President Obama will visit Cuba on March 21 and 22 in a historic trip, the first trip by a US president to the island since Calvin Coolidge visited there in 1928. The president is seeking to capitalize on the normalization of relations with the Communist nation that he announced on December 17, 2014.
While it is unclear what he will discuss with the Cuban government and its leader, Raul Castro, one sleeper issue that could come up is Cuban migration to the United States and the 50-year old law known as the Cuban Adjustment Act of 1966. The Cuban government has long opposed the law, arguing that it encourages dangerous and illegal journeys.
The Act, passed at the height of the Cold War and intended to protect Cubans fleeing Communist repression, permits any Cuban who makes it to the US mainland and steps on dry land to qualify for immediate protection and legal status, with the opportunity to apply for permanent resident status one year and one day later.
Tens of thousands of Cubans have taken advantage of the law since its enactment, many of them taking perilous journeys by sea to reach the coast of Florida. Others have used different methods and treks, such as flying private planes over the Florida straits or fleeing to South America or Mexico and heading to the US-Mexico border by land.
Because of political repression in Cuba, the law has maintained support among lawmakers on Capitol Hill and successive administrations. While not advocating for its repeal, some human rights and religious groups have criticized the favoritism of the law, noting that other nationalities, such as Haitians, should receive equal treatment. Thomas Wenski, the archbishop of Miami, Florida, has long called for equal treatment for Haitians attempting to reach the United States.
With movement toward the normalization of relations between the United States and Cuba, the debate on the law has been rekindled, with some lawmakers calling for its eventual, if not immediate, repeal.
As a result, a new flow of desperate Cubans, fearful that the law will be terminated, have started migrating to the United States. Many are traveling to South and Central America and then transiting through Mexico, where they are eligible for a 20-day transit pass.
In fact, the number of Cubans arriving in the United States in FY 2014 and FY 2015 was close to 68,000, with 45,000 having crossed into the United States from Mexico. About 3,000 Cubans have crossed into the United States from Mexico in the first three months of FY 2016 (October through December).
Interestingly, the totals are significant, approaching the nearly 70,000 unaccompanied minors from Central America that arrived in FY 2014. According to the US Department of Homeland Security (DHS), the number of Cuban arrivals jumped 60 percent in the last quarter of FY 2014 compared to the last quarter of FY 2013. Despite the higher than usual number of arrivals, the Cuban flow has received little attention compared to the Central American children.
In late 2015 and early 2016, however, about 11,000 Cubans attempting to reach the United States were stranded in Costa Rica, as they were refused further passage north by the Nicaraguan government, a long-term ally of Cuba. In response, both the United States and Mexico have sent $1 million USD each for the care, shelter, and housing of the Cubans in Costa Rica.
At the same time the US government has funded the interdiction of Central American children and families, it has provided financial support to house and feed Cubans. Such a policy is not only unequal; it favors a population less vulnerable than the unaccompanied minors and families fleeing violence in Central America. Moreover, Central American families are detained, while Cubans generally are not held in detention.
Why such an inconsistent and discriminatory policy? Some argue that the political power of the Cuban community in the United States, especially in South Florida, helps shield US immigration policies toward Cuban migrants from criticism. Others claim that the Cuban population is more educated and has more resources, thus making them more attractive as newcomers and more easily integrated into the United States.
The implication of both these arguments is that the Central American children and families have less political support in the United States and more needs, thus making them less desirable. However, it can be argued that the Central American population is more vulnerable, given that the majority of them are unaccompanied children and young families fleeing organized criminal networks, and should receive more, not less, protection from the United States.
The United Nations has estimated that 60 percent of unaccompanied minors from Central America have valid asylum claims and that nearly 60 percent of women interviewed by the Office of the UN High Commissioner for Refugees have experienced sexual violence (see the reports, “Children on the Run” and “Women on the Run,” at www.unhcrwashington.org)
The Obama administration has reaffirmed its commitment to the Cuban Adjustment Act, stating that it has no intention to propose its repeal. However, in defending the deportation of children and families, the majority of whom do not receive legal representation, Secretary Jeh Johnson has said that DHS would enforce the law according to its enforcement priorities.
The answer to this unequal and inconsistent treatment of two populations is not to repeal the Cuban Adjustment Act — at least until all Cubans are free to migrate without restriction — but to treat other migrating populations in the hemisphere fairly.
Central American unaccompanied minors and families should be afforded a fair opportunity to receive protection in the United States, not interdicted, detained, and returned without due process protections, including legal representation. If we are to live up to our values, we must do so because of humanitarian principles, not political calculations.