Undocumented Cuban migrants now face voluntarily return, deportation or asylum

This Jan. 1, 2015 photo provided by the U.S. Coast Guard shows 24 Cuban migrants in the waters south of Key West, Fla.
This Jan. 1, 2015 photo provided by the U.S. Coast Guard shows 24 Cuban migrants in the waters south of Key West, Fla. AP

For decades, American immigration authorities have essentially greeted Cuban migrants who have arrived on U.S. soil without visas as if they were documented immigrants — detaining them briefly only for background checks and then quickly admitting them into the country with an automatic parole certificate, which allowed them to apply for permanent residence after more than a year in the country.

That welcoming stance changed radically Thursday when the Obama administration repealed the so-called “wet foot, dry foot” policy under which undocumented Cuban migrants who reached American territory were allowed to stay and eventually get green cards and U.S. citizenship, while those interdicted at sea were generally returned to Cuba or taken to the Guantánamo Naval base for possible relocation to a third country.

While the sea interdictions remain unchanged, now Border Patrol agents and Customs and Border Protection officers at the Mexican border, the beaches of South Florida and Puerto Rico and the nation’s international airports are under new instructions to handle Cubans who arrive without visas in the same way they deal with other undocumented foreign nationals.

That means that the Cuban migrants will be given an opportunity to voluntarily return to their country or be placed in deportation proceedings, unless they request asylum which — if denied — would lead to removal proceedings and likely a deportation order from an immigration judge.

Cuban migrants who reach U.S. soil will no longer be automatically issued a parole document and admitted into the country. They can still qualify for a parole, like other foreign nationals, but now strictly on a case-by-case basis.

“Starting today, the Department of Homeland Security will no longer give special preference to parole requests made by Cuban nationals who reach the United States,” according to a DHS official contacted by email. “Instead, those requests will be considered on a case-by-case basis like requests presented by nationals of any other country.”

The Department of Homeland Security will no longer give special preference to parole requests made by Cuban nationals who reach the United States.

DHS statement

Although American immigration officials have not released specifics on precisely how the Cubans will be treated, in general — they say — they will be accorded the same treatment other undocumented foreign nationals receive: the options they face at the border, the beaches and the airports.

Asked in an email whether those options — voluntary departure, temporary detention, credible fear interviews, asylum procedures and deportation proceedings — will be accorded the Cubans, a DHS official replied: “Yes, that is accurate.”

If the new process for Cubans leads to deportation proceedings, repatriation would not be take place soon after arrival. It could be a process that may take weeks, months, perhaps even years.

If the Cuban is in detention, immigration authorities are likely to try to deport that person within six months of arrival because 180 days is the maximum length of time that the U.S. Supreme Court allows American officials to hold a foreign national in a lockup — unless “it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.”

In the case of Cubans who show up on the beaches, the border or the airports without visas, deportation could be relatively quick, if they don’t seek asylum.

That’s because, under new migrant accords, Cuba has agreed to take back the Cuban migrants denied admission to the United States after the new policy took effect Thursday afternoon.

“Going forward, if a Cuban migrant arrives here illegally, the Cuban government has agreed to accept that person back,” Department of Homeland Security Secretary Jeh Johnson said in a telephone news conference Thursday night. “Those Cuban migrants who arrive in the United States illegally...will be subject to deportation consistent with our laws and our immigration enforcement priorities.”

The deportation process, however, could take much longer if the Cuban migrants ask for asylum.

The case would wind up in immigration court where a judge would decide the issue. If the judge rejects the asylum request, the punishment is deportation. However, the migrant can appeal to the Board of Immigration Appeals and the process can take a long time because of a severe backlog in the courts.

“The process could take years, three to four years, in the current overcrowded process of immigration courts,” said Wilfredo Allen, a Miami immigration attorney.

Two other issues have yet to be explained by immigration officials: what happens to Cubans who arrive with visitor visas, who then overstay and seek residence after more than a year in the country; and the fate of at least 35,000 Cubans who already have final orders of deportation because of criminal convictions in the past.

Johnson made it clear that the new policy mainly covers undocumented Cuban migrants arriving after the policy change.

“It’s a prospective policy,” Ben Rhodes, President Barack Obama’s deputy national security adviser, told Thursday night’s telephone news conference. “Going forward, the Cubans will be taking people back.”

Follow Alfonso Chardy on Twitter: @AlfonsoChardy