Cuba Gets New Immigration Policy from Obama

Ends special treatment for Cuban immigrants under the wet foot/dry foot provision.

HAVANA TIMES – US President Obama has just issued a surprise statement on Cuban Immigration Policy that eliminates the “wet-foot/dry foot” provision that has favored immigrants from the island for decades.  Cubans, said Obama, will now be treated like immigrants from other countries.

Likewise, ending today is the program that attempted to lure Cuban doctors from abandoning their government missions abroad to go to the USA.

The move will be widely applauded in Havana government circles which have considered the wet foot/dry foot law a stimulus for dangerous illegal immigration and the attempt to get doctors to abandon their government contracts abroad as brain drain.

For its part, Cuba has agreed to take in its citizens with deportation orders in the United States, something the Castro government had previously refused.

The following is the complete statement from Barack Obama.

Statement by the President on Cuban Immigration Policy

Today, the United States is taking important steps forward to normalize relations with Cuba and to bring greater consistency to our immigration policy. The Department of Homeland Security is ending the so-called “wet-foot/dry foot” policy, which was put in place more than twenty years ago and was designed for a different era.  Effective immediately, Cuban nationals who attempt to enter the United States illegally and do not qualify for humanitarian relief will be subject to removal, consistent with U.S. law and enforcement priorities.  By taking this step, we are treating Cuban migrants the same way we treat migrants from other countries. The Cuban government has agreed to accept the return of Cuban nationals who have been ordered removed, just as it has been accepting the return of migrants interdicted at sea.

Today, the Department of Homeland Security is also ending the Cuban Medical Professional Parole Program.  The United States and Cuba are working together to combat diseases that endanger the health and lives of our people. By providing preferential treatment to Cuban medical personnel, the medical parole program contradicts those efforts, and risks harming the Cuban people.  Cuban medical personnel will now be eligible to apply for asylum at U.S. embassies and consulates around the world, consistent with the procedures for all foreign nationals.

The United States, a land of immigrants, has been enriched by the contributions of Cuban-Americans for more than a century.  Since I took office, we have put the Cuban-American community at the center of our policies. With this change we will continue to welcome Cubans as we welcome immigrants from other nations, consistent with our laws.   During my Administration, we worked to improve the lives of the Cuban people – inside of Cuba – by providing them with greater access to resources, information and connectivity to the wider world. Sustaining that approach is the best way to ensure that Cubans can enjoy prosperity, pursue reforms, and determine their own destiny. As I said in Havana, the future of Cuba should be in the hands of the Cuban people.

The following press call followed President Obama’s statement:

ON-THE-RECORD PRESS CALL
BY DEPUTY NATIONAL SECURITY ADVISOR BEN RHODES
AND SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY JEH JOHNSON
ON CUBA POLICY ANNOUNCEMENT

Via Telephone – January 12, 2017  – 5:55 P.M. EST

PRICE:  Good evening, everyone, and thanks so much for joining this call, especially on such short notice.  We wanted to convene this call to discuss the changes to the policies and regulations affecting Cuban nationals that were announced late this afternoon.  First, the ground rules.  This call is on the record.  We have on this call, for your awareness, Ben Rhodes, the Deputy National Security Advisor.  We also have the Secretary of the Department of Homeland Security, Jeh Johnson, along with another senior DHS official for question.

We’ll do this call on the record, but it will be embargoed until the conclusion, so we ask that you please not use this material until the call concludes.

And with that, I will turn it over to Secretary Johnson to begin.

SECRETARY JOHNSON:  Good evening.  This is Jeh Johnson, Secretary of Homeland Security.  As part of the normalization of relations with the government of Cuba, effective immediately I have repealed the “wet foot, dry foot” policy with regard to Cuban migrants that has been in place since the mid-1990s.  Going forward, those Cuban migrants who arrive in the United States illegally, with some exceptions which I’ll get into in a moment, will be subject to deportation consistent with our laws and our immigration enforcement priorities.

To the extent permitted by the laws of both our countries, the aim here is to treat Cuban migrants in a manner consistent with migrants who come here illegally from other countries, particularly other countries in the same region.  This is a move toward equalizing our immigration policies with regard to those who come here illegally as part of the overall normalization process with the government of Cuba.

Along with the repeal of the policy, which I have done today, this is a product of an agreement with the government of Cuba.  Essentially, what the agreement means is that past is past, but that the future will be different with regard our migration relationship with the government of Cuba.  Going forward, if a Cuban migrants arrives here illegally, the Cuban government has agreed to accept that person back, specifically if the time — between the time a Cuban migrant leaves Cuba, as demonstrated to us by the Cuban government, and the time that we commence a deportation proceeding against the individual is less than four years, the Cuban government has agreed to take that person back.

