normalizing relations. Roberta Jacobson, assistant secretary of state for the Western Hemisphere, will lead the U.S delegation in the diplomatic talks while Vidal will represent Cuba.
Vidal, who heads the Cuban Foreign Relations Ministry’s North American division, complained Wednesday that U.S. migration policies promote people smuggling. Recently, authorities have found Cubans trying to get to the United States illegally with fake migratory documents, she said.
“Cuba aspires to a normal relationship with the United States in the broadest sense but also in the area of migration,” said Vidal.
Earlier this week, a senior U.S. State Department official said: “I would like to emphasize that there is no plan to change U.S. policy” or the Cuban Adjustment Act, which must be changed by Congress.
In early 2013, Cuba changed its own travel policy. Among the changes was a provision that allows Cuban citizens to travel abroad for up to two years without losing their citizenship benefits. That means they could come to the United States, work legally for awhile and then return to the island.
Cuban criminal rings have used this legal loophole to come to the United States, set up criminal enterprises and then return to the island when things get hot, according to law enforcement officials.
After Cuba and the United States announced their policy shift on Dec. 17, rafter traffic from Cuba picked up dramatically.
Both sides at the migration talks acknowledged that they had agreed to disagree on certain topics but said they planned to continue discussing the complicated issues at future talks.
“The productive and collaborative nature of today’s discussion proves that, despite the clear differences that remain between our countries, the United States and Cuba can find opportunities to advance our mutually shared interests as well as engage in a respectful and thoughtful dialogue,” said Alex Lee, deputy assistant secretary of state for Western Hemisphere affairs, in a statement. He led the U.S. delegation.
Vidal also talked about a “fluid dialogue” and the “constructive spirit” of the talks.
But during a news conference, she suggested that the United States could do more.
“We believe on the Cuban side that since wet foot/dry foot is a policy, therefore it’s in the hands of the government and the executive branch to decide about the application of the law,” she said.
Wet foot/dry foot is not a statute, but rather an interpretation of a court ruling, said Ira Kurzban, a Miami immigration lawyer. “If she [Vidal] means there is some ability to interpret wet foot/dry foot, I suppose that’s true,” he said.
Vidal also suggested there is some leeway in how the Cuban Adjustment Act is implemented.
But Kurzban said not only is the adjustment act in the hands of Congress but a 1996 immigration law goes further saying it can’t be changed until the president certifies that a democratically elected government is in power in Cuba.
Adding to the thicket of Cuban immigration policy is what is known as the Meissner Memo, named after former U.S. Immigration and Naturalization Service Commissioner Doris Meissner. Even if Cubans sneak into the country, the memo states that as long as they immediately present themselves at an immigration office, they can still be paroled into the United State and be eligible for the adjustment act.
Among other topics discussed at the closed-door migration talks, which got underway at 9 a.m. at Havana’s Convention Palace, were return of Cuban excludable aliens [generally those with criminal records], the Cuban Family Reunification Parole Program, and the monitoring of repatriated Cubans.
There are 34,525 Cubans, most convicted of serious crimes, with final orders of deportation and they fear the new relationship with Cuba could mean they will be sent back to the island. At this point, U.S. officials said there has been no change in deportation policy to Cuba.
The migration talks, which alternate between Washington and Havana, are generally low-key but Wednesday’s discussions took place in an extraordinary context with the international media packing the Cuban capital.
NBC anchor Brian Williams, for example, anchored NBC Nightly News on Wednesday from Havana.
On Tuesday night, President Barack Obama called on Congress to lift the U.S. embargo, which has restricted trade to the island for a half-century.
Cuba and the United States generally meet twice annually to discuss the 1994 and 1995 U.S.-Cuba migration accords, which were signed to ensure safe, legal and orderly migration between the two countries. The talks have been held since 1995 — except during a few periods when U.S.-Cuba relations soured.
During talks on Thursday, both sides will discuss the first steps toward getting respective embassies open in Washington and Havana.
Jacobson, who arrived in Havana on Wednesday, planned a working dinner with her Cuban counterparts.
“This new conversation with Cuba is both an historic and important process that will advance U.S. interests. It will strengthen the United States’ ability to advocate for positive change on the island,” the State Department said in a media note.
“By facilitating the Cuban people’s access to greater resources and information, the policy change seeks to engender greater respect for human rights and adherence to democratic principles in Cuba,” it said.
Meanwhile, the decision by some Cubans to take to the risky waters of the Florida Straits is often influenced by frustration over their economic situation, which some said they hoped would improve with renewed ties with the United States.
For 43-year-old Lazaro Lopez, who runs his own business in Havana, the only people standing against better relations are those who are making money by smuggling goods in and smuggling people off the island.
He said the going rate for a boat off the island is between $8,000 and $10,000 and that Cuban exiles from Miami run many of the smuggling rings.
Miami Herald Staff Writer Jim Wyss contributed to this report.