Previous posts have discussed the plight of Cuban migrants in Central America on their way for entry to the U.S. under its current “dry feet” policy. Nicaragua refused to admit such migrants from Costa Rica, and a regional meeting of foreign ministers failed to resolve the problem.[1] That is still the case.[2]
Other Countries‘ Refusal To Help
On December 8, the President of Costa Rica announced that his country had failed to find other countries in the region that are willing to take any of the approximately 5,000 Cuban migrants in Costa Rica so that they may continue their journey north to the U.S.
Belize has rejected Costa Rica’s request to allow the Cubans to transit through that country while Guatemala has requested a Mexican pledge to allow the migrants to go through that country to the U.S. before Guatemala will let the Cubans enter their country.
Nevertheless, Costa Rica has stated that it would not deport any of the Cubans to their home country against their will.
In the meantime Costa Rica has asked Ecuador, Colombia and Panama to limit the transit of any more Cubans. Panama now has approximately 1,000 Cuban migrants.
Inter-American Commission on Human Rights’ Concern
The Inter-American Commission on Human Rights has expressed its concern about the plight of the Cuban migrants in Costa Rica. The Commission, however, welcomed the decision of the Costa Rican government to grant transit visas to Cubans and to seek cooperation of other states in the region to facilitate the safe, orderly and documented transit of the migrants to the U.S. The Commission also has taken note of the November 30 U.S.-Cuba meeting about various migration issues.
The Commission reiterated that States have an obligation to respect and ensure the human rights of all migrants who are under their jurisdiction. Those rights are derived from the principle of human dignity
More specifically the Commission has urged the Nicaraguan government to investigate its alleged ill-treatment of the migrants. And to implement training programs on guidelines for use of force and the principle of non-discrimination. The Commission also has stressed the principle of non-refoulement, which necessarily implies that people are not rejected at border or expelled without an adequate and individualized analysis of their situations; the absolute prohibition of collective expulsions; and the obligation to take special measures for the different treatment of vulnerable groups within migrants.
In addition, the Commission urged the Cuba not to put obstacles to people wishing to leave the country.
Upcoming Costa Rica-Cuba Bilateral Meetings
On December 13-15, Costa Rica will hold apparently prearranged bilateral meetings in Havana because the published agenda does not include any mention of the migrant crisis. Instead that agenda includes the following:
Create a strategic alliance to link ecosystems biotechnology research
Strengthen ties of cooperation among public universities that have institutes of biotechnology.
Create links between software industries.
Promote training processes in high performance sport developing anti-doping testing.
Increase tourism connectivity by adding Costa Rica to flights that Cuba receives from China, Russia and Turkey,
Exchange experiences and knowledge in health case, especially primary care, cancer treatments and vaccines.
See investment opportunities in Cuba for Costa Rican businesses.
Let us hope that perhaps behind the scenes the presidents of the two countries will discuss and find ways to reduce or solve the crisis.
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.
[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.
On November 30 in Washington, D.C. the United States and Cuba held their biannual migration talks without progress in resolving major disputes over U.S. immigration benefits for certain Cubans. Immediately afterwards Cuba imposed travel restrictions on Cuban medical personnel.
The Cuban delegation reiterated its deep concern over the U.S.’ Cuban Adjustment Act and the “wet foot-dry foot” policy. Cuba insisted that this U.S. policy has encouraged illegal, unsafe and disorderly migration and trafficking in migrants and irregular entries into the U.S. from third countries. This happened most recently in Costa Rica and other Central American countries.[2] Cuba insisted that this policy violates the letter and spirit of their Migratory Agreements in force, by which the U.S. undertook to discontinue the practice of admitting Cuban migrants who reached their territory by irregular means, to ensure a safe and orderly legal migration between the two countries.
The U.S., however, continued to assert that it did not intend to make changes in this immigration policy.
The Cuban delegation also reiterated its objections to the U.S. “Parole Program for Cuban Medical Professionals.” Cuba stressed that this was a reprehensible practice aimed at damaging the Cuban international medical mission programs and deprived Cuba and many needy countries of vital human resources. According to Cuba, this U.S. program also Is inconsistent with the countries’ bilateral Migratory Agreements, hinders the normalization of their migratory relations and generates problems to other countries in the region.
Nevertheless the Cuban delegation emphasized that the talks took place in a friendly and professional environment, that other aspects of migratory relations were evaluated, including the implementation of existing agreements, the issuance of visas for immigrants and temporary visitors, the actions of both parties to address illegal people smuggling and document fraud. The two delegations agreed on the positive results that had occurred at the prior bilateral technical meeting on immigration fraud, held in March 2015 in Havana.
The delegation of Cuba conveyed its willingness to continue these talks and invited a U.S. delegation to do so in Havana in the first half of 2016,
The U.S. Department of State spokesperson was much briefer in comments that had been prepared before the talks. She said, “Today the U.S. and Cuba will hold their biannual migration talks . . . to discuss continuing implementation of the U.S.-Cuba Migration Accords, which provide for the safe, orderly, and legal migration of Cubans to the U.S.”
The U.S. spokesperson added, “The U.S. “will be proposing . . . a discussions on how both governments can contribute to combating smuggling organizations that take advantage of Cuban migrants. Additionally, we are looking for solutions to the challenge if migrants do not have a valid asylum claim or other legal basis to remain in a country. We recognize that governments have the sovereign right to return them to their home country. Any and all returns should be carried out safely and with dignity.”
New Cuban Exit-Restrictions on Cuban Medical Professionals[3]
After the talks in Washington had been concluded and the U.S. continued refusal to change its Cuban medical professional parole program, the Cuban government in Havana announced that effective December 7 Cuban health professionals in specialties that have been drained by large-scale emigration in recent years will now be required to obtain permission from Cuba’s Health Ministry officials in order to leave the country.
