Cuba and the US: a Long Road to Establishing an Orderly and Regular Migration

By Alejandra Garcia on January 15, 2023

Jose Pertierra, photo: Bill Hackwell

On January 9, U.S. President Joe Biden announced new immigration measures for Cuba in an attempt to contain the crisis that has persisted on the southern border with Mexico since the era of his predecessor Donald Trump. The initiatives explicitly seek to discourage illegal migration of Cubans to the United States, while allowing a limited number of Cubans to enter the country under the so-called parole process. At the same time, those who do not qualify will be expelled.

According to figures released by Washington, in fiscal year 2022, more than 213,000 Cuban residents entered the U.S. illegally. It remains to be seen whether the numbers will go down, or whether the rule will speed up the regulatory means for an orderly migration.

Resumen Latinoamericano spoke to Washington-based immigration attorney José Pertierra to find out more about the new law, how it will benefit Cubans and whether it will really facilitate the development of regular migration between the two countries.

RL: What changes does the new January 9 rule portend for Cubans who try to enter the United States illegally?

JP: Until January 9 of this year, Cubans who arrived at the US/Mexico border seeking entry into the country were processed by the Department of Homeland Security (DHS) and allowed to proceed to their final destination in the United States.

DHS released the Cubans under parole, or under an Order for Release on Recognize (ORR)—a legal mechanism that many immigration judges have ruled is parole by another name.

Under the terms of the Cuban Adjustment Act, Cubans who enter with a visa or have been paroled into the United States for longer than a year are eligible for lawful permanent residency in the country.

The rule promulgated by DHS on Monday, January 9, stipulates that Cubans who are encountered on the border will not be allowed into the United States: either with parole or with ORRs. They will be removed expeditiously to either México or to Cuba.

The only way for Cubans to enter the United States is by not getting apprehended by DHS agents.  It is increasingly difficult to enter without getting caught.

I anticipate a massive decrease of irregular entries by Cubans into the country, as a result of the January 9 rule.

RL: Biden has announced that he will try to curtail asylum with another regulation that would disqualify for asylum anyone who, en route to the U.S., has passed through a third country without applying for asylum there. Do you think this measure will encourage migration through the Florida Straits?

You are correct that the Biden Administration is writing another regulation that would disqualify from asylum anyone who, having passed through a third country in route to the US, fails to apply for asylum in that third country.  Cubans who cross the US/Mexico border, by definition, first cross Mexico.  Usually, Nicaragua, Guatemala and El Salvador as well. The third country rule would severely limit the right of asylum seekers in the United States. However, it remains to be seen whether such a rule will pass judicial scrutiny. Trump already tried something similar and the courts blocked the rule, because it violated international and domestic laws regarding the right to seek asylum.

Migration by sea into the United States is problematic going forward. I expect that the US will continue to interdict Cubans at sea and remove them back to Cuba. Those who do manage to land on US soil will not be receiving parole, so they would not be eligible for the Cuban Adjustment Act and thus are destined to live in the shadows (as so many millions of other undocumented workers live ).

RL: Are there concerns that the new January 9 rule that applies to Cubans, will encourage human smuggling and trafficking into the United States?

JP: Of course. The January 9 rule is a double edged sword. On the one hand, it permits up to 30,000 Cubans, Venezuelans, Nicaraguans and Haitians to be paroled into the United States on a monthly basis.  On the other hand, it portends to shut the border to folks seeking to enter the United States without a visa or parole: even to deny them the right to seek asylum.  The rule contains carrots and sticks.

Coyotes (smugglers) see it as a great business opportunity.  The more difficult it is to enter the United States, the greater the need for the undocumented to hire coyotes to help them enter illegally.

RL: Do you really believe it is possible to establish normal and orderly immigration between the U.S. and Cuba?

JP: Yes, it is possible.  But there is still a long way to go to be able to get there.  First of all, Washington imposes a travel ban on US citizens who want to visit Cuba. It only allows travel under very strict and licensed conditions.  That is not normal. It is also a violation of the constitutional right to travel.  The travel ban must be lifted.

Also, Cuba lives under a US brutal blockade whose stated purpose is to strangle the island economically.  The blockade, accompanied by the severe economic sanctions imposed by both the Trump and Biden governments, has resulted in dire economic conditions. The more difficult life is in Cuba, the greater the desire of many Cubans to legally or illegally emigrate.

When President Obama relaxed the blockade in 2015, we saw how the Cuban economy improved. Emigration from the island diminished, and some Cuban-Americans even returned to live once again on the island.

If the President Biden wants illegal immigration from Cuba to wind down, he should look to what worked when he was vice-president.

Source: Resumen Latinoamericano – US