President Obama Should Exercise His Legal Authority To End U.S. Admission of Cubans Arriving with “Dry Feet”

The U.S. has a law and policy that allows Cubans who arrive on land (with “dry feet”) in the U.S. to be admitted to the U.S. without visas and to be eligible one-year later to apply for permanent residency[1] This blog repeatedly has called for that law and policy to be ended because it is antithetical to the U.S.’ having a normal relationship with Cuba.[2]

A related and important legal issue is whether the president by executive order may end that law and policy. This post will examine how this law and policy work and whether the president, without Congress, may end that policy of admitting those Cubans arriving on land.

 How the Current Law and Policy Work

 The Cuban Adjustment Act of November 2, 1976, as amended, allows any Cuban “native or citizen who has been inspected and admitted or paroled into” the U.S., after one year of “physical presence,” to apply to the U.S. Citizenship and Immigration Services to adjust his or her U.S. legal status to permanent resident alien. Such an adjustment, however, is not automatic or guaranteed by that Act. Instead, the Act provides that the Attorney General has “discretion” to do so if the Cuban applicant “is eligible to receive an immigrant visa and is admissible to the [U.S.] for permanent residence.” If the applicant does not satisfy those requirements, the Attorney General has the discretion to deny the application.[3]

The admissibility requirement involves examination of the applicant’s health; any criminal history in or outside the U.S., especially involving “crimes of moral turpitude,” prostitution, “commercialized vice;” participation in, or support of, terrorist activities; military or paramilitary activities; membership in the Communist Party; and other issues.

Recently many Cubans have been fearing that the U.S. will abolish this policy and have been leaving the island, especially through Ecuador, Colombia, Panama, Costa Rica and then on through Nicaragua, Honduras, Guatemala and Mexico to reach the U.S. Now many are stranded in Costa Rica and Panama. (See n.2.)

How Can the U.S. Dry Feet Policy Be Abolished?

Significantly, in my opinion, the Cuban Adjustment Act does not require the U.S. to admit into the country any and all Cubans who arrive by land. Indeed, it says nothing whatsoever about that issue. Instead the Act only provides a benefit (the right to file an application to become a permanent resident alien of the U.S.) after he or she has been in the U.S. for a year after having been “inspected and admitted or paroled into” the U.S.

This fact about the law has been recognized by by a respected U.S. academic commentator on U.S.-Cuba issues—William LeGrande. He concludes that the “’dry foot’ policy . . . is a matter of executive discretion [and] could be rescinded by the attorney general without prior notice.” In short, stop admitting such Cubans into the U.S.[4]

On the other hand, in my opinion, the Administration does not have the legal authority, without congressional adoption of a statute to repeal the Cuban Adjustment Act, to stop considering applications for permanent residency, based upon the facts and law, submitted by Cubans who have been in the U.S. for at least one year.

Meanwhile, some Cuban-Americans in Congress are voicing opposition to that policy because it has been allowing Cubans who are granted legal status in the U.S. under that policy to return repeatedly to Cuba. And one Republican Congressman, Paul Gosar (AZ), on October 23 introduced a bill to repeal the Cuban Adjustment Act and the policy. (Ending Special National Origin-Based Immigration Programs for Cubans Act of 2015 (H.R. 3818)); with nine cosponsors it has been referred to the House Judiciary Committee.[5] :

Conclusion

This commentator, therefore, concludes that the president has the authority to cease admitting into the U.S. any and all Cubans who arrive at the U.S. border and that he should exercise that authority and do just that. (U.S. immigration law is very complex and I do not have intimate knowledge of its many details. Therefore, I would appreciate anyone with such knowledge to point out any errors in my analysis and conclusion.)

Moreover, the president should do so immediately because of the large number of Cuban migrants stranded in Central America on their journey to the U.S.

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[1] Cubans who are intercepted at sea and thus have “wet feet” are returned to Cuba by the U.S. unless at sea they assert a fear of persecution if returned to Cuba. This is a result of September 1994 and February 1995 agreements or accords between the U.S. and Cuba to seek to stop Cubans from taking dangerous journeys in small boats in the Caribbean to try to reach the U.S.

[2] E.g., Cubans in Central America Provide Cuba with an Opportunity To Reiterate Its Objections to U.S. Immigration Policies (Nov. 20, 2015); Update on Cuban Migrants in Central America (Nov. 27, 2015); Assoc. Press, Costa Rica Asks Belize to Accept Stranded Cuban Migrants, N.Y. Times (Dec. 4, 2015).

[3] Cuban Adjustment Act, Pub. Law 89-732 (Nov. 2, 1966)(as amended); USCIS, Green Card for a Cuban Native or Citizen; U.S.CIS, Green Card Eligibility; USCIS, Form I-485, Application to Register Permanent Residence or Adjust Status; USCIS, Instructions for I-485, Application to Register Permanent Residence or Adjust Status; CLINIC PowerPoint, Cuban Adjustment Act (Mar. 19, 2014); Cuban Adjustment Act, Wikipediia. Some commentators have argued that the statute’s saying the Attorney General has “discretion” to grant permanent residency means that the president, without Congress, may abolish the “dry foot” policy. CDA, The Doorbell in the Wall (Nov. 20, 2015); Muse, U.S. Presidential Action on Cuba: The New Normalization? Americas Quarterly.) This “discretion” language, however, in my opinion, has nothing to do with whether the president has the authority to end the policy without congressional approval.

[4] LeoGrande, A New Crisis of Cuban Migration, N.Y. Times (Dec. 5, 2015).

[5] Gosar, Rep. Gosar Introduces a Bill to End Wet Foot/Dry Foot Policy and Stop Cuban Amnesty (Oct. 23, 2015).