These specialties included anesthesiology, cardiology, pediatrics, neurosurgery, nephrology, obstetrics, gynaecology, orthopaedics, traumatology and neonatology. In reviewing applications for exit visas in these specialties, the Ministry will analyze the proposed dates of travel, the coverage of the individuals’ practice in their absence and guaranteeing the accessibility, quality, continuity and stable functioning of Cuban health services
Conclusion
I agree that special immigration benefits for Cubans arriving on land in the U.S. should be eliminated as soon as possible.[4] Although I am a retired attorney, I have not attempted to determine whether the Obama Administration on its own by executive order or changes in regulations could do this or whether it requires Congress to pass a bill on this subject, but I plan to conduct at least a preliminary legal analysis of this issue for a future post. (I would appreciate comments on this issue by those with more knowledge of the issues.)
I also agree that the U.S. should abolish the Cuban Medical Professional Parole Program as discussed in prior posts.[5] Again I have not attempted to determine whether the Obama Administration on its own by executive order or changes in regulations could do this or whether it requires Congress to pass a bill to do this. (I also would appreciate comments on this issue by those with more knowledge of the issues.)
I originally was baffled by the U.S.’ continued assertions that there would be no changes in U.S. immigration policies regarding Cuba because those policies, in my opinion, are so illogical and inappropriate for countries with normal relations. Now I suspect that those assertions were based upon the Administration’s assessment of the difficulty (or impossibility) in obtaining Congressional approval of any necessary legislative changes on these issues and the Administration’s belief or hope that such assertions would discourage Cubans from immediately accelerating their plans or desire to leave Cuba for the U.S.
As a result, I am disappointed that the U.S. has not changed these policies.
A prior post discussed the conflict between Costa Rica and Nicaragua over Cubans trying to traverse Central American countries on their way to the United States. Since then, the foreign ministers of the eight countries of the Central American Integration System (SICA) and of other interested countries (Cuba, Ecuador and Colombia) held an inconclusive meeting to discuss that situation and thereafter Ecuador announced a change in its policies for Cuban migrants. Here is a summary of those developments.
Situation of Cubans in Central America
An estimated 3,000 Cubans are now stuck in Costa Rica over Nicaragua’s refusing to allow their entry into that country for their journey to the U.S. Many of these Cubans have smart phones and social media that have assisted them in their trek from Ecuador to Central America and, they hope, on to the U.S.[1]
SICA Foreign Ministers Meeting
The situation of the Cuban migrants was the focus of the just mentioned SICA meeting on Tuesday (November 24) . Note that the U.S. was not present or invited.[2]
The situation was prompted by Nicaragua’s refusing to admit Cuban migrants from Costa Rica. Nicaragua said Costa Rica had created and manipulated this crisis by seeking to ignore the real cause: the U.S. immigration policies that need to be changed. “Our governments do not have the resources to deal with this new threat to our national security,” suggesting that Nicaragua was faced with the wave of Cubans that could facilitate terrorism or migrants from other countries. Nicaragua also criticized the Cold-War-era U.S. policies that allow the Cubans special status as migrants.
The Cuban Ministry of Foreign Affairs said the Cubans in Costa Rica came legally to different nations of Latin America, with all the requirements established by the migratory regulations of their country. “In an attempt to reach U.S. territory, [however,] they have become victims of traffickers and criminal gangs, which unscrupulously profit from the control of the passage of these people through South America, Central America and Mexico.” Moreover, Cuba stated that the migrants also were victims of the politicization of the migration issue by the U.S. government, through the Cuban Adjustment Act and the “wet-foot, dry-foot policy.”
Cuba also said it has remained in contact with the governments of the countries involved. Indeed, Cuba’s Foreign Minister, Bruno Rodriguez Parilla, visited officials of its allies, Ecuador and Nicaragua, on November 19 and 20 respectfully to discuss the situation.
Ecuador supported Nicaragua’s position by saying that under international law creation of humanitarian corridors only applies in situations of war or armed conflict which was not the case here.
The Salvadoran Minister of Foreign Affairs, Hugo Martinez, afterwards said it was necessary to reach a comprehensive solution that addressed the current immigration crisis. He also said that El Salvador will ask the International Organization for Migration to support Costa Rica in shelter conditions for the Cuban migrants. However, he said, allowing the passage of the migrants was subject to the “principle of self-determination” of each of the SICA countries and that the migration was not encouraged by the country of origin (Cuba) or by the Central American countries, but by the U.S. with its special immigration policies for Cubans.
After the meeting Costa Rica’s Foreign Minister, Manuel Gonzalez, said that Nicaragua had refused again to cooperate in finding and adopting a solution for the migrants.
The solution proposed by Costa Rica was an arrangement to enable the safe, orderly and documented transit of the Cuban migrants so that they would avoid falling prey to international trafficking networks. According to Gonzalez, Nicaragua objected to this proposal and did not present any viable alternative approach.
