A clash between U.S./Cuban migration laws contributes to Central America refugee crisis

Cubans camp out at the Peñas Blancas border crossing in Costa Rica. Many of the migrants have been there since the weekend, when Nicaragua closed its border to Cubans, amid swelling numbers.
Cubans camp out at the Peñas Blancas border crossing in Costa Rica. Many of the migrants have been there since the weekend, when Nicaragua closed its border to Cubans, amid swelling numbers.

When Cuba changed its migration policies three years ago, eliminating the reviled tarjeta blanca or exit visa and allowing its citizens to come and go more freely, the handwriting was on the wall: its new regulations were on a collision course with current U.S. migration policies for Cubans.

Cubans have long been the beneficiaries of two specialized policies, the Cuban Adjustment Act and the wet foot/dry foot doctrine that give them preferential treatment to stay in the United States — even if they enter without a visa or hire smugglers to bring them here.

Under Cuba’s migration reform, Cubans are allowed to stay outside the island for up to two years — rather than the former limit of 11 months — without losing their rights as citizens. Because the Cuban Adjustment Act allows them to apply for permanent residency in the United States after a year that means Cubans can get green cards, work in the United States and still freely return to Cuba before their 24 months expire, live on the island for awhile and then return to the United States.

The new Cuban policy also means that Cubans who can get visas to countries within striking distance of the United States, or who travel to Ecuador and a handful of small islands in the hemisphere that don’t require entry visas for Cubans can much more easily position themselves for a leap to their ultimate goal: U.S. soil.

With more than 2,000 Cubans, many of whom started their journeys northward from as far away as Ecuador, marooned at the Costa Rican border because Nicaragua refuses to let them enter its territory, the debate over the Cuban Adjustment Act and wet foot/dry foot, which allows those who reach U.S. shores to stay and returns most Cubans picked up at sea, has intensified.

Are U.S. policies a siren call luring Cubans to the land of plenty, an anachronism of the Cold war in light of Cuba’s new relationship with the United States, or still necessary for those fleeing oppression?

When it was originally conceived, the 1966 Cuban Adjustment Act was intended to give status to Cubans who had fled to the United States after the 1959 Revolution and then found themselves unable to return to Cuba and in legal limbo in the United States.

But now it’s used by people who can come and go.

Medicaid fraudsters, criminals, and others who have figured out how to play both the U.S. and Cuban systems are among those who have availed themselves of the loophole opened by the incongruity in the two countries’ policies.

And this revolving-door phenomenon has piqued the ire of some in South Florida.

Gary Cardenas, a Cuban-American who arrived in October 1959 and became an American citizen in 1965, said the new wave of Cubans is coming to the United States “to take advantage of the great tax-dollar freebie, thanks to our hard-earned money.” Sometimes, he said, it seems that recent arrivals get more benefits than Cubans who have lived and worked in the United States for decades.

The ex-wife of one his co-workers, he said, got a voucher for subsidized Section 8 housing but never lived in the apartment she found. Instead, she sublet it, went back to Cuba, bought an apartment there and has her son send her the rent checks and other benefits she is eligible for in the United States. “Shut down the Cuban Adjustment Act now,” Cardenas said.

“When you have people who are coming and a year and a day later are traveling back to Cuba 15 times a year, 12 times, 10 times, eight times, that doesn’t look like someone who is fleeing oppression,” Republican presidential hopeful and Florida Sen. Marco Rubio told the Associated Press Thursday. “And other people turn to us and say, ‘What’s the justification for this special status?’ That’s a very legitimate point.”

Richard Feinberg, a professor of international political economy at the University of California, San Diego, said the CAA is “such an obvious inducement; it treats Cuba as an exceptional case. I think we’re now seeing the consequences of this anomaly in Central America. People have different motives for leaving Cuba, but it’s not like they’re fleeing a violent situation and unrest.

“The assumption has been the Cuban-American delegation has had a stranglehold on the issue in Congress,” said Feinberg, who was senior director of the National Security Council’s Office of Inter-American Affairs during the Clinton administration.

But the belief that the CAA is untouchable in the Cuban-American community may be an antiquated notion, and even Cuban-American members of the South Florida congressional delegation say they are willing to take a second look at it.

Republican Rep. Carlos Curbelo said he is working on a legislative solution that would preserve the “path to freedom for the dictator’s victims while eliminating rampant abuses of our nation’s generosity.”

He wrote a letter to President Barack Obama last week expressing his concern over the spike in Cuban arrivals since the administration’s new Cuba policy went into effect and asking how the president intended to manage the influx and “assist local and state government in finding the resources necessary to handle this emerging crisis.”

In the recently concluded fiscal year, 45,000 Cubans presented themselves at U.S. checkpoints along the Texas border with Mexico and asked to be admitted to the United States under the Cuban Adjustment Act.

“There should be no back and forth traffic to Cuba for those who choose to use the CAA to obtain U.S. residency because these individuals are abusing the system to jump in line over every other refugee,” said Rep. Ileana Ros-Lehtinen. “Those who wish to travel back to Cuba should use the normal immigration process and not use the CAA.”

Ros-Lehtinen said she’s been a long-time opponent of the wet foot/dry foot policy because it encourages Cubans to risk their lives to cross the Florida Straits — although she said it’s necessary to confront the root cause that is driving the exodus: “the Castro Communist dictatorship.”

