Diplomacy, election could decide fate of 28,400 Cuban felons facing deportation

President Barack Obama and Cuban President Raul Castro sit together for members of the media before a bilateral meeting, Tuesday, Sept. 29, 2015, at the United Nations headquarters.
President Barack Obama and Cuban President Raul Castro sit together for members of the media before a bilateral meeting, Tuesday, Sept. 29, 2015, at the United Nations headquarters. AP

For the past year, the leading Republican presidential candidates have drawn a hardline on deporting illegal immigrants — especially front-runner Donald Trump, who has promised to build a towering wall along the U.S.-Mexican border to stop others from crossing.

But none of them has ever mentioned another thorny immigration issue that hits closest to home in Miami: What to do with 28,400 Cuban nationals convicted of crimes — including more than 2,000 murders — who have served their prison terms and face automatic deportations to Cuba under U.S. law?

For decades they have been allowed to live in Florida and other parts of the United States under the supervision of immigration authorities because the federal government has had no diplomatic relations with Cuba since the early 1960s. Of the total facing deportations, some 18,000 live in Florida.

But with President Barack Obama formally re-establishing relations with Cuba last year, thousands of convicted Cuban citizens in the United States could now potentially face so-called final orders of removal to their homeland.

It’s uncertain how much the issue might stir up presidential candidates competing in Tuesday’s Florida primaries — but the eventual winner of the White House will likely be left with making difficult decisions. Should all of the Cuban felons be sent back, or just the violent offenders and drug traffickers? No one has conducted voter polls on the under-the-radar issue.

“Ten or 15 years ago, this issue [of deporting Cuban felons] would have caused a lot of consternation within the Cuban American community,” said Dario Moreno, an associate professor at Florida International University. “But today, I don’t think there’s going to be much sympathy for them.”

For now, Havana officials have made it clear they don’t want any of them back. And the Obama administration has said it “has no plans to change” its “current immigration policy toward Cuba” — meaning a diplomatic stalemate persists over the pending removal orders of Cuban felons, according to the Department of Homeland Security.

But given the slow pace of U.S.-Cuba talks over more pressing issues such as trade — Obama plans to make an historic visit to the island later this month — the fate of Cuban felons living on U.S. soil will likely be answered by his successor in the White House.

Generally speaking, the Obama administration has aggressively enforced U.S. law requiring the deportation of other foreign nationals with criminal convictions: more than one million felons have been sent back to their countries since 2009, mostly for immigration and drug-trafficking offenses, records show. But similar actions have rarely been pursued against Cubans in decades, largely owing to Havana’s refusal to take them back.

Marcos Jimenez, a former U.S. attorney in Miami, said deporting Cuban felons — as well as the parallel American interest in bringing to justice fugitives hiding on the island — should be at the “forefront” of Obama’s discussions with Havana officials, or those of any future president for that matter.

“The president has a duty to enforce U.S. law and to uphold the Constitution,” said Jimenez, a Miami lawyer who was appointed as U.S. attorney by President George W. Bush. “In order to do that, he has to be consistent.

“If the law requires him to deport [all foreigners with convictions], then he should do that. If the law requires him to go after fugitives wanted for crimes committed in the United States, then he should do that, too,” Jimenez said. “He needs to step up and bring these issues to the forefront.”

U.S. Rep. Carlos Curbelo, R-Miami, shared his view, calling current U.S.-Cuba immigration policy “highly dysfunctional.”

“Dangerous criminals should be deported to Cuba at the earliest date possible, while those guilty of minor offenses should be given the opportunity to stay once they have paid their debts to society,” Curbelo told the Miami Herald.

Other longtime Cuba watchers who work in the criminal justice system acknowledged the complex deportation issue hangs over Miami and could eventually emerge as an issue in the presidential campaign.

“I think it’s a presidential campaign issue, an immigration issue and a Justice Department issue,” said Miami defense attorney Jose “Pepe” Herrera, who has represented numerous convicted Cubans over the decades who now face deportations.