Ecuador’s Requiring Visas for Cubans
On November 26 Ecuador announced that effective December 1 it will require Cubans to have visas to enter the country. Ecuador’s Deputy Minister of Foreign Affairs, Xavier Lasso, said this change was to honor commitments it made at the SICA meeting “to stop human rights violations and even loss of lives” and to halt threats to Cuba’s population. Lasso also urged the U.S. to rescind its “dry feet” immigration policy so that Cubans would no longer attempt this journey.[3]
The next day hundreds of Cubans gathered at the Ecuadorian Embassy in Havana to protest the new visa policy. They were angry because they say they had bought airplane tickets to Ecuador before visas were required. An Embassy spokesman said the Cubans would have to get a new visa and speak to the airlines about refunds.[4]
Conclusion
I agree that special immigration benefits for Cubans arriving on land in the U.S. and the risk that these benefits will be eliminated are prompting many Cubans to try to come to the U.S. as soon as possible. I also agree that these U.S. laws and policies should be eliminated as soon as possible.[5] In a future post I will attempt at least a preliminary legal analysis of the claim that the Obama Administration on its own by executive order or changes in regulations could do this.
I also agree that the U.S. should abolish the Cuban Medical Professional Parole Program as discussed in prior posts.[6] Again I have not attempted to determine whether the Obama Administration on its own by executive order or changes in regulations could do this or whether it requires Congress to pass a bill. (I would appreciate comments on this issue by those with more knowledge of the issues.)
The continuation of these U.S. immigration laws and policies will clearly be at the top of the Cuban agenda for the biannual round of bilateral discussion of migration issues in Washington, D.C. on November 30. Now Cuba will emphasize the recent Cuban migrant situation in Central America as an additional reason for prompt U.S. action.[7]
I originally was baffled by the U.S.’ continued assertions that there would be no changes in U.S. immigration policies regarding Cuba because those policies, in my opinion, are so illogical and inappropriate for countries with normal relations. Now I suspect that those assertions were based upon the Administration’s assessment of the difficulty (or impossibility) in obtaining Congressional approval of any necessary legislative changes on these issues and the Administration’s belief or hope that such assertions would discourage Cubans from immediately accelerating their plans or desire to leave Cuba for the U.S.
I reach these conclusions even though I suspect that Nicaragua’s precipitating the current problem in Central America was at the request of its close ally, Cuba, because, in my opinion, (a) Nicaragua would not do anything regarding Cuba against the latter’s wishes; (b) Cuba is concerned about the number of Cubans leaving the island and with Nicaragua’s assistance perhaps could stop a major route for such an exodus; (c) Cuba would like to have another occasion or reason to blame the U.S. for the problem; and (d) Nicaragua’s complaints against Costa Rica are absurd. I also believe, for similar reasons, that Ecuador’s recent requirement of visas for Cubans was at the request of Cuba.
The U.S. process for screening refugees only commences after representatives of the United Nations High Commissioner for Refugees screens and determines that an individual meets the international standard for refugees: an individual who has a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country.” [1]
Once an individual is determined to be a “refugee” by that U.N. agency and is designated for resettlement in the U.S., the U.S. commences its process for screening such an individual before he or she is permitted to come to the U.S. On November 19, 2015, Mr. Simon Henshaw, the U.S. Principal Deputy Assistant Secretary of State for Population, Refugees, and Migration, gave a special briefing on that U.S. process. [2] Here is what he had to say.
The U.S. “remains deeply committed to safeguarding the American people from terrorists, just as we are committed to providing refuge to the world’s most vulnerable people. We do not believe these goals are mutually exclusive or that either has to be pursued at the expense of the other.”
“All refugees go through the most intensive security screening of any travelers to the [U.S.]. It includes multiple federal intelligence, security, and law enforcement agencies, including the National Counterterrorism Center, the FBI Terrorist Screening Center, and the Departments of Homeland Security, State, and Defense. A refugee applicant cannot be approved for travel until all required security checks have been completed and cleared.”
“Syrian refugees go through yet additional forms of security screening. . . . We prioritize admitting the most vulnerable Syrians, including female-headed households, children, survivors of torture, and individuals with severe medical conditions. We have, for years, safely admitted refugees from all over the world, including Syrian refugees, and we have a great deal of experience screening and admitting large numbers of refugees from chaotic environments, including where intelligence holdings are limited.” In addition, the Government continues “to examine options for further enhancements for screening Syrian refugees, the details of which are classified.”
The “Department of Homeland Security has full discretion to deny admission before a refugee comes to the U.S. When in doubt, DHS denies applications on national security grounds and the individual never travels to the [U.S.]. Their decisions are guided by the key principle directed by the President and affirmed throughout the U.S. Government that the safety and security of the American people must come first. The U.S. Government has the sole authority to screen and decide which refugees are admitted to the [U.S.]. Security checks are a shared responsibility between the State Department and DHS.”
“All available biographical and biometric information is vetted against a broad array of law enforcement, intelligence community, and other relevant databases to help confirm a refugee’s identity, check for any criminal or other derogatory information, and identify information that could inform lines of questioning during the interview. DHS conducts extensive in-person interviews of all refugee applicants. Biographic checks against the State Department’s Consular Lookout and Support System, known as CLASS, which includes watch list information, are initiated at the time of a prescreening carried out by State Department contractors.”
“In addition, the State Department requests security advisory opinions from the law enforcement and intelligence communities for those cases meeting certain criteria. Biometric checks are coordinated by USCIS [U.S. Customs and Immigration Service] using mobile fingerprint equipment and photographs at the time of the interview.[3] These fingerprints are screened against the vast biometric holdings of the FBI, the integrated automated fingerprint identification system, and screened and enrolled in DHS’s Automated Biometric Identification System, which is known as IDENT.”
“Through IDENT, applicant fingerprints are screened not only against watch list information, but also for previous immigration encounters in the [U.S.] and overseas, including cases in which the applicant previously applied for a visa at a U.S. embassy. The classified details of the refugee . . . security screen process are regularly shared with relevant congressional committees.”
