ON THE CUBAN ADJUSTMENT ACT
- Prior to the triumph of the Revolution, the visas granted by the Embassy of the United States of America in Cuba were few and far between - and the legal arrangements for a Cuban citizen to travel to the United States between 1945 and 1959 were long and rigorous. Every Cuban was treated as a citizen of any other country, with absolutely no privileges. When any Cuban arrived illegally, in violation of American laws, they faced either immediate return or prison in US territory.
- Since 1st January 1959, the US immigration policy has been aimed at encouraging illegal migration from Cuba, thus becoming an important instrument of its hostile policy towards Cuba.
- Ever since, US authorities started to accord a special treatment to Cuban émigrés by sheltering the murderers, henchmen, torturers, embezzlers and thieves of the tyranny led by dictator Fulgencio Batista. They never agreed to our requests for extradition of some of these individuals on account of the above-mentioned crimes. On the contrary, they took under their wings Batista's high bourgeoisie that was affected by the nationalist measures adopted by the revolutionary Government - thus encouraging the exodus of professionals (including over half of the 6,000 physicians Cuba had at the triumph of the Revolution), technicians and skilled workers, as part of its policy to thwart the socio-economic development of our country.
- Their obsession to discredit the Revolution with that uncontrollable migratory outflow had one of its most abhorrent episodes in "Operation Peter Pan" - whereby 14,000 Cuban children were deceitfully separated from their parents and taken to the United States. Parents were led to believe that the Cuban Government would remove their parental authority and the illegal exit of Cuban children to the United States was organized from that country.
- Every Cuban arriving in US territory would receive "refugee" status. The Eisenhower administration set up the Emergency Center for Cuban Refugees in Miami in December 1960. The term "refugee" was used indiscriminately and without any legal grounds to discredit Cuba's image abroad. The US administration did not take into consideration the international legal standards sanctioned by the 1951 Convention on the Status of Refugees or the 1967 United Nations Protocol.
- By the end of 1962, the US Government had made the decision to suddenly cancel the regular flights to and legal departures for the United States. These facts, together with the economic warfare waged against our country after the revolutionary triumph, strongly encouraged illegal migration. That same year, President Kennedy signed Public Act 87-510, known as the "Migration and Western Hemisphere Refugees Assistant Act" - whose purpose was to portray that every Cuban trying to migrate was doing so because of persecution based on their "political opinions contrary to the regime." Also, the migration of Cubans into the United States became a "national security" issue. This law provided special financial conditions to support Cuban émigrés and the US Government appropriated over US$ 1 billion only to the Cuban Refugees Program.
- From February 1963, the US Government stepped up its offensive to encourage illegal departures from Cuba by limiting to the minimum the possibilities for legal migration from Cuba. To that end, those arriving in the United States directly from Cuba were considered "refugees" and granted immediate residence, while the citizens attempting to reach the United States from third countries were treated as aliens and subjected to US immigration rules.
- The preferential treatment accorded to Cuban citizens, which has set them apart from the rest of aliens arriving in the United States, was given legal grounds on 2 December 1966 when President Johnson signed the "Cuban Adjustment Act" - providing that "any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to 1 January 1959 and has been physically present in the United States for at least one year, may be adjusted by the Attorney General at his/her discretion and under such regulations as s/he may prescribe for an alien lawfully admitted for permanent residency." In other words, the Cuban Adjustment Act establishes that any Cuban arriving in US territory, even illegally, and residing there for two years (it was later shortened to one year and it is still effective) can receive from the Attorney General (as practiced by the INS) the status of permanent resident in the United States. This power vested in the Attorney General (the INS) has been used since then to admit any Cuban arriving in the United States - regardless of their criminal record and the ways utilized to reach its territory, even the perpetration of crimes - and automatically grant them upon the completion of a year and one day the permanent residency in the United States. Never has there been a single Cuban returned to our country after reaching the US illegally, even if they did not qualify according to the US law to legally migrate to that country.
- The Cuban Adjustment Act is the only such law in the world that offers these privileges - allowing Cubans who arrive in the United States to be the only immigrant group that automatically and immediately receives a working permit, does not have to submit an affidavit of support to become lawful residents, gets a social security number and public benefits for food and accommodation, adjusts their status without having to return to their country of origin to receive it (as in the case of applicants from other nationalities) and does not need lawyers or money to get the benefit of blanket parole.
