Issue #19 Migration Policy and Politics

Cuba’s national baseball team was initially refused U.S. permission to travel to Puerto Rico to play in the World Baseball Classic. The decision was later reversed, White House spokesman Scott McClellan said January 20, because “the President wanted to see it resolved in a positive way.” The Cubans face Panama at 7:30 tonight in Puerto Rico.

Just hours before the game begins, Cuban Americans will meet officials at the White House for an encounter that seems less likely to have a positive outcome. They will discuss U.S. policy toward Cuban migrants.

The meeting is the result of months of pressure following incidents at sea where Cuban migrants have been intercepted by the U.S. Coast Guard and returned to Cuba.

The most recent incident involved migrants who reached a fragment of an old bridge near the Florida Keys. U.S. government lawyers determined that they had not reached U.S. soil. Classified “wet foot,” they were returned to Cuba on January 9 in accordance with current U.S. policy; had they reached shore they would have been classified “dry foot,” processed by immigration authorities, and released into the community. This decision ignited protests, a statement from Governor Jeb Bush that the decision made “no sense,” and a statement from Senator Mel Martinez that the overall policy is a “complete and utter failure.” A Miami activist, Ramon Saul Sanchez, conducted an 11-day hunger strike. The White House responded to the clamor by scheduling this week’s meeting.

However, according to press reports the meeting is likely to include only Florida’s Senators, the three Cuban American members of the House of Representatives and a few close advisors. Sanchez, his organization, and representatives of similar organizations seem to be excluded.

This is an important distinction because in contrast to callers to Miami talk radio stations, commentators in the community’s lively blogosphere, and many Cuban American activists, the three members of the House of Representatives and Senator Nelson are asking for the “wet foot-dry foot” policy to be modified rather than abolished. (Senator Martinez seems to oppose returning any migrants.) An aide to one of the legislators told El Nuevo Herald that the legislators would carry “the message of the community” to the White House. But the community has no single message; among these elected leaders and their constituents, there seem to be differences as to whether a U.S. policy that returns any Cuban migrant is acceptable.

Not that the legislators applaud the policy — Representative Lincoln Diaz Balart called it “unconscionable” in 2003, and in a January 10 letter that he, his brother Representative Mario Diaz-Balart, and Representative Ileana Ros-Lehtinen sent to the Administration, they say the U.S.-Cuba agreement that allows return of the migrants is “immoral.” In their letter they seek not the abolition of the policy but rather the provision of lawyers on Coast Guard ships to advise the migrants, an effort by U.S. diplomats in Cuba to contact repatriated migrants to determine whether they seek refugee status, and similar steps.

In light of the White House meeting, and the likelihood that migration policy will be reviewed in the context of the Administration’s reactivated Cuba commission, we note some aspects of the policy that are often lost in the public debate over it.

The Cuban Adjustment Act does not give Cuban migrants an ironclad legal right to enter the United States or to remain here if they reach land. Contrary to a widespread impression, this 1966 law merely says that the Attorney General “may” — not “shall” — adjust the status of any Cuban present in the United States for one year to “that of an alien lawfully admitted for permanent residence.” The purpose was to accommodate the many thousands of Cubans who arrived in America in the first years of the Cuban revolution with no legal immigration status, and who under laws then in force would have had to go to a U.S. consulate overseas to apply to immigrate legally. Neither the Johnson Administration’s statements nor the legislative history reveal an intention for the law to create a unique treatment for Cuban migrants for the indefinite future. Nonetheless, successive Administrations have adopted the general practice of admitting Cubans who arrive without visas — those who come by sea or, increasingly, those who present themselves to authorities on the Mexican border — and then using the Act’s authority to legalize their status one year later.

Human rights violations in Cuba do not translate into an automatic qualification for Cubans to immigrate to the United States as refugees. If that were the case, the entire population of communist China would qualify to immigrate to America now. Cubans who are intercepted at sea are interviewed to determine whether they meet the standard for refugee status — a well founded fear of persecution based on political activism, religion, or membership in an ethnic or social group. Failing that, they are repatriated. The same standard applies to Cubans who apply for refugee admissions at the U.S. diplomatic mission in Havana, one of three places in the world where a person can seek refugee status without leaving his country. Last year, Cubans accounted for one in nine of the refugees admitted to the United States from all parts of the world. Currently, worldwide U.S. refugee admissions are not generous — 54,000 last year, compared to an average of 88,000 each year during the 1990’s.