“The U.S. welcomed 1,682 vulnerable Syrian refugees in Fiscal Year 2015, and the President has directed his team to make preparations to admit at least 10,000 Syrian refugees in Fiscal Year 2016. Measured against more than four million Syrian refugees currently hosted in the Middle East, this is a modest but an important contribution to the global effort to address the Syrian refugee crisis.”
In addition, it has been widely reported that the U.S. screening of an individual Syrian refugee typically takes at least two years.
Conclusion
This account of the screening process should provide assurances to the American public that no additional procedures are necessary and that the recent bill to do that as passed by the House of Representatives is unnecessary.
U.S. immigration laws and policies regarding Cubans have reemerged into the spotlight. After a brief look at those laws and policies, we will examine the new controversy arising over Cubans in Central America.
In 1966, the U.S. adopted the Cuban Adjustment Act that provided certain immigration benefits to Cubans. In 1995 this statute was amended to allow anyone who fled Cuba and entered the U.S. to pursue permanent residency a year later.
In addition, the U.S. and Cuba in 1994 and 1995 entered into migration agreements to promote “safe, legal and orderly migration” between the two countries. Under one of its provisions, the U.S. agreed to stop permitting Cubans intercepted at sea to come to the U.S. On the other hand, this agreement did not touch on the U.S. practice and policy of admitting Cubans who arrive on land at a U.S. port of entry. This is the so-called U.S. “wet feet/dry feet” policy.
Since the U.S.-Cuba December 2014 rapprochement, the Cuban government repeatedly has complained about this Act and the wet feet/dry feet policy and has requested the U.S. to abolish them. The U.S., however, has consistently told the Cuban government that the U.S. was not planning to change its immigration policies regarding Cubans.[2]
As noted in an earlier post, since the December 2014 U.S.-Cuba rapprochement there have been increasing numbers of Cubans coming to the U.S. to take advantage of the provisions of the previously mentioned Act and policy before, they fear, those provisions will be rescinded. For example, more than 45,000 Cubans arrived at U.S. checkpoints along the Texas-Mexico border in the U.S. fiscal year ending September 30, 2015.
Many of the Cubans flew from Cuba to Ecuador, which allows them entry without visa; and from there they traveled by land through Colombia, Panama and Costa Rica with the objective of continuing through Nicaragua, Honduras, Guatemala and Mexico to the U.S. For all their current frustration over recent actions by Nicaragua, most of the Cubans’ anger is aimed at the Cuban government, which they accuse of cronyism, mismanaging the economy and limiting free speech. One of the Cubans, a teacher and a father of two, now in Costa Rica said that his grandmother had sold her house for $5,000 to pay for his passage to the U.S. and that he cannot return because his family is waiting for him to start sending money back.
This situation recently reached a new level with the precipitating events taking place in Central America. Over 1,500 Cubans on their migration have been in Costa Rica after initially being excluded from that country and then admitted after Costa Rica last Friday (November 13) said it would be issuing special seven-day transit visas to Cubans.
On Sunday (November 15), Nicaragua, a close ally of Cuba, closed its border with Costa Rica. This Nicaraguan action forced the Cubans to turn the Costa Rican side of a border station into a temporary shelter with makeshift beds, piles of luggage and improvised washing lines. Hundreds of others are being housed in buildings around a nearby small town.
Nicaraguan Military @ Its BorderCubans @ Costa Rican Bprder
Nicaragua simultaneously asserted that Costa Rica was creating a “humanitarian crisis” by allowing the Cubans into its country. Costa Rica was accused of “failing to comply with its obligations as a state” and of violating Nicaragua’s sovereignty.
The Nicaraguan complaint was confirmed the next day in a blistering press release in which it “deplores and condemns . . . the irresponsible, disrespectful attitude [towards] all international conventions and agreements on human mobility [by] Government of Costa Rica.” The latter allegedly had violated Nicaragua’s “national territory, our sovereignty” and had made “the unprecedented claim . . . [to the] right to determine the entry into our territory of people in a situation of illegality and violent behavior intended to” occur in Nicaragua. The statement also reported that on Tuesday (November 17), Nicaragua would bring this alleged “serious crisis” to the Security Commission of the Central American Integration System, SICA. Nicaragua also said it would present its complaint to the Community of Latin American and Caribbean States (CELAC).
Theses accusations immediately were rejected by Costa Rica, and on Tuesday (November 17) Costa Rica’s Foreign Minister Manuel Gonzalez proposed the creation of a “humanitarian corridor” for Cubans transiting Central America. “Countries have to prevent migrants falling into the hands of networks and coyotes, because remember that the migrants’ purpose is to arrive in the [U.S.] and we will try to do everything possible [for them] to achieve” that goal. The Foreign Minister also said that “Costa Rica is neither the origin nor the destination country for the Cubans, and the government has undertaken all necessary efforts to deal with this situation responsibly under the strict guidance of international treaties” and that he had not ruled out taking the migrant problem before the Organization of American States (OAS) and other international forums. In the meantime Costa Rica was trying to organize a meeting of the foreign ministers of the Central American countries and Mexico.
As indicated above, Nicaragua’s complaint was considered on Tuesday by a subcommittee of the Security Commission of the Central American Integration System, SICA, in preparation for the Thursday meeting of the Commission.[5]
At that later meeting, Nicaragua accused Costa Rica of attempting to avoid discussion of the issue at SICA and to “systematically block” Nicaragua’s request. It also was alleged that Costa Rica never warned Nicaragua that more than 1,900 Cubans were about to show up at the border. The Nicaragua Foreign Ministry’ s press release regarding this meeting again was blistering in its complaint against Costa Rica. It said the following:
Nicaragua denounced “the systematic blocking [by] . . . Costa Rica” of SICA’s considering the “irregular and illegal migration of Cubans.”