Herrera said some non-violent offenders — including DUI, theft and burglary crimes — might be able to challenge their deportations if they have established roots in this country.

He noted that many Cuban inmates did not anticipate the change in diplomatic relations between the United States and Cuba. Before their release from prison, they signed waivers agreeing to their deportations to avoid immigration detention proceedings — never expecting they would ever be sent back to Cuba.

“Many of these Cubans have lived virtually their entire life in the United States and have significant family ties here, including minor dependent children born in this country,” Herrera said. “The issue is indeed thorny, and I believe many of these Cubans who have signed a waiver in reliance on the existing policy may have grounds to challenge their ‘deportable’ status on a number of legal grounds.”

Unlike other immigrant groups, Cubans were automatically given a special status as political refugees under U.S. law in the years after Fidel Castro’s 1959 revolution. Under the 1966 Cuban Adjustment Act, any Cuban who enters the country can apply for a green card, or permanent legal residency, after one year and a day. They can also apply for U.S. citizenship after five years, if they haven’t committed a crime.

As a result, without a new immigration agreement in place with the Cuban government, the vast majority of Cuban felons who have served their prison terms have been released back into society. That’s because they cannot be detained indefinitely under two Supreme Court decisions in 2001 and 2005 that prohibit the permanent detention of immigrants who cannot be deported. So, in the meantime, they fall under the supervision of Immigration and Customs Enforcement.

There has been only one exception to the no-deportation rule, in the aftermath of the 1980 Mariel boat-lift. The Cuban government had sent several thousand criminals and patients from mental institutions to Florida as part of an exodus of 125,000 Cuban refugees. Afterward, under a 1984 repatriation agreement, U.S. and Cuba officials agreed to a list of 2,746 Cuban citizens who could be deported to the island. Of those, more than 2,200 have been sent back, according to Immigration and Customs Enforcement.

But based on that agreement, Homeland Security officials said they have “little control” over which cases the Cuban government agrees to accept — including felons facing U.S. deportation orders. Indeed, the Havana government has accepted the return of only five Cubans not included on the Mariel list.

In addition, there are 6,700 Cubans facing deportations for non-criminal violations of U.S. immigration laws.

FIU’s Moreno said the Cuban exile community’s attitude toward convicted felons has likely changed with the times — especially since the last major exodus of Cubans in 1994. That led to the “wet foot-dry foot” policy allowing only Cubans who touch U.S. soil to stay.

Over the past two decades, there has been an uptick in federal crimes, such as Medicare and other government fraud, with Cuban suspects fleeing to the island with their stolen benefits — a troubling trend that has a few Cuban American politicians questioning the special political refugee status afforded new immigrants from the island.

During the presidential primary season, Cuba has barely made a blip — even though two Republican candidates are Cuban American. One of them, Florida Sen. Marco Rubio, has pointedly referred to Cubans defrauding the U.S. government as a sign that lawmakers should tighten generous benefit rules for Cuban refugees. But neither he nor Texas Sen. Ted Cruz — nor any other candidate —has delved into the weeds of the Cuban criminal issue.

The broader immigration question, on the other hand, has continued to roil national politics.

Democrats Hillary Clinton and Bernie Sanders have pledged to push for reform and find a path to citizenship for most of the about 11 million people in the country illegally. But Republicans have maintained a harder line — none more than front-runner Donald Trump, who launched his campaign talking about some Mexicans who cross the border as rapists and criminals. (He also insists he'll get Mexico to pay for a “beautiful” border wall, even after the Mexican president has dismissed the notion as nonsense.)

Cruz, abandoning an earlier position, has said he would support mass deportations as president. Rubio has stressed border security but continued to talk about a lengthy citizenship path for some illegal immigrants.

McClatchy Washington correspondent Lesley Clark contributed to this report.