BY HELEN YAFFE

In 2022, an unprecedented number of Cubans arrived in the United States through irregular, or ‘illegal’ channels. Historically the United States has encouraged and weaponised Cuban emigration. Cuban migrants fuel US propaganda about the failure of socialism and about political persecution and the lack of freedom and human rights on the island. However, it is an issue which can spiral out of control, forcing US administrations into dialogue with the Cuban government in the past. The current surge is creating political problems for President Biden as his opponents exploit the issue for electoral gain. As a result, in January 2023 the administration introduced legislation that it hopes will halt the wave of ‘illegal’ Cuban entrants and that threatens to undermine the blanket privileges granted to Cubans in the United States. However, until the United States alleviates the punishing blockade that is suffocating the Cuban people, economic hardship will continue to drive Cuban emigration. The United States’ policy towards Cuban migrants is characterised by paradox and contradictions.

In 2022, over 313,000 Cubans arrived in the United States, most of them without visas and entering from Mexico. This is more than double the previous peak of Cuban migration during the Mariel Boatlift of 1980. They were admitted after claiming asylum. However, these are economic migrants. Once settled, like many of the Cubans who preceded them, most will return to the island when possible to visit their families without the slightest fear of retribution from Cuban authorities.

Pull factors: Cubans are drawn to the United States by the unique privileges that Cuban migrants receive there; one year and one day after arrival, Cubans can petition for permanent residency under the Cuban Adjustment Act, whether they arrived legally or not and without needing to claim asylum or refugee status. Although formally discretionary, permanent residence is systematically granted. Cubans are the only nationals to receive this privilege in the United States. They resort to irregular channels and long, complicated journeys because from 2017 to 2022 legal channels for Cubans to travel to the United States for any reason or duration (study, work, family reunification, or residence) were effectively closed. In November 2021, the Nicaraguan government removed the visa requirement for Cuban travellers. This gave Cubans an alternative route: instead of risking the perilous Florida Straits seaborne, they could fly to Nicaragua and risk the journey north through Central America and Mexico, treading the same path as millions of Latin Americans en route to the United States. In the last fiscal year, more than two million people were arrested trying to cross into the United States, a 24% increase on the previous year. For many, the journey subjects them to human traffickers and criminal gangs who make a lucrative trade from migrant desperation.

Push factors: Those Cubans leave behind an economy in crisis as a result of suffocating US sanctions and the Covid-19 pandemic. The resulting scarcities and shortages of food, fuel, medicines, have made daily life exhausting. Economic problems have been compounded by inflation, following currency reunification and global prices rises. Even the US Department of Homeland Security (DHS) acknowledged these factors in a 9 January 2023 report on high and rising numbers of Cubans encountered at the Southwest border and interdicted at sea: ‘Cuba is facing its worst economic crisis in decades due to the lingering impacts of the COVID-19 pandemic, high food prices, and economic sanctions’.^[1]

Between 2017 and 2021, the Trump administration pursued a ‘maximum pressure’ strategy against Cuba, introducing 243 new sanctions, actions and coercive measures. Among those contributing to the rise in irregular emigration are:

+ Withdrawal of US consular services in Cuba in 2017. This ripped up previous Migration Accords under which the United States committed to issue 20,000 visas annually to Cubans for travel to the United States and suspended the Cuban Family Reunification Parole Programme, cruelly wrenching families apart. Cubans applying for visas were instructed to travel overseas to do so, with no guarantee of success.

+ Eliminating legal channels for Cubans in the United States to send remittances to their families back home, to support them through the pandemic and to cope with rising prices. Cash remittances are estimated to have fallen by nearly $1.8 billion from 2019 to 2021. Individuals’ consumption fell and national revenue was hard hit. Complicated and costly alternative channels had to found for sending cash.

+ Returning Cuba to the US list of State Sponsors of Terrorism, obligating international banks and financial institutions to categorise Cuba as ‘high risk’, placing it on their list of sanctioned countries, for which all transactions are avoided whether by individuals, businesses or the Cuban government, and regardless of their character; payment for goods and services, remittances or donations.

In 2020 and 2021, Cuba’s GDP plummeted 13%. Unlike most countries, because the United States blocks Cuba’s access to international financial institutions, Cuba has no lender of last resort to help it through economic crises.

President Biden left these suffocating measures in place, adding sanctions of his own in response to the 11 July 2021 protests in Cuba. In May 2022, Biden announced small steps would be taken to loosen Trump-era restrictions. Flights and travel from the United States were permitted to increase. The Cuban Family Reunification Parole Programme resumed from August 2022, after a five year suspension, and consular services in Havana were reopened from 3 January 2023. Restrictions on remittance amounts were lifted, but the Cuban financial institution which processed the cash transfers remained prohibited, so sending remittances remained complicated and costly in 2022.

The Cuban Adjustment Act and the ‘wet foot, dry foot’ policy

The Cuban Adjustment Act of 1966 applies to any Cuban inspected and admitted or ‘paroled’ into the United States after 1 January 1959. Initially the Act gave Cubans the right to request permanent residence after two years, but an amendment in 1976 reduced this to one year. Historically, those caught entering the United States without a visa were released by the DHS under ‘parole’ and instructed to turn up to a subsequent court hearing, which could take longer than their wait for permanent residency. Until the mid-1990s, Cubans only had to reach United States territorial waters to be eligible. This changed after the ‘rafters’ crisis’ of the early 1990s when, driven by the severe economic crisis following the collapse of the socialist bloc, known as the Special Period, tens of thousands of Cubans set out to cross the Florida Straits on rafts. In 1994, the US administration under President Clinton panicked about the influx of up to 45,000 Cuban rafters and entered talks with the Cuban government in which it was agreed that US authorities would stop admitting Cubans intercepted in US waters. From 1995, Cubans caught at sea by US coastguards (with ‘wet feet’) were sent back to Cuba or a third country, while those reaching the shore (with ‘dry feet’) could enter and be given parole.