Nicaragua also denounced “the arrogance of Costa Rica . . . ignoring international law and agreements . . . has violated our territory, threatened and blocked Trade and International Freight, and is concentrating more Cuban citizens on our southern border, to pressure and blackmail our government.”
Costa Rica’s suggested humanitarian corridor would subject “Americans, including children, to “hazards, even dying, in an effort to reach the [U.S.]”
Nicaragua proposed that SICA demand that the U.S. provide reciprocity to Central American citizens seeking entry to the U.S. in the same manner that it treats Cuban migrants.
Costa Rica denied these allegations, and the subcommittee agreed on the need to see this issue from a holistic perspective and human rights, not as a security issue. Afterwards, Costa Rica’s Foreign Minister said, “The countries [of SICA] have reacted in a positive and supportive way. They have understood that the humanitarian aspect is at stake and should be tackled, comprehensively, by the entire region.”
On Monday (November 23) the SICA Council of Ministers of Foreign Affairs along with others, by invitation, from Cuba, Ecuador, Colombia and Mexico will meet to find a comprehensive solution to the situation.
On Tuesday (November 17), the Cuban Foreign Ministry issued a statement about the situation in Central America that gave greater prominence to its objection to the U.S. Cuban Adjustment Act and the dry feet/wet feet policy. Here are the main points of the Cuba statement:
These Cubans in Central America “have become victims of traffickers and criminal gangs which unscrupulously profit from their control of the passage of persons through South America, Central America and Mexico.”
“Cuban authorities have maintained ongoing contact with the governments of the countries involved, with the goal of finding a rapid, appropriate solution, which would take into consideration the wellbeing of the Cuban citizens.”
“The Ministry of Foreign Relations would like to emphasize that these citizens are victims of the politicization of the migration issue on the part of the United States government, the Cuban-American Adjustment Act, in particular, and the application of the so-called “wet foot-dry foot” policy, which gives Cubans differentiated treatment – the only one of its kind in the world – which admits them immediately and automatically, regardless of the route or means used, even if they arrive in an illegal manner to U.S. territory.”
“This policy encourages irregular immigration from Cuba to the United States, and constitutes a violation of the letter and spirit of Migratory Accords currently in effect, in which both countries assumed the responsibility to guarantee legal, safe, orderly emigration.”
The statement went on to object to another U.S. immigration policy affecting Cuba: “the U.S. government’s continued maintenance of the so-called Cuban Medical Professional Parole Program . . . to encourage Cuban doctors and other medical personnel to abandon their missions in third countries, and emigrate to the United States. This is a reprehensible practice, meant to damage Cuban cooperation programs, and deny Cuba and many countries the vital human resources they need.”
“The Ministry of Foreign Relations reiterates once again that the ‘wet foot-dry foot’ policy and the ‘Cuban Medical Professional Parole Program’ are inconsistent with the current bilateral context, impede to the normalization of migratory relations between Cuba and the United States, and create problems for other countries.”
“The Ministry of Foreign Relations confirms that Cuban citizens who have left the country legally, and abide by current Cuban migratory law, have the right to return to Cuba, if they so desire.”
Conclusion
I agree that special immigration benefits for Cubans arriving on land at U.S. ports of entry and the risk that they will be eliminated is prompting many Cubans to try to come to the U.S. as soon as possible. I also agree that these U.S. laws and policies should be eliminated as soon as possible.[7] Although I am a retired attorney, I have not attempted to determine whether the Obama Administration on its own by executive order or changes in regulations could do this or whether it requires Congress to pass a bill to do this. (I would appreciate comments on this issue by those with more knowledge of the issues.)
I also agree that the U.S. as soon as possible should abolish the Cuban Medical Professional Parole Program as discussed in prior posts.[8] Again I have not attempted to determine whether the Obama Administration on its own by executive order or changes in regulations could do this or whether it requires Congress to pass a bill to do this. (I also would appreciate comments on this issue by those with more knowledge of the issues.)
I originally was baffled by the U.S.’ continued assertions that there would be no changes in U.S. immigration policies regarding Cuba because those policies, in my opinion, are so illogical and inappropriate for countries with normal relations. Now I suspect that those assertions were based upon the Administration’s assessment of the difficulty (or impossibility) in obtaining Congressional approval of any necessary legislative changes on these issues and the Administration’s belief or hope that such assertions would discourage Cubans from immediately accelerating their plans or desire to leave Cuba for the U.S.
I reach these conclusions even though I suspect that Nicaragua’s precipitating the current problem in Central America was at the request of its close ally, Cuba, because, in my opinion, (a) Nicaragua would not do anything regarding Cuba against the latter’s wishes; (b) Cuba is concerned about the number of Cubans leaving the island and with Nicaragua’s assistance perhaps could stop a major route for such an exodus; (c) Cuba would like to have another occasion or reason to blame the U.S. for the problem; and (d) Nicaragua’s complaints against Costa Rica are absurd.
Now we will see what happens next Monday at the meeting of the foreign ministers of the SICA members and their guests.
On November 11-13, U.S. Secretary of Agriculture Tom Vilsack, a former Iowa Governor, visited Cuba.[1]
In his meeting with Ricardo Cabrisas Ruiz, a Council of Ministers Vice President, they discussed international economic relations, the interest of the U.S. agriculture sector in the island and obstacles to trade between the two countries caused by the U.S. embargo (blockade). Vilsack and the U.S. delegation are on the left in the above photo; the Cuban delegation, on the right.