Now, the reason for the four-year period is because of the existence of a law in Cuba enacted in response to the Cuban Adjustment Act of the United States, the law in Cuba essentially says that if a person has left Cuba, after two years they are considered to have effectively migrated from Cuba.  In the course of our negotiations, the Cuban government agreed, therefore, that if a person has been out of Cuba more than four years because the time they left and the time we commenced a deportation proceeding against them, which tolls that clock, they will take that migrant back.

Ultimately, we seek to get to a place fully consistent with the international law under which the Cubans will agree to accept everyone back who is ordered deported by our country.  This is regarded by us as an interim arrangement until their laws are repealed.  We also welcome repeal by Congress, by our Congress, of the Cuban Adjustment Act.

Under our agreement with Cuba, there was also the possibility that the Cubans will accept back migrants outside of this arrangement, but on a case-by-case basis.  We are also today repealing the Cuban Medical Professional Parole Program, which you should be familiar with.  That, too, is effective immediately.  We are leaving in place the Cuban Family Reunification Program.  That program will continue.

I’ll also add that with regard to interdictions of Cuban migrants at sea, by our Coast Guard, that is status quo.  That policy and that approach will continue, as well.

So I’m happy to take any questions.  But first, let me turn it over to Ben Rhodes if he has any comments.

RHODES:  Thanks, Jeh.  Just a few contextual points.  This grows out of the normalization of relations between our countries.  What we’ve seen in recent years is a continued uptick in Cuban migrants coming to the United States.  We attribute that to a variety of factors — one, that Cuba has liberalized its own exit policies with respect to Cubans leaving the country; two, the change in our policy — the normalization of relations that began on December 17, 2014 — I think created an expectation in Cuba that this change might take place and therefore people were motivated to migrate.  Also, though, the increase in resources available to the Cuban people, particularly through our remittance policies, also made it more possible for Cubans to travel.

What we’ve seen, therefore, is a steady increase to some 40,000 Cubans granted parole in fiscal year 2015; 54,000 roughly in fiscal year 2016.  And what we had also seen is a growing number of Cubans who had begun a journey to try to reach the United States who were in a variety of Central American countries that was creating both humanitarian challenges and strains within those countries as large numbers of Cubans were essentially stuck there and then facing a very difficult and dangerous — journey to our southern border in some cases.

So we wanted to ensure that we normalized our migration policies to the extent that we could and that we brought them in line with the way in which we treat other countries, as Jeh referenced.  And so, again, what this does going forward is repeal the “wet foot, dry foot” provision such that we are returning to Cuba those people who come into our custody who traveled here illegally.

I’d just say a couple of other things here.  Ultimately, of course, we believe that we’d like to see people be able to increase their economic prospects within Cuba.  That is why we have taken steps to open up a greater commercial and people-to-people relationship, and have encouraged the Cuban government to pursue economic reforms.  That, ultimately, is the best way to ensure opportunity for the Cuban people going forward.

And lastly, as Jeh said, the Cuban Adjustment Act is the legislative architecture around these policies.  That provides preferences including adjusted status, green card status, and certain benefits to Cubans who are paroled into the country.  That remains statute.  But obviously under this change, we will not be granting parole to people who arrive here illegally by land or by sea.  We do believe it would be the appropriate step for Congress to repeal the Cuban Adjustment Act, even with the four-year clock that is embedded into Cuban law that, frankly, provides Congress with four years within which to assure full normalization of these policies to repeal the Cuban Adjustment Act.  And the Cubans have indicated that they will repeal their law, which is reciprocal to the Cuban Adjustment Act if and when Congress takes that action.

And with that, we’re happy to move to questions.

Q:  Thank you both so much for doing this call.  I was just wondering, for the last two years whenever the topic of “wet foot, dry foot” policy came up, the administration was adamant that the rule belonged to the Cuban Adjustment Act and, as an act of Congress, it had to be repealed by Congress, even if it was discussed as a presidential fiat.  So why do this now with only a week left in the administration?  And what changed that made you decide that this was possible and something that could be rescinded?

RHODES:  Well, Serena, a couple of things.  First of all, we’ve been working sequentially through the normalization process.  So there was the initial announcement December 17th, then we had to establish embassies, then we were focused on making a series of regulatory changes.  So part of this was we arrived at the issue of migration later in the process.  That’s the first point I’d make.

