Taking Action to Reflect Current Reality: Obama Administration Ends “Wet Foot, Dry Foot” Policies on Cuban Migration
In its final days, the Obama administration has made a significant immigration policy advance by terminating the “wet-foot, dry-foot” policy that since the mid-1990s has governed a key element of the treatment of Cuban migrants seeking to enter the United States. As Commissioner of the U.S. Immigration and Naturalization Service (INS) during the Clinton administration, I was deeply involved in the negotiation and implementation of wet-foot, dry-foot. I applaud the decision to move on from what had become an increasingly outdated, perverse U.S. stance regarding Cuban migration. The change brings greater uniformity to U.S. immigration policy, especially within the hemisphere.
At the heart of the change is Cuba’s agreement to accept the return of its nationals who seek entry to the United States but are ineligible to remain. For decades, Cuba has refused to take back its nationals who have been ordered deported. At the same time, since 1966, the United States has had special legislation—the Cuban Adjustment Act—which treats all Cubans as refugees. Under terms of the law, Cubans who arrive in the United States are eligible for legal permanent residence (getting a green card) one year after arrival. Under a separate 1980 law, certain Cubans are also eligible for welfare benefits similar to refugees. No other nationality group has such preferential or immediate access to green cards and welfare benefits, which include financial support, medical benefits, and other assistance. Cuba has vigorously protested the U.S. policies as an invitation to emigrate and has treated those who have tried or succeeded as traitors to the revolution.
Given this reality, U.S. policy had been to grant parole to Cubans who made it to U.S. territory (dry foot) because Cuba would not accept their return—as required by long-standing international consular agreements and practices—and because within one year they would be eligible to get a green card. With Cuba’s agreement to accept return, the U.S. policy of granting parole could be altered. The policy change is an essential step in the normalization of relations that President Obama initiated with Cuban President Raul Castro in December 2014, and that resulted in a landmark agreement one year later.
Re-establishing ties severed more than a half century ago when Fidel Castro seized power led to a dramatic spike in Cuban arrivals. Anticipating that warming relations would lead the United States to end its preferential treatment of Cuban émigrés, tens of thousands got previously unobtainable exit permits from the Cuban government and traveled by land routes through South and Central America to reach the U.S.-Mexico border. These flows have increasingly resembled those from other countries where migration is driven by a mixture of humanitarian and economic reasons.
In addition to the challenges these increased Cuban arrivals pose for U.S. border officials, the surge has created problems for countries in Central America where Cuban migrants have transited and sometimes been trapped amid shifting border and visa policies in the region. In an August 2016 letter to U.S. Secretary of State John Kerry, the foreign ministers of nine countries in Latin America accused the United States of fomenting a migration crisis in the region by continuing its Cold War-era policies even after thawing relations with Cuba.
Cuban arrivals in the United States by land have nearly doubled since fiscal year (FY) 2014, rising from 25,338 to more than 48,500 as of July 2016 (see Table 1). Interdictions of Cubans at sea by the U.S. Coast Guard have more than doubled during the same period; these “wet-foot” cases have been and will continue to be promptly returned to Cuba.
Table 1. Unauthorized Cuban Migrants Interdictions at Sea and Arrivals by Land, FY 2010-16
*FY2016 data on Cubans arriving at a port of entry (POE) are as of July 31, 2016; other FY2016 data are for the full year.
Source: Congressional Research Service (CRS), U.S. Policy on Cuban Migrants In Brief (Washington, DC: CRS, 2016), www.everycrsreport.com/files/20161216_R44714_f5b8103a9dd396c61f25d09c7747e5a87c6a3862.pdf.
What Does the End of “Wet Foot, Dry Foot” — Or More Properly “Dry Foot” — Mean?
The policy change ends the automatic parole into the United States of Cubans presenting themselves at or between land ports of entry. Cubans who reach U.S. soil are now to be treated the same as all other migrants who arrive without prior authorization. Fuller details on how the new regime will work in actual practice have not yet been detailed. However, they are likely to involve using expedited removal procedures at the borders or granting a credible-fear interview to those who assert a claim for political asylum. Those found to have a possible claim or other grounds for relief would be admitted to the United States pending a hearing in immigration court. Those who do not assert a claim for asylum would be placed in expedited or regular removal proceedings.
Given historically high backlogs in the U.S. immigration court system, with the average wait for a hearing now 678 days, it remains unclear whether ending dry foot will succeed in stemming the rising flows. In light of the history of Cuban migration policies and continuing repression and economic hardships in Cuba, there is a strong likelihood that many or most Cuban migrants will assert asylum claims. In addition, the administration has not declared how it would want to handle the Cuban Adjustment Act, which remains on the books. Permitting applications for permanent residence within a year of U.S. presence is discretionary. However, if the Department of Homeland Security continues to accept applications from Cubans for adjustment of status to a green card, it would continue to serve as a magnet for migration. The number of green cards granted to Cubans has steadily increased in recent years, from 32,219 in FY 2013 to 54,396 in FY 2015. Overall, Cuban immigration to the United States rose from 163,000 immigrants in 1960 to more than 1.2 million living in the United States as of 2015, making it the seventh-largest immigrant-origin group.
It will be up to Congress to decide whether to amend or terminate the Cuban Adjustment Act, as well as make changes to the Cuban Haitian Entrant Program authorized under a 1980 refugee law. Amid reports of abuses of the welfare system, with many Cubans coming to the United States to establish eligibility for benefits and then returning to Cuba, several members of Congress, including Florida Republican Sen. Marco Rubio, introduced legislation during the last session of Congress to amend the Cuban Adjustment Act and related laws. A pair of House Republicans introduced bills to repeal the Cuban Adjustment Act. No legislation has been introduced yet to amend or terminate the law in the 115th Congress, which began earlier this month.
Other Aspects of the Agreement
The agreement has several other elements. The United States is ending Cuban Medical Professional Parole, a 2006 program that encouraged Cuban doctors and nurses working or studying in another country to apply at a U.S. embassy or consulate to take up residence in the United States with their spouse and minor children. More than 7,000 applications have been approved over the last decade under the program, which the Cuban government has viewed as U.S. poaching of essential medical personnel.
Cuba has also agreed to consider on a case-by-case basis the return of Cuban nationals who were found removable before January 12, 2017. Media reports suggest that as many as 34,000 Cubans with final orders of removal remain in the United States.
Finally, several other aspects of the 1994-95 U.S.-Cuban migration accords remain in place. Key among them are in-country refugee processing, the Cuban Family Reunification Parole Program, and the assurance that at least 20,000 Cubans will be legally admitted from Cuba annually. These programs—also unique to Cubans—were designed to serve as alternatives to dangerous journeys, especially in unsafe vessels across perilous waters, for those eligible to immigrate to the United States.
Notwithstanding unanswered questions about the implementation of the policy changes, the Obama administration has taken a bold action within the limits of its authority to change a critical factor that has for too long drawn Cubans to the United States in dangerous ways and sizeable numbers. The time has come when building a more normal U.S.-Cuba relationship must include updating migration and immigration policies to reflect today's realities.