At a meeting with Cuban Agriculture Minister, Gustavo Rodriguez Rollero, Vilsack said the U.S. was “very anxious to establish a positive working relationship with Cuba and to work together cooperatively in a number of issues.” These included organic farming, agricultural cooperatives, the Cuban experience in biotechnology, confronting common pests and diseases and the impact of climate change. They also talked about Cuban procedures for fruit and vegetable export certification and field inspections.
The U.S. delegation also had a meeting with Cuba’s Foreign Minister, Bruno Rodriguez, and Josefina Vidal Ferreiro, the Director General of U.S. Affairs at the Foreign Ministry.
Vilsack visited an agricultural market in Havana and was impressed by the fact that the vegetables and fruits came from hundreds of farms scattered throughout the city. “Urban agriculture is something that Cuba has long practiced and the United States wants to learn,” he said.
On a visit to two cooperatives, near the city, a member of one of the coop’s board of directors expressed confidence that Cuba’s new relationship with the U.S. will make life on the farm easier. The coop director said, “We believe that this represents something that will bring us improvement in every sense: production, better equipment, new tractors.”Vilsack, in turn, observed that it “was very clear that the farmers are people who have deep love for the land and the work they do for the citizens of their country.” He noted that they expressed their concern over problems with machinery, irrigation systems and tools needed to plant and harvest and the impact of climate change. But, he said, their creativity and innovation to maintain production levels were impressive.
In a press conference at the U.S. Embassy in Havana Vilsack said that lifting trade barriers with Cuba was a matter of “common sense” and promised to look for ways to relax existing measures. “We have work to do to identify those barriers, understanding and seeing what kinds of flexibilities may be to remove them or at least minimize them.” The Secretary also complimented Cuba’s reaction to the recent U.S. problems with avian flu. “Unlike other countries which decreed a general ban on importing U.S. poultry, Cuba “faced the problem regionally, looking state by state, which is the focus of international organizations and which is based on science.”
According to Vilsack, the U.S. stands to gain a significant portion of Cuba’s agricultural import market. That market is about $2 billion annually, with the U.S. holding about 16 percent. Before sanctions were put in place, the U.S. was responsible for nearly half. “There is no reason why if barriers can be reduced and eliminated that we wouldn’t be in a very competitive circumstance,” Vilsack stated that a number of U.S. agricultural products could be attractive in Cuba, including pork, corn, soybeans and poultry.
Important in this regard, said Vilsack, was the need for the U.S. to eliminate the ban on trade credit on U.S. agricultural exports to Cuba. A bill to do just that, Vilsack mentioned, recently had been introduced in the House of Representatives by Congressman Rick Crawford (Rep., AK).[2]
“Trade is a two-way street,” Vilsack said. “Consumers in the U.S. are interested in having a variety of products throughout the year and [U.S. agricultural] imports have reached record levels in recent years. One of the challenges we have when ending the embargo [blockade] is a container that comes with products to Cuba should return to the U.S. with Cuban products. This is common sense.” Such Cuban exports would be assisted by the U.S.’ having an office in Cuba for the Agriculture Department’s Foreign Agricultural Service and Animal and Plant Health Inspection Service personnel to facilitate technical conversations and addressing any problems in Cuba’s meeting U.S. requirements.
Moreover, Vilsack noted that Cubans have embraced organic agriculture, one of the fastest-growing U.S. food segments. Cuba has a strong organic sector because it hasn’t had access to chemicals and pesticides. “They had no other alternative but to be organic.” Vilsack emphasized that this is an opportunity for Cuba because only 1 percent of America’s land mass is committed to organic production. “There is no question the demand is there.”
Vilsack was accompanied by Democratic Senator Jeff Merkley (Oregon) and three Democratic members of the House of Representatives: Kurk Schrader (Oregon), Suzan Delbene (Washington); and Terri Sewell (Alabama) as well as other representatives from the Department of Agriculture and the Chargé d’Affaires of the U.S. Embassy in Havana, Jeffrey DeLaurentis.
[2] On October 6, 2015, Representative Rick Crawford introduced H.R. 3687, the Cuba Agricultural Exports Act, on behalf on himself and House Agriculture Committee Chairman Michael Conaway (Rep., TX) and Representative Ted Poe (Rep., TX) with 11 other Republican and 2 Democratic cosponsors. Crawford said this bill “would repeal restrictions on export financing and give producers access to Department of Agriculture marketing programs that help the US compete in foreign markets. Further, this legislation enables limited American investment in Cuban agribusinesses, as long as US regulators certify the entity is privately-owned and not controlled by the Government of Cuba, or its agents.” Crawford concluded, “ I believe that agriculture trading partnerships with Cuba will help build a foundation of goodwill and cooperation that will open the door to long-sought reforms in the same the way that American influence has brought reform to other communist states.” (Crawford, Crawford Introduces Cuba Agricultural Exports Act (Oct. 6, 2015); Poe, Cuba Agricultural Exports Act (Oct. 7, 2015).
On July 27 the U.S. Department of State released its 2015 Trafficking in Persons Report, which upgraded Cuba from Tier 3 (a country that did “not fully comply with the [Trafficking in Persons Protection Act] minimum standards and [was] not making significant efforts to do so”) to Tier 2.Watch List (a country that did not fully comply with [that statute’s] minimum standards, but [was] making significant efforts to bring [itself] into compliance with those standards).[1] A prior post reviewed that report’s discussion of Cuba and expressed disagreement with its assertion that Cuban medical personnel’s participation in foreign medical missions was illegal forced labor.
Since then there has been congressional criticism and concern about that report’s upgrading of several countries, including Cuba, as seen in recent congressional hearings.