- The inconsistent and arbitrary US immigration policy towards Cuba has caused three major boatlifts since 1965 (Camarioca in 1965, Mariel in 1980 and the so called 1994 "rafters' crisis").
- As a result of the 1980 migration crisis, several meetings were held between Cuban and American representatives - culminating in the signing of an Agreement on the Normalization of Migration between both countries that included a Joint Communiqué and Implementation Minutes. Under this agreement, Cuba agreed to the return of 2,746 "excludables" living in the United States, while the latter committed to granting up to 20,000 visas every year to those Cuban citizens wanting to lawfully migrate to the United States.
- Out of the 160,000 visas that should have been granted in the eight years such agreement was in force, only 11,222 were issued - that is, just 7% of the total.
- In addition to these irregularities in the execution of the agreement by the United States, there was their negligent attitude of encouraging illegal migration and admitting into US territory - under the Cuban Adjustment Act - any Cubans arriving in the United States as stowaways, hijackers of aircraft or vessels or simply as rafters.
- The lack of effective actions to put an end to illegal migration and alien smuggling, as well as the impunity and encouragement the perpetrators of armed hijackings of aircraft and vessels received from the US - plus the partial execution of the 1984 agreement - were the critical factors that unleashed the so called "rafters' crisis" in August 1994, resulting in the illegal migration to the United States of over 30,000 people.
- As a result of the talks held between both Governments, a Migration Accord was reached on 9 September 1994 - later complemented with the measures adopted as part of its implementation and included in the 2 May 1995 Joint Statement. Thus, the proper conditions for safe, legal and orderly migration were established.
- By virtue of the commitments made by both Parties in the Migration Accords signed in 1994, their mutual interest in normalizing migration procedures was then recognized - for which, regarding safety at sea, recognition was also given to their common interest in preventing the unsafe departures from Cuba that endanger life. In that sense, the United States would discontinue its practice of paroling all Cuban immigrants reaching US territory in irregular ways and Cuba would take effective measures in every way possible to prevent unsafe departures by using mainly persuasive methods.
- Regarding alien smuggling, both Parties undertook to cooperate and take prompt, effective action aimed at preventing the illegal transport of persons to the United States, as well as all effective measures in every way possible to oppose and prevent the use of violence by any persons seeking to reach, or arriving in, the United States from Cuba by forcible diversions of aircraft and vessels.
- On the subject of legal migration, it is established that the United States will continue to issue visas to Cuban citizens who want to travel to that country and are eligible to migrate in conformity with US law - committing to issue a minimum of 20,000 visas each year.
- In connection with the issue of safety of life at sea, in the 2 May 1995 Joint Statement both countries reaffirmed their common interest in preventing unsafe departures from Cuba. It was then established that Cuban immigrants interdicted at sea by the United States and attempting to enter the US will be returned to Cuba. Similarly, immigrants found to have entered the Naval Base in Guantánamo illegally will also be sent back to Cuba. Accordingly, it will be ensured that no action is taken against those immigrants returned by the United States to Cuba as a consequence of their attempt to migrate illegally.
- Progress in the implementation of the Migration Accords has been reviewed in 13 rounds of migration talks held from 1 September 1994 to date. At these meetings, Cuba has drawn attention to the constant irregularities in the implementation of the Accords by the United States, contradicting and violating their text and spirit.
- The United States has only fulfilled its commitment to issue 20,000 visas each year. In that regard, a total of 94,074 visas had been granted since the signing of the Accords in 1994 until the end of Fiscal Year 1999.
- The United States has failed to comply with the portion of the agreement relating to its interest in preventing the unsafe departures from Cuba that endanger life. Instead, it has continued to encourage illegal migration by not discontinuing the practice of paroling all Cuban immigrants who reach its territory in irregular ways.
- The power vested in the Attorney General's Office since 2 November 1966 to parole any Cuban citizen arriving in the United States - regardless of the way used to reach US territory - and give them the immediate right to a working permit, entails an evident contradiction to the text and spirit of the Migration Accords. As a matter of fact, it constitutes the core of the existing migration problem between both countries: the ever-increasing phenomenon of illegal migration to the United States.
