Central America – dwkcommentaries

Increasing Migrant Crossings at U.S. Border Call for Legal Changes

This July more than 130,000 migrants were apprehended at the U.S.-Mexico border. The fastest growth in this immigration, with 40,000 of the total, was in the Border Patrol’s Tucson sector, which comprises most of Arizona, which was the most since April 2008. U.S. authorities attribute this increase to smugglers now guiding migrants to the border across the most remote and harsh stretches of the Arizona desert between Yuma and Tucson to avoid detection. [1]

Crossing in desert areas in the summer can be deadly, with ground temperatures well exceeding 100 degrees Fahrenheit at times, officials say. Such extreme conditions have led to a spike in 911 calls. Agents responding to such calls for help routinely find dozens or even hundreds of migrants in need of aid and trying to surrender to arriving border agents.

Cuba is experiencing growth in out-migration. Social-media advertisements on the island have recently increased offering door-to-door transportation to the U.S. through flights from Cuba to Nicaragua and ground travel across Central America and Mexico. Although new Biden policies require Cubans to have a U.S. citizen-sponsor for legal entry to the U.S., many Cubans do not have such sponsors and some officials say, “For ordinary Cubans, finding a sponsor who has money in the U.S. is Mission Impossible.”[2]

Another indication of this migrant pressure is the recent guilty plea by the owners of a Williamsburg, Virginia cleaning business who operated a “labor trafficking enterprise” that smuggled over 100 migrants from El Salvador, including minors, and forced them to work in U.S. under threats of violence and deportation.[3]

Recommended Changes

Andrea R. Flores, who served as an immigration policy adviser in the Obama and Biden administrations, says, “Until Congress finds the political will to act, the president should use his authority to relieve pressure on our asylum system and give migrants the ability to legally work once they reach the United States.”[4] To that end, she recommends the following:

“While far from perfect, the Biden administration’s parole program for Cubans, Haitians, Nicaraguans and Venezuelans could serve as a model for what is possible. This policy provides safer options to people who are unlikely to meet the legal requirements for asylum, but who still have urgent humanitarian reasons to flee their homes.”
The President should “use his authority to grant Temporary Protected Status to the hundreds of thousands of Venezuelans who lack work authorization, which would be a boon for immigrants and the communities that welcome them. A 2023 analysisby FWD.us, a bipartisan group founded by American business leaders that favors more humane immigration reform, found that T.P.S. holders contribute $22 billion in wages annually to the U.S. economy.”
“The administration should also act quickly to increase the number of appointments at ports of entry; add new countries eligible for parole; lift caps on countries with urgent resettlement needs, as it did for Ukraine; and invest resources in adjudicating asylum cases expeditiously.”

Noted commentator, Fareed Zakaria, points out the obvious: “America’s immigration system is broken.” [5]Therefore, he says the following: “The laws and rules around asylum must be fixed so that immigration authorities can focus on the small number of genuine asylum seekers while compelling the rest to seek other legal means of entry. At the same time, it’s important to note that the United States is facing a drastic shortfall of labor and must expand legal immigration in many areas for just that reason. We urgently need to attract the world’s best technically skilled people so that they can push forward the information and biotech revolutions that are transforming the economy and life itself. With unemployment rates around 50-year lows, it is obvious that we need more workers in many sectors of the economy, from agriculture to hospitality. If this is done in a legal and orderly manner, Americans will welcome the new workers.”

Therefore, he says Biden “should propose an immigration bill that is genuinely bipartisan and forces compromises from both sides. It would be one more strong dose of evidence that policy can triumph over populism.” Good luck on doing that.

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[1] Perez & Caldwell, Migrant Crossings on the Rise Again at U.S. Border,W.S.J. (Aug. 12, 2023); Miroff & Sacchetti, Border arrests surged in July, a blow to Biden immigration plan, Wash. Post (Aug. 1, 2023).

[2] Perez & Caldwell, Migrant Crossings on the Rise Again at U.S. Border, W.S.J. (Aug. 12, 2023).

[3] Paul, Laundry company owners guilty of trafficking migrants, minors for labor, Wash. Post (Aug. 13, 2023).

[4] Flores, We Know What Doesn’t Work at the Border. Here’s a Better Solution, N.Y. Times (Aug. 10, 2023).

[5] Zakaria, Immigration can be fixed. So why aren’t we doing it?, Wash. Post (Aug. 11, 2023).