The most recent hearing was on November 4, before a House of Representatives subcommittee. Most of the hearing was devoted to the report’s upgrading of Malaysia, Uzbekistan and China.[2]
Alex Lee
Cuba’s upgrade was the focus of the testimony at this hearing by Alex Lee, Deputy Assistant Secretary of State in the Bureau of Western Hemisphere Affairs. He testified that the shift in U.S.-Cuban relations did not influence the decision on Cuba. “It was completely separate,” he told the subcommittee.
Mark Lagon
This assessment of Cuba was challenged by the testimony at this hearing of Mark Lagon, the President of Freedom House. He stated that “Freedom House ranks Cuba as ‘Not Free’” and that the Department’s “grounds for an upgrade are deeply questionable.” Indeed, Lagon said, the Department’s report itself undercuts any rationale for an upgrade when it states: (a) “The penal code does not criminalize all forms of human trafficking on paper, not to speak of enforcement.” (b) “The Cuba regime did not even dissemble and claim any ‘efforts to prevent forced labor’ nor ‘any trafficking-specific shelters.” Moreover, according to Lagon, “It is far-fetched to suppose that there is no forced labor in state enterprises or for political prisoners in one of the world’s few remaining Marxist-Leninist states. Also, a burgeoning sex industry – welcoming sex tourism – fuels exploitation, despite steps the Report notes taken by Cuba to address sex trafficking.”
Rep. Chris Smith
The attitude towards Cuba of this subcommittee’s chair, Christopher Smith (Rep., NJ), was revealed in his press release on July 27 (the date of the release of the 2015 TIP report), when he said, “For political reasons alone, President Obama has done a grave disservice to victims of human trafficking in Cuba . . . by upgrading the human trafficking tier rankings in those countries in the annual Trafficking in Persons report.” He added, “It seems quite clear that . . . Cuba’s unchecked march to normalized relations have captured the Obama Administration’s ability to properly access the worst of the worst when it comes to fighting to protect trafficking victims and punish the thugs who mastermind this modern day slavery. It is no coincidence that earlier this year the Obama Administration also removed Cuba from the national list of state sponsors of terrorism. One-by-one this Administration is overriding human rights and national security policies for another agenda.”
The same issue of the objectivity of the TIP Report was considered on September 17 by the U.S. Senate Committee on Foreign Relations at a closed briefing by Anthony Blinken, Deputy Secretary of State, entitled “State Department Processes in Establishing Tier Rankings for the 2015 Trafficking in Persons Report.” As the briefing was closed, we do not know what happened although at another hearing on September 22 Chairman Bob Corker (Rep., TN) mentioned that after this briefing he had made a request to the State Department for three unspecified items of information about the 2015 report.
Susan Coppedge
Related to the issue of the objectivity of the 2015 TIP Report was the September 22 hearing by the Senate Committee on Foreign Relations on the nomination of Susan Coppedge to be the Ambassador-at-Large and Director of the State Department’s Office to Monitor and Combat Trafficking in Persons.
Although her written and oral testimony did not touch on Cuba, she made certain commitments if she were confirmed by the Senate, that bear on the overall issue of the objectivity of such future reports. Those commitments included the following: (a) “to use this position passionately to advocate for the rights of individuals to be free from forced labor or sex trafficking, for victims of human trafficking to have access to comprehensive services, for survivors to be empowered to have a voice in policy, and for an end to the trafficking of human beings;” (b) “to uphold the integrity of the annual Trafficking in Persons (TIP) Report and its tier rankings, including by ensuring the facts from the field are accurately presented in the report;” and (c) “to maintain a close working relationship with Congress and with those federal agencies engaged in the fight against human trafficking.”
Senator Bob Corker
At the hearing all the members in attendance expressed support for the nomination, and afterwards Chairman Corker released a statement reiterating his strong support.[3]
Conclusion
The issue of the objectivity of the 2015 TIP Report regarding Cuba and certain other countries still has not been resolved, and I am confident that we will hear more about this issue from Congress.
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[1] The Tier 2 Watch List also requires that “a) The absolute number of victims of severe forms of trafficking is very significant or is significantly increasing; b) There is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year; or c) The determination that a country is making significant efforts to bring itself into compliance with minimum standards was based on commitments by the country to take additional future steps over the next year.”
Underlying Cuba’s desire for normalization with the U.S. and its ability to achieve this goal are two realities that do not receive the attention they deserve. First, Cuba has a rapidly aging and declining population. Second, Cuba has very little cash to purchase goods and services in international markets. Both of these adversely affect Cuba’s desire and ability to achieve normalization.
Aging and Declining Cuban Population
Cuba already has the oldest population in all of Latin America. Experts predict that 50 years from now, its population will have fallen by a third and more than 40 percent of the country will be older than 60.[1]
This is a demographic crisis with both economic and political consequences. The aging population will require a vast health care system, the likes of which the state cannot afford. And without a viable work force, the cycle of flight and wariness about Cuba’s future is even harder to break, despite the country’s halting steps to open itself up to the outside world.
“We are all so excited about the trade and travel that we have overlooked the demographics problem,” said Hazel Denton, a former World Bank economist who has studied Cuban demographics. “This is a significant issue.”
Young people are fleeing the island in big numbers, fearful that normalization of relations with the U.S. will lead to the end of a policy that allows Cubans who make it to the U.S. to become naturalized U.S. citizens.
Over the past two years, an estimated 100,000 Cubans have streamed into the U.S., legally and illegally. Most of them fly to another country in Latin America and then make treacherous journeys by land to the U.S. border with Mexico. Thousands of others obtain family reunification visas and travel directly to the U.S. Those without money or helpful relatives flee Cuba on rafts.