The second point I’d make is that we saw the increase in migration, which I think is attributable to the factors I mentioned — the liberalization of Cuba’s own exit policies, the increased resources, particularly through remittances for Cubans, and, frankly, just the expectation in Cuba that this change might happen.  And that increased the sense of urgency.

But the last point, which is an important one, is this policy is often discussed here as if it is purely unilateral.  But for this to work, the Cubans had to agree to take people back.  And we did not have that indication from them — it was not part of my discussions with them leading up to December 17th and after.  And it was only in recent years, as the uptick in migration continued, that they entered into those discussions with us.  And then we, again, had to determine how to ensure that this was the best possible agreement, even as we both knew that our laws were in place — in other words, the Cuban Adjustment Act, which the Cubans object to, was still in place.  The Cubans made the adjustment to their law to extend this clock to four years, so it took time to negotiate various elements.

But again, I think this was the appropriate step at the appropriate time, and it makes sense from a perspective of our Cuba policy, it makes sense from a perspective of our immigration policy.

Look, the last thing I’d say is — we do get asked about this a lot — frankly, we did not want to speculate publicly about the likelihood of this change for fear of inviting even greater migration flows, and everything we said is actually entirely what we believe, which is that we do think Congress should repeal the Cuban Adjustment Act.  It’s the cleanest way to fully normalize our immigration relationship.

Q:  Hi, hi, thank you for doing this, and my apologies because I was late to the call, so I’m not sure if you already talked about that, but I was wondering what are the Cubans agreeing to — the Cuban government?  Are they agreeing to taking all Cubans back, including those with deportation orders?  Is this happening, as well?  And also, can you set a timeframe, just to find out — just to realize what’s going to happen with those Cubans, I don’t know, now entering the border in Mexico?  What’s going to happen to them?

SECRETARY JOHNSON:  I’ll take that.  Essentially, as I described in the first part of the call, what we’ve agreed to is, past is past and future will be different.  Going forward, the Cuban government has agreed to take back those who have been ordered by an immigration court, deported from this country.  Consistent with our laws, we will still hear claims for asylum like we do for everybody else.

And I explained earlier that if the period of time between the time they left and the time we begin a deportation is four years or less, they have agreed to take them back.  The reason for the four years is because of the state of their laws in Cuba, which we expect will be repealed as part of the normalization process, and so that’s generally how it works.

And as I mentioned earlier, interdictions at sea will continue, and those people will be returned as well.

RHODES:  I’d just add one thing.  As Jeh indicated, it’s a prospective policy.  Going forward, the Cubans will be taking people back.  Looking back, in addition to the case-by-case review that we can seek for individuals who have removal orders, you’ll note in the joint statement that Cuba has agreed to accept the list of 2,746 people out of the Mariel boatlift.  So there is a particular agreed-upon list of individuals who have procedure for return.  But our goal was to set the policy direction going forward and to normalize, essentially, this migration relationship prospectively.

There’s obviously an enormous number of — there’s a very large Cuban American population, and many Cuban migrants are already here.  It was going to be too complicated, frankly, to significantly return people who are already here.  We wanted to get things right going forward.

Q:  Hi.  So just the first question I wanted to make sure I understood.  So this would not impact Cubans who are already here?  And so I just wanted to make sure I was clear on that.  So this will be Cubans migrating to the country going forward?

RHODESAnd the second part was — I’m obviously not an expert on this — but it was my understanding that also under the “wet foot, dry foot” policy there was a lottery for a certain number — 20,000 or so Cubans — who could come here each year through that, and that also under the policy the U.S. was less, I don’t know, vigilant in deporting Cubans who’d committed some sort of deportable offense.  So I wondered if I’m correct on those points, if those also will change — the lottery will go away, and the U.S. would become more aggressive at deporting Cubans who have made some sort of deportable offense.

SECRETARY JOHNSON:  Let me take that.  First of all, the policy, as Ben mentioned, is prospective.  Going forward, effective immediately, those who arrive here going forward.

With regard to your question about the lottery, I’m going to turn it over to a DHS senior official.  Go ahead.

DHS SENIOR OFFICIAL:  Hi.  So under our agreement — so the 20,000 — so we agreed in the 1994-95 Migration Accords with Cuba that we would accept for admission 20,000 Cubans per year.  That continues to be the case under this agreement.  This new agreement does not change that commitment by the United States.

 

RHODES:  But again, those are people who would come here through authorized procedures.  So what this does is allow us to deal with Cubans arriving irregularly by land, as well as sea.

Q:  Hi, good afternoon.  I saw a statement by Senator Menendez saying that Congress was not consulted on this.  I just wanted to confirm that with you.