In 2017, to disincentivise irregular Cuban immigration, President Obama eliminated the ‘wet foot, dry foot’ policy and instructed the DHS not to issue parole to Cubans entering illegally. Without parole, they should be disqualified from the Cuban Adjustment Act. Cuban-American immigration lawyer, José Pertierra, explains that the DHS simply changed the name of the mechanism used to release undocumented Cubans, from ‘parole’ to an ‘Order for Release on Recognizance’ (ORR). Then in 2021 an immigration judge in Miami effectively ruled that the ORR is parole by another name. This interpretation was followed by many immigration judges who continued to grant residency (under the Cuban Adjustment Act) to Cubans holding an ORR; the ‘wet foot/dry foot policy’ was back. This spurred irregular migration because, as Pertierra explains, Cubans entering the US border from Mexico knew, ‘that just by stepping on US soil they would receive permanent residence in the United States, even without having to seek asylum or claim persecution in their home country. Cubans continued to enjoy the privilege that US immigration laws have given them for decades.’^[2]

Undermining Cuban ‘privilege’ through Title 42

On 9 January 2023, the Biden administration announced that a pandemic-related immigration policy introduced under Trump, Title 42, would be extended to send ‘illegal’ immigrants from Cuba, Nicaragua and Haiti caught crossing the US-Mexico border back to Mexico. Title 42 was initially introduced in March 2020 allowing border police to rapidly expel migrants, even those seeking asylum, on the pretext of slowing the spread of Covid-19 through detention centres. Biden had committed to eliminating Title 42 but has been blocked pending a ruling by the Supreme Court. In October 2022, his government began using Title 42 to expel Venezuelans from the United States. It simultaneously announced that 24,000 visas would be allocated annually to Venezuelans who apply online from outside the United States and have a US-based sponsor. There has apparently been a 90% reduction in Venezuelans arriving undocumented at the US border since then.

From 9 January 2023, Cubans, Haitians and Nicaraguans were included in the scheme. If Cubans caught at the US-Mexico border, or in the United States without documents, are expelled to Mexico, they will not be eligible for residence under the Cuban Adjustment Act. This ruling will likely face legal challenges on the basis of asylum laws. However, Biden announced that the government is preparing another regulation that disqualifies for asylum anyone who, en route to the United States, passes through a third country and does not apply for asylum there. ‘In other words, they want to close the border to Cubans trying to cross illegally’, concludes Pertierra. Trump’s efforts to pass similar legislation were blocked by federal courts. Although Title 42 cannot be applied retrospectively to recent Cuban immigrants, the courts could apply a strict interpretation of ‘parole’ and exclude them from the Cuban Adjustment Act. Their alternative would be to pursue an asylum claim but that requires evidence of fear of persecution, which will be hard for most Cubans to provide, even to biased US courts.

The Biden administration also announced that 30,000 visas will be granted every month to Cubans, Haitians, Nicaraguans and Venezuelans who apply from outside the United States, have a US-based sponsor and undergo a rigorous background check. Citizens from those countries who cross irregularly will not be eligible for the US parole process and will be liable to expulsion to Mexico.

Small steps

On 3 January 2023, the US consulate in Havana finally resumed processing visas for Cubans. The online system for managed migration is operating and the first travel authorisations being processed. On 11 January, the US money transfer company, Western Union, announced that it had resumed sending remittances from the United States to Cuba on a limited basis. In the first three weeks of January, over 1,000 Cubans intercepted at sea en route to the United States were deported to Cuba. On 18 and 19 January, US and Cuban officials met in Havana for bilateral talks on law enforcement (terrorism, migrant smuggling, and immigration fraud); it was the first talks on these issue since 2018 and the third high-level meeting between the US and Cuban governments in less than a year. On 25 January, the DHS announced that unlawful crossings at the Southwest border by Cubans, Haitians, Nicaraguans, and Venezuelans had declined 97% compared to the previous month; the seven-day average had fallen from 3,367 per day on 11 December 2022 to 115 on 24 January 2023

Ending the US blockade of Cuba

‘The magnet that attracts immigrants historically has always been the economy’ points out Pertierra. ‘To get out of poverty, people are willing to scale steel walls and legal hurdles. Washington knows this and that is why it is investing $3.2 billon dollars to strengthen the economic infrastructure of El Salvador, Honduras and Guatemala.’ While irregular immigration to the United States of nationals from those countries has declined, it has soared from Cuba, Venezuela and Nicaragua, countries being strangled by US sanctions. Pertierra is in no doubt, ‘when the Cuban economic situation improves, the illegal immigration of Cubans will decrease enormously. We’ve seen it before.’ He concludes, ‘If the Biden administration wants to reduce the illegal immigration of Cubans into the United States, it will have to do more than grant a limited amount of parole and try to seal the border. It must stop suffocating Cuba and allow it to breathe.’

Source: Counter Punch