The surge began in 2013 after the Cuban government eliminated the need for exit permits, and got bigger after Washington and Havana announced plans in late 2014 to end 50 years of hostility and re-establish relations.
For the fiscal year that just ended on September 30, nearly 4,500 Cubans reached U.S. soil in rafts, were caught at sea by the U.S. Coast Guard or were otherwise thwarted while trying to flee.
The younger people remaining on the island are reluctant to have children, citing the strain of raising an infant in a country where the average state salary is just $20 a month. Scant job opportunities, a shortage of available goods and a dearth of sufficient housing have encouraged younger Cubans to wait to start a family, sometimes indefinitely. In addition, abortion is legal, free, without stigma and commonly practiced. Cuba’s reported birth rate is one of the lowest in the world while its abortion rate is one of the highest.
One possible response to this demographic challenge is for the Cuban government to encourage the vast Cuban expatriate population to come home. But such an effort, in my opinion, would have to be backed by realistic opportunities to thrive and succeed economically, and this does not appear likely in the near future at least.
Another facet of Cuba’s aging population is the dying of those who fought with Fidel and Ché in the Revolution of 1959. In short, “the revolution and its heroes are fading.” According to a journalist, “many younger Cubans feel the weight of the revolution as a challenge to their future rather than as its foundation.” They “have little patience for revolutionary rhetoric, and they are frustrated by the dearth of economic opportunity in the country, despite the diplomatic thaw with Washington. They want to see change in their lives, and revolutionary talk sounds to many like a distraction from their struggles.”[2]
Cuba’s Financial Problems
Cuba is now finding it difficult to purchase goods and services from foreign suppliers. It has little cash to do so. This is resulting from low prices for nickel, which is one of its main exports; the economic crisis in Venezuela, which is one of Cuba’s major allies; and a Cuban drought. These adverse factors apparently are not offset by increased foreign tourism on the island after the U.S.-Cuba rapprochement. State companies are being forced to cut imports and to seek more liberal payment terms from foreign suppliers.[3]
The financial arrangements with Venezuela are complicated. First, Cuba receives oil on favorable terms and refines and resells some of it in a joint venture with its socialist ally, but prices for refined products are down in tandem with crude prices. Second, Cuba sends medical professionals to Venezuela, but experts believe the amount paid to Cuba for their services is tied to oil prices, meaning Venezuela would pay less to Cuba when such prices are down.
Another sign of these economic challenges is Cuba’s recent agreement with Spain to restructure Cuba’s short-term debts. Spain forgave Cuba for its defaulted interest and principal; restructured the residual principal payments for a period of ten years; and granted a three-year grace period for repayment of principal. The total principal of this debt was 201.5 million Euros.[4]
Earlier other countries also wrote off significant Cuban indebtedness: Russia, $32 billion in July 2014; Mexico, $487 million in December 2013; Japan, $1.4 billion in 2012; and China, $6 billion (restructuring) in 2010. Cuba’s debt problem with Japan, however, was not resolved after the 2012 agreement when Cuba failed to make payments thereunder, and this year the two countries are trying to resolve the debt issue as they seek to expand trade.[5]
Conclusion
These two realities, in my opinion, help to explain why normalization is not producing immediate expansion of business between the U.S. and Cuba.[6] Yes, the U.S. embargo, which is still in place, adversely affects Cuba’s foreign trade and should be ended by the U.S. as soon as possible. But ending the embargo does not directly affect these two realities that are major impediments to such trade.
Once again I invite comments of supplementation or correction, especially on Cuba’s foreign indebtedness.
On November 10 the U.S.-Cuba Bilateral Commission held its second meeting, this time in Washington, D.C.[1]
Before addressing specific topics of possible agreement, the Cuban delegation reiterated its insistence “on the necessity to lift the [U.S. embargo] blockade as a top priority, for it continues to affect the Cuban people as well as Cuba’s operations and relations with third countries, given its extraterritorial scope, and hinders the development of normal economic and commercial relations with the United States. Likewise, the Cuban delegation reiterated that the elimination of this policy is essential for the normalization of relations, in addition to the solution of other pending problems that are harmful to the sovereignty of Cuba, such as the [alleged] illegal occupation of a portion of Cuban territory by the Guantánamo Naval Base, and the continuation of the illegal radio and television broadcasts from the United States to Cuba and the programs intended to destabilize and subvert Cuba’s constitutional order.”
After the meeting, Josefina Vidal, Cuba’s head of North American affairs, told reporters that agreements on flights, environmental protection, direct postal service and the fight against drug trafficking are very likely by the end of the year.
Granma, the Cuban newspaper, also reported that the Commission agreed to continue exchanges on human rights, maritime and port security, application and enforcement of law, climate change, migration, human trafficking and health (including confronting pandemics and infectious diseases).
The U.S. Department of State issued a similar report about this meeting. It said the meeting “provided an opportunity to review progress on shared priorities, including regulatory issues, telecommunications, claims, environmental protection, human trafficking, human rights, migration, and law enforcement,” The statement added that the meeting “took place in a respectful, cooperative, and productive environment.”
A Cuban diplomat said after the meeting that despite these areas of progress, commercial transactions between the two countries were impeded by U.S. restrictions on use of the U.S. Dollar in such transactions. Examples of this problem were the recent cancellations of several U.S. charter flights to Cuba because of the airlines difficulties in getting advance payments to Cuba for landing fees and mandatory health insurance for travelers. An observer thought this was due to U.S. banks’ fear of being subjected to large fines for illegal transfers and of uncertainties about the implementation of new U.S. regulations. [2]
The first Commission meeting was held in Havana this past September as discussed in a prior post. The next meeting will be next February in Havana.