- In spite of the provisions contained in the Migration Accords, US authorities continue the inalterable practice of admitting in its territory and not returning to Cuba those illegal immigrants reaching its shores or territorial waters - thus abetting illegal migration. According to what an INS spokesperson revealed last 6 March, the number of Cubans who arrived in US territory and were received by that country amounted to 615 in Fiscal Year 1997-98, while in Fiscal Year 1998-99, the figure rose to 2,254. This last year (1998-99), according to INS statistics, the US Coast Guard Service interdicted 1,278 Cubans at sea, returning 87% of them to Cuba. It means that for every illegal Cuban immigrant interdicted at sea and returned to Cuba, the US paroled 2 illegal Cuban immigrants in its territory. This is done under the "dry feet, wet feet" policy - which irresponsibly provides that if any illegal Cuban immigrant reaches US territory, they would be accepted in the United States but if intercepted at sea, they are as a rule - though not always - returned to Cuba.
- Cuba has repeatedly stated, both in official contacts in Havana and in Washington, as well as in the rounds of migration talks, its strong rejection of this selective policy when repatriating illegal immigrants. If the INS really had the intention of returning these persons that are interdicted at sea and then paroled in the US under the pretext that medical care should be administered, they could receive them under "provisional parole" and send them back to Cuba at a later time. However, there is so far no knowledge of even a single case of this kind that has been returned, nor have we received any answers to our questions and concerns regarding such irregularity.
- The practice of not returning to Cuba all immigrants rescued by the US Coast Guard Service at sea and transferring them to the Naval Base in Guantánamo is an invitation to illegal departures. In some cases, they are repatriated by land after conducting a more detailed verification, but there are also other cases that have never been returned and are waiting to be paroled into the United States as refugees or sent to a third country. The charges made by these persons against Cuban authorities - claiming alleged political, religious or any other kind of persecution - are completely false and far from the truth. They are just pretexts used by these individuals in an effort to give credibility to their attempts to illegally migrate and be admitted in the United States.
- To date, since the Joint Statement was signed on 2 May 1995, US authorities have repatriated to Cuba a total of 5,214 illegal immigrants - including those interdicted at sea by the US Coast Guard Service and those citizens illegally entering the Guantánamo Naval Base and returned through the gates of this facility. Once handed over by the US authorities and subjected to a medical check-up, they are returned to their families with the exception of those who are fugitives from justice or wanted in a court of law for perpetrating any other crimes. Cuba has strictly kept its commitment and has created all conditions for these citizens' reinsertion into society.
- Another phenomenon that has proliferated as a result of the encouragement to illegal migration is alien smuggling or trafficking and the incentive it represents for potentially illegal departures.
- The leniency of US authorities to alien smugglers from that country allows for the impunity of these individuals and consequently the constant violation of international law, US laws and the Migration Accords signed with Cuba - which in the paragraph referring to alien smuggling, in addition to reasserting its support for the UN General Assembly Resolution on alien smuggling, establish that Cuba and the US "pledged their cooperation to take prompt, effective measures in order to prevent the illegal transport of persons to the United States."
- Cuba has taken some effective, exemplary measures against alien smugglers without any cooperation from the US Government. Our country has arrested around 70 of these delinquents - and it is a contradiction that US authorities have been unable to do so despite all the public information on the smugglers' MO and movements. On the other hand, Cuba has unsuccessfully offered to the US Government the possibility to return these smugglers arrested in Cuba to stand trial in the United States.
- Cuba has taken several measures against alien smuggling through Article 348 of its Penal Code, which establishes life imprisonment for smugglers when violence is used and there is loss of human life or risk of loss of human life. Cuba has enacted a Decree-Law to seize boats - strictly controlling private and state-owned boats and the materials used in such crime. On the other hand, its competent authorities have stepped up surveillance measures.
- The United States will not be able to establish discipline on its own shores as long as the "Cuban Adjustment Act" is in effect, let alone if it continues financing, promoting and improving the broadcast methods of over 2,300 weekly radio hours to constantly encourage illegal departures as part of its political and psychological warfare against our country.
- As a result of this policy and the existence of that law, Cuban boy Elián González was a victim of an illegal migration attempt and later of a kidnapping that forced him to stay in the United States for seven months without legal support - an event that was in the spotlight of the international public opinion.
- Without resolving these problems, it is unconceivable that there can be a situation guided by the principles of legal, safe and orderly migration.
- US authorities are completely responsible for over three decades of loss or risk of loss of human life, even children who are forced to embark on such adventures as a consequence of a policy that is immoral, outdated, absolutely unethical and inhumane.
- Cuba will continue to publicly identify this senseless act as "the law of death" and will not cease sending warnings on the serious risks and dangers caused to Cuban illegal immigrants.
Source: Cuban Interests Section in Washington, DC