The U.S.-Cuba migration accords are Bush Administration policy. They were negotiated by the Clinton Administration, but President Bush embraced them when the State Department issued a statement in December 2002: “The United States is committed to full implementation of the migration accords.” Each side complains that the other fails to comply fully, but the core of the accords, a declaration that the two governments have “a common interest in preventing unsafe departures from Cuba” and a mechanism for return of intercepted migrants, seems to function as a deterrent to mass migration.

“Wet foot-dry foot” is a U.S. policy that is not mandated by the U.S.-Cuba migration accords. In fact, the “dry foot” part of the policy contradicts a U.S. commitment in the accords not to grant “parole” to migrants who reach U.S. territory “in irregular ways.” The U.S practice of admitting those who reach land is the basis for Cuban complaints that the United States is violating the accords and creating incentives for illegal migration and alien smuggling. The Administration claims that Cuba violates the accords by refusing exit permits to Cubans with visas and by refusing to permit a second visa lottery to create a pool of applicants for the 20,000 immigrant visas that the U.S. consulate in Havana issues each year.

Restrictions on diplomats’ movements hinder monitoring of returnees. The accords provide that Cuba will allow U.S. diplomats to visit returned migrants to check on their welfare. But visits for this purpose — or to follow their refugee visa applications, as the Cuban American legislators suggest — are not occurring because U.S. diplomats are confined to Havana and Cuban diplomats to the Capital Beltway unless their travel is approved in advance. A negotiated end to these restrictions would be required for U.S. diplomats routinely to visit returnees across the island.

This is a pre-9/11 policy in a post-9/11 world. Cuba is designated as a “state sponsor of terrorism” by the State Department, implying a threat of terrorist operations, and the Administration cites a threat of Cuban espionage. Yet Cubans who reach U.S. territory are admitted with only a cursory review of their identity that is impossible to imagine in the case of any other nationality. This standing policy is surely an invitation to Cuba, if it wished to infiltrate operatives into the United States, to do so by landing them on a Florida coastline. Also, Homeland Security Secretary Michael Chertoff has identified alien smuggling as an “obvious homeland security threat” because smugglers of people can also smuggle drugs or support terrorism. He has responded on the Mexican border by sending home “every single illegal entrant — no exceptions.” Those who smuggle migrants from Cuba are prosecuted if they are caught, but the migrants they carry are admitted if they reach shore — a practice that sustains the alien smuggling business because it preserves an incentive for families to pay smugglers to bring their loved ones from Cuba.

Migration policy and “transition” goals are in conflict. U.S. policy seeks, in the words of Secretary of State Rice, “to accelerate the demise of Castro’s tyranny.” One reason this acceleration has been slow to start may be that so many Cubans address their discontent by thinking of emigration rather than politics. The focus on reaching la Yuma, as they call America, surely reduces the energy that might otherwise go into anti-government activism. Indeed, Cuban dissidents readily acknowledge that emigration constantly thins their ranks. Any policy that would facilitate increased emigration from Cuba would only reduce the pressure that, in the Administration’s calculation, is contributing to the paramount goal of ending Cuba’s socialist government. The most puzzling aspect of this policy debate may be that many of those who most strongly urge a comprehensive U.S. strategy of pressure to bring about a change of regime in Havana, also argue for changes in migration policy that would allow greater numbers of inventive, discontented Cubans to come to America. That in turn would only increase the stability of a government that has been in power 47 years.

The just treatment of migrants is an ethical consideration, but so is averting an exodus that would cost thousands their lives. With good humanitarian intention, one can argue that all Cubans should be admitted to the United States and the Coast Guard should bring those it intercepts to our shores. Those steps would end a policy that many view as immoral. But they would not occur in a vacuum; they would send a message that would likely trigger a wave of new migrants on all sorts of improvised crafts. The desire to emigrate from Cuba is so strong that 540,000 Cuban households (out of a population of 11 million) applied for the 1998 U.S. visa lottery. An attempt at mass emigration would tax the resources of the U.S. Coast Guard and Navy and many migrants would surely lose their lives. It is true, as some argue, that no one who succeeded in crossing the Berlin Wall was turned back. But in that case, that policy did not have the predictable and deadly result that would come with a mass exodus from Cuba. Given these factors and the way they collide with American values, it is not surprising that no one views the current policy as ideal. But by trying to prevent (however imperfectly) a dangerous exodus and opening avenues for legal emigration, it may be the least bad alternative available to the U.S. government. Perhaps that is why, as he jettisoned scores of Clinton policies, President Bush kept this one.