RHODES: And I also wanted to know — the Cuban Adjustment Act actually leaves a lot of discretion for the Attorney General to grant — well, a lot of this question for him to decide on whether to grant that green card for Cubans who have been here a year.  So I was wondering, since you think that Congress sho uld lift the act, do you also think that the Attorney General should exercise that discretion and stop granting parole to — well, granting residency to Cubans who have been here a year legally?

SECRETARY JOHNSON:  The discussions leading up to this were very sensitive.  The policy that we’re announcing today is effective immediately.  We did not want for there to be a mass exodus from Cuba in anticipation of a change in policy.  So these were very sensitive discussions.  And I’m going to turn it over to the DHS senior official to describe how the Cuban Adjustment Act works.

One point I’ll make is, references in the law to the Attorney General back then now are to me, the Secretary of Homeland Security, because DHS was created after the enactment of the law.

Go ahead.

DHS SENIOR OFFICIAL:  So I think the point you’re trying to raise is that to some degree the decision whether to adjust the status of a Cuban national who has been paroled into the United States under the Cuban Adjustment Act is discretionary.  I don’t know if you can still — is that the point you were trying to make?

Well, I’m assuming that’s the point you were trying to make, assuming you can’t answer my question.  So there is case law that limits our authority to grant or deny adjustment under that law.  But that is something that we will continue to consider and analyze moving forward.

RHODES:  I’d just add a couple things.  On the congressional point, while we did not have regular updates on what were very sensitive negotiations, we have over the course of the last year or so, frankly, heard from members of Congress, from both parties, who were expressing increasing concern about the migration flows.  In fact, in some cases, we were being urged to do something about it.  And we’ve also heard increasing interest and even pieces of legislation being introduced that seek to amend or repeal the Cuban Adjustment Act, whether it’s the benefits provided under the Cuban Adjustment Act or the act itself.  So this is an issue that we’ve discussed with members of Congress from both parties, and around this announcement of course we’re doing many notifications to those interested members.

And I should add to Serena’s original question here — that congressional interest is one of the things that gave us a greater impetus to act.  It was clear to us that Congress was taking a greater interest in this issue, given the uptick in migration flows and the strain that that was placing on certain communities.

On CAA, again, the cleanest way to fully normalize is to repeal the act.  So that is the — that would be our recommendation.  We have seven days, so it’s not going to happen in that timeframe, but I do think actually there is bipartisan support for that type of effort going forward.

Q:  Hi, thanks for doing this call.  I wanted to ask two things.  One is just sort of a more technical thing.  This happened by a Department of Homeland Security rule, right, so presumably in a subsequent administration, it could be undone and then the Cuban Adjustment Act is still there.  I’m just wondering if for some reason this wasn’t followed up on, and our Congress doesn’t repeal the Cuban Adjustment Act, and the Cubans don’t revise their policy with that four-year window, could we be left with the same situation sort of de facto that we have now?

And then secondly, just if you guys could put this in context a bit.  This was a policy initially designed to give Cubans who are fleeing persecution a special way of getting to the United States.  In making this move, is the administration essentially taking the position that this is no longer necessary or appropriate, I guess, giving the détente?

RHODES:  Jeh, you take the first question.  I can handle the second.

SECRETARY JOHNSON:  It’s important to remember that this is the ending of a policy that was put in place 20 years ago.  This is not the enactment of a policy that can be repealed by a subsequent administration.  This is us repealing a policy unique to Cuba, given the nature of the relationship 20 years ago, which is very different right now.  So I wouldn’t characterize it as creating a policy that could be repealed.

Go ahead, Ben.

RHODES:  Yeah, I’d just say a couple of things.  I just want to clarify, Julie, because of the nature of the way you phrased it.  Keep in mind that the four-year provision is not six.  So, in other words, it’s four years from whenever the individual leaves Cuba.  So, in other words, the earliest that that could enter into question is four years from today.  But if an individual leaves Cuba a year from now, that’s five years from today.  It is a peculiarity, but Congress will have four years to repeal the Cuban Adjustment Act.  During that time, we will be putting individuals who come into our custody, who have arrived here illegally, into removal proceedings.  And again, the Cubans have committed to repeal their law, which was passed to be reciprocal to the Cuban Adjustment Act.

