The Cuban Adjustment Act at Age 50:

Model Law or Relic of a Bygone Era?

Credit: U.S. Coast Guard. Ashley J. Johnson/Wikimedia Commons

The Cuban Adjustment Act at Age 50: Model Law or Relic of a Bygone Era?

The Cuban Adjustment Act of 1966 (CAA) (Public Law 89-732) celebrates its 50th anniversary on November 2, 2016, amidst controversy that the law has led to unintended consequences and should be repealed. The future of the law will be debated at a symposium at Florida International University Law School November 1st.

The law allows Cubans who arrive on US soil to receive permanent residency after a year and eventual citizenship, with the understanding that they are per se refugees fleeing a Communist regime and do not have to go through the asylum process that is required of virtually all other asylum seekers to the United States. They do not have to enter through a point of entry, but simply need to land two “dry feet” on US soil.

Perhaps the most controversial case involving the CAA was the story of then 5-year old Elian Gonzalez, found on a raft near Florida in 1999 and brought to the United States. Elian’s mother drowned on the trip. Some argued that Elian should have been able to stay in the United States and qualify for CAA, while others felt he should be returned to his father in Cuba. He was eventually sent back to Cuba, as the Clinton Administration argued in federal court that the father’s rights exceeded any legal authority, including the CAA, in the United States.

In recent years, the law has gained its share of critics – the most notable being former presidential candidate and Florida Senator Marco Rubio – because some Cubans are using it to reside in the United States and travel back to Cuba on a regular basis, thus undermining the purpose of the law.

Another argument used by opponents is that the number of Cubans in the United States sending remittances back to the Communist island has helped prop up the Castro regime.

Opponents of the law in Cuba say young people – the future of Cuba – take advantage of the law to leave for the United States.

Other commentators, such as Miami Archbishop Thomas Wenski, do not argue that the law should be repealed, but that it should be used as a model for other vulnerable refugee populations in the Western hemisphere and beyond.

Wenski claims that the CAA has given Cubans the opportunity to flourish and become successful in the United States, and that opportunity should be given to other, similarly-situated, populations.

Recent migration flows in the western hemisphere have highlighted the inequities between how Cubans and other vulnerable populations have been received by the United States.

The large number of Central American unaccompanied minors and families who have arrived in the United States over the last several years is a case in point. It is well documented that this vulnerable population – as many as 360,000 Central American women and children over the past three years – are fleeing violence at the hands of organized crime in the Northern Triangle countries of Honduras, El Salvador, and Guatemala.

Yet the Obama Administration has deployed a deterrence strategy against them, marked by the use of detention, deportation and US-backed interdiction efforts by Mexico. In most cases, these groups are in more physical danger than those leaving Cuba, but they receive much less protection.

Even so, about 115,000 Cubans have been allowed into the United States at the southern border since 2014. Just prior and after diplomatic relations between the two nations was restored, a large outflow of Cubans to the United States, fearful that the Cuban Adjustment Act would be repealed, has emerged.

Another case in point earlier this year was the $1 million Costa Rica received each from the United States and Mexico to house Cubans in their country. At the same time, the United States was providing resources to Mexico to return 175,000 Central Americans during 2015. As the US government is assisting one population to make it to the United States with one hand, it is using the other to halt and return a more vulnerable group.

As Cubans migrate through the countries on the way to the United States, many Latin American nations also are asking the United States to repeal the law.

Finally, Haitians fleeing natural disasters and danger in their poverty-stricken nation are now being turned away at the southern border, while Cubans are given free passage. Thousands of Haitians are now being held at the US-Mexico border, either not being allowed to come in or being detained and deported.

While the US government has announced a temporary suspension of the deportation of Haitians since Hurricane Matthew devastated the island, it intends to renew them as soon as possible.

The establishment of diplomatic relations between the United States and Cuba last year could hold the key for the future of the CAA. Before the CAA is amended or repealed, any new migration agreement between the United States and Cuba would need to provide that Cubans with valid asylum claims could apply directly to the US government and receive safe passage to the United States. This would ensure that Cubans who need protection receive it and would prevent unsafe sea and land journeys to the United States, a harmful consequence of the CAA.

Is the CAA a model law for all asylum-seekers to the United States or a relic from the Cold War that needs to be repealed?

There are arguments on both sides. The CAA was passed at a time in which Cubans were unable to leave their country and those that tried were imprisoned and otherwise harmed. As relations between the two nations warm and freedom of movement is improved, a day will hopefully come in which an agreement can be negotiated which provides legal channels for migration, including asylum-seekers, and eliminates the need for Cubans to risk their lives to reach the United States.

It may come sooner in Congress, as Senator Rubio has indicated that it could become part of the debate on immigration reform legislation in 2017.

In the meantime, however, the US government, and the new Administration, should offer protection and due process to other populations fleeing danger in their countries – Haitians, Central Americans, and other deserving groups. If not, the CAA will continue to show the inconsistencies and injustices of US asylum policies in its own backyard.

November 1, 2016