Rubio told the Associated Press that he’s open to modifying the Cuban Adjustment Act — although he also said he would immediately roll back much of Obama’s opening toward Cuba if elected.

Rep. Paul Gosar, R-Arizona, has filed a bill, H.R. 3818, that would eliminate the Cuban Adjustment Act, end wet foot/dry policy and put Cubans on the same footing as anyone else seeking to come to the United States. He said these amnesty policies are “costing taxpayers billions of dollars.

“If President Obama has normalized relations with Cuba, why would we treat illegal immigrants from that nation any different than those from other countries?” Gosar asked. “My legislation is a commonsense solution that will level the playing field and end the outdated policies that provide amnesty to Cuban aliens and criminals.”

The bill, which has eight co-sponsors, has been referred to the House Judiciary Committee but given the current fractious Congress in an election year, it is given little chance of passage this year.

However, Washington attorney Robert Muse said it’s not necessary for Congress to repeal the Cuban Adjustment Act because it is just enabling legislation and it is up to the discretion of the U.S. Attorney General whether to parole a Cuban into the United States. The CAA states that a Cuban who has been present in the United States for at least a year “may be adjusted by the Attorney General... and lawfully admitted for permanent residence.”

“It doesn’t say the administrative branch has to do anything,” said Muse. In his reading of the act, “President Obama could rescind it tomorrow morning. It’s purely within the jurisdiction of the executive branch.”

But Miami immigration lawyer Ira Kurzban has said the Adjustment Act is in the hands of Congress. He also points to a 1996 law that says it can’t be changed until the president certifies that a democratically elected government is in power in Cuba. But he agrees that wet foot/dry foot is not a statute and open to interpretation.

“There are so many contradictions in all of this,” said Muse, “but I’m perplexed why people keep talking about the need for Congress to lift this. The Attorney General could stop granting permanent residence tomorrow, leaving any Cuban who arrives in the U.S. without a valid visa in the same position as any other illegal immigrant.”

The State Department reiterated last week that the United States has “no plans to change its immigration policies with regard to Cuba.”

Comments on social media also indicate that at least some members of the Cuban-American community might not be so welcoming to the latest wave of Cubans who are stuck in Central America. They’ve questioned why the Cubans have been so insistent and willing to protest in Central America when they have failed to protest Cuban government policies on the island. “Cobardes (cowards),” reads more than one Facebook post.

Andy Gomez, a Cuba analyst and retired University of Miami vice provost, said he was shocked by the comments he has read from some people he knows. “I think there’s a great apathy toward Cuba on the part of Cuban-Americans now and it seems some of them have forgotten how many of our parents and grandparents came here.”

He thinks the Cuban Adjustment Act should stay in place “until the human rights situation improves in Cuba.”

Marcie Soto, a Hialeah Gardens retiree who came to South Florida from Cuba as a 10-year-old, said she hasn’t forgotten but she finds this new generation of Cubans different. “The Cuban Adjustment Act was created to protect those whose life was in danger, like my father who died without ever going back,” she said. “What is happening today is a joke.”

A reevaluation of the Cuban Adjustment Act is way overdue, she said. “I’m sick and tired of my tax dollars going to programs for people that don’t deserve it. These Cubans are in no way, shape, or form like the Cubans of mine and my parents’ generation. They are the creation of a socialist regime that has gotten them used to government dependency.”

But the feeling isn’t universal. Juan Tomás Sánchez, a Cuban-American engineer who lives in Miami, said the Cuban Adjustment Act should remain in place and the Cubans now in Central America should be able to use it. “Risking lives and miles trekking through jungles and guerrillas makes you a refugee, not a migrant,” he said.

And not all the newly arrived Cubans are here to cash in on social benefits. “We’ve seen young people, well-educated people — doctors, dentists. There’s s a tremendous brain drain going on. What Cubans need now are more economic opportunities — and hope — so they don’t want to leave,” said Carlos Saladrigas, a business executive and chairman of the Cuban Study Group.

In the past, large exoduses of its people have served as a safety valve for Cuba, but now, with a rapidly aging population, it needs to adopt policies that will keep young people on the island, analysts say.

Cuba’s Foreign Ministry has taken aim at not only the wet foot/dry foot policy for causing the Central American crisis but also a 2006 law that allows Cuban medical personnel providing services in third countries to enter the United States as the key factors disrupting legal, safe and orderly migration of Cubans to the United States.

While the Cubans have blamed “politicized” U.S. immigration policies, some members of South Florida’s Cuban-American Congressional delegation are pointing the finger instead at the Obama administration’s rapprochement with Cuba.

“There is a direct correlation between President Obama’s misguided policies toward the Castro regime and the dramatic increase of Cubans fleeing the island,” said South Florida Republican Rep. Mario Diaz-Balart. “When the Castro regime encounters weak administrations, as it has with Presidents Carter, Clinton and Obama, it cynically uses the desperation of the Cuban people to press for ever more concessions on migration and other policies.”

Foreign ministers from the Central American Integration System are expected to meet Tuesday in El Salvador to discuss the exodus, and the United States and Cuba may also take a crack at their rocky migratory relationship soon. Earlier this month at a meeting of the Cuba-U.S.Bilateral Commission, Cuba said a dialogue would be scheduled soon on migration and people trafficking.

This article includes comments from the Public Insight Network, an online community of people who have agreed to share their opinions with the Miami Herald and WLRN. Become a source at

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