To your second question, I think a number of things have changed.  First of all, I think as a general matter there are certainly individuals — well, put it this way — early in the post-revolution history, it was very clear that the overwhelming number of Cubans who came to the United States and ended up doing incredible things here in the United States absolutely had to leave for political purposes, or very much were leaving for political purposes.  I think increasingly over time, the balance has tilted towards people leaving for more traditional reasons in terms of seeking economic opportunity and, frankly, having not just the benefits of “wet foot, dry foot” and the adjusted status, but also literal benefits under the Cuban Adjustment Act.  That’s not to say that they’re not still people who have political cause to leave Cuba.  And as we do with any other country, political asylum continues to be an option for those individuals.  But we have seen the balance shift to more similar reasons in terms of people pursuing economic opportunity.

The second thing I’d say is that we believe that ultimately the best future for Cuba is one that is determined by the Cuban people, both in terms of their economic livelihoods and in terms of their political future.  And, frankly, it’s important that Cuba continue to have a young, dynamic population that are clearly serving as agents of change and becoming entrepreneurs, and being more connected to the rest of the world.  And, frankly, we believe that this change is in service of creating more incentive for there to be the economic reforms that need to be pursued on the island in terms of opening up more space for the private sector, allowing foreign firms to hire Cubans, so that they can be responsive to the economic aspirations of their people.

So in the long run, the best way for Cubans to have this opportunity is for them to be able to pursue it at home through an economy that has continued to pursue market-based reforms.

Now, we believe very strongly, in this administration, of course, that our Cuba opening is the best way to incentivize that economic reform; that as more Americans travel, as more Americans do business, as there are greater commercial ties, that ultimately is going to create more opportunity for people in Cuba, as well as creating opportunities for Americans.  And so that’s very much the approach we’d like to see continued going forward, and ultimately the one that has the best opportunity to deliver results to the Cuban people.

The links between Cuban Americans and Cubans will remain as robust as ever.  And, in fact, what we’ve done is open up for space for those links, because Cuban Americans can now travel, they can send unlimited remittances.  Many of them are people who are focused on — many of the commercial opportunities include Cuban Americans who want to contribute to the building and development of Cuba.  So those links will remain very strong in the context of this policy change.

We’ll take one more question.

SECRETARY JOHNSON:  I just would like to emphasize something my colleague said a moment ago coming from me.  Cuban migrants, like everybody else, will still be able to apply for asylum, consistent with our laws.  So this is — what we’re doing is putting, to the full extent permitted under each nation’s laws, putting Cuban migrants in the same place and on the same footing with migrants who come here from other countries who are available — who are allowed to apply for asylum and the like.  It’s an effort to normalize the relationship and equalize it in the region and how we treat migrants from around the world.

RHODES:  We’ll take the last question.

Q:  Thank you very much.  Just wanted to clarify the situation on the U.S.-Mexico border.  If a Cuban approaches the border tomorrow and presents himself to immigration with a Cuban ID card and nothing more than that, in the past they’ve been allowed entry and parole.  Will they still continue to be allowed to cross the border into the United States to apply for asylum, or will they be turned away like other people?  Will they still — in other words, will they still have some kind of privilege under the Cuban Adjustment Act that will allow them to set foot in the country to make that asylum claim?

SECRETARY JOHNSON:  The policy repeal is effective immediately.  So a Cuban migrant, like a Guatemalan migrant or a migrant from El Salvador, can assert a claim of credible fear at the border when they arrive.  But effective immediately, that policy — our approach to Cubans arriving tomorrow will be the same as those arriving from other countries in Central America, Mexico, and otherwise.

RHODES:  And just to put a fine point on this, the Cubans will be treated like everybody else.  People from anywhere can issue a claim of asylum; that does happen frequently.  This is an important point, though:  Under the current policy, they would have been paroled in, and then that would have put them into a position where they could begin to receive the benefits under the Cuban Adjustment Act.  They’re not going to be paroled in during whatever adjudication might take place of a claim.

So essentially they are being treated like people from any other country that arrives.  There’s not going to be a separate queue for Cubans.  So just like any other migrant who reaches our border, they have certain claims that they can pursue, but they’ll be treated as other individuals from other countries are.  And if they are not paroled in, they will not be able to adjust and achieve the benefits under the CAA, which would be the current context.

So I think that’s an important change, particularly in light of how this issue has been debated and discussed in parts of the country — because, again, if people knew that they could achieve that parole into the country immediately, they also know that that would put them on a track towards the potential benefits afforded to them under the CAA.  That changes — it just treats the Cuban migrants like migrants from other countries.

RHODES:  Okay, thanks, everybody, for getting on the call.  And we look forward to answering any other inquiries you may have going forward.  Jeh, is there anything else you want to say?

SECRETARY JOHNSON:  No, that’s it.

RHODES:  Great.  Thanks, everybody.