Objections to Proposed U.S. Rule Changing Asylum Procedures

The U.S. Department of Justice’s Executive Office for Immigration Review (EOIR) has proposed a rule that would significantly shorten the time for asylum seekers to file their paperwork for asylum and to amend that paperwork.[1] Given my experience as a pro bono attorney for such individuals, I filed with the EOIR a comment objecting to that proposed rule. Here is that comment followed by another objection by a Minnesota lawyer and friend, Steven Thal.

My Objection to the Proposed Rule[2]

“I am writing to oppose EOIR’s proposed rule to curtail human rights of asylum seekers by limiting timelines for applications and unlawfully restricting the type of evidence presented. The rule represents yet another attempt to restrict the right of people to obtain protection from persecution and torture—rights that the U.S. has agreed to meaningfully implement. By putting up nearly-insurmountable obstacles in that process, this proposed rule violates the rights of asylum seekers and, therefore, U.S. and international law. For the following reasons, I request that this rule be withdrawn in its entirety.”

I.“The 15-day filing deadline for asylum- and withholding-only removal proceedings will contravene our international and domestic laws.”

”The proposed rule will violate our obligations under the UN Refugee Convention and U.S. law by impinging on the ability for people in asylum- and withholding-only proceedings to adequately prepare their case. The rule proposes to require filing within 15 days of the person’s first hearing. For most in asylum- and withholding-only proceedings, this will be an impossible task as many are recently-arrived in the U.S., lack sufficient language skills to prepare a filing that must be in English, lack the resources to pay the now-required $50 fee, and are unlikely to secure reliable counsel on that timeline. Asylum seekers are entitled to present their case and be represented by counsel. This new rule infringes on those rights and must be withdrawn. Moreover, the rule will unduly impact attorneys and service providers—particularly nonprofit providers—who will be overburdened and unable to find pro bono counsel willing to complete applications on such a timeline”

II.“The proposed restrictions on evidence are a blatant attempt to deny asylum protections and improperly restrict due process.”

“The proposed changes to evidence are unlawful and blatantly targeted to discourage asylum applications. This violates our obligations under the UN Refugee Convention as well as U.S. law.”

“The proposed rule proposes to make all evidence other than U.S. government reports presumptively unreliable. Such change would allow immigration judges to discount local and international news sources, reports by both local and international nongovernmental organizations and even United Nations reports. The only evidence under the new rule that would be presumed credible would be reports prepared by the U.S. Government, i.e., opposing counsel in an asylum case.”

“This rule is unjustified and must be withdrawn as local and international sources provide nuanced and expert analysis that the U.S Government reports often lack due to capacity, know-how and diplomatic pressures. Moreover, because U.S. Government reports will be prepared by the same branch as the opposing counsel in asylum cases, the rule violates basic understandings of due process rights by presumptively finding one side credible. And, the rule allows immigration judges to introduce their own evidence into the record, further violating due process by eliminating their role as a neutral arbiter.”

III. “The proposed 30-day timeframe for correcting errors will deny asylum to those who need protection, thereby contravening international and domestic law on nonrefoulment.”

“The proposed rule further violates asylum seekers’ rights by restricting their ability to file an application. The proposed rule, though espousing efficient processing of applications, removes the requirement that EOIR return an application within 30 days of filing or presume it properly filed. Yet, it then gives the asylum seeker only 30 days to correct any deficiencies and will deem abandoned and deny any application not corrected in that time. This rule is a clear attempt to allow the Government to deny bona fide asylum claims under the guise of procedural efficiencies. Moreover, it will violate our international nonrefoulment obligations by denying asylum applications due to procedural defects rather than substance and, therefore, returning people to countries in which they will be persecuted or tortured.”

IV. “The proposed 180-day case completion timeline and restrictions on continuances improperly penalizes asylum applicants for the court’s inefficiencies.”

“The proposed rule passes-on to the applicant the inefficiencies and failure of EOIR to provide sufficient resources—while eliminating case management techniques such as administrative closure—by requiring applications be adjudicated within 180 days absent a very limited set of exceptional circumstances. The rule will mean in practice that bona fide asylum applicants are denied and removed to countries in which they will face persecution or torture because they will be foreclosed from requesting continuances to sufficiently prepare their case. By essentially barring continuances and demanding immigration judges adjudicate cases on impossible timelines given backlog and complexity of asylum cases—as well as the myriad new restrictions and processing requirements created over the past four years— the proposed rule will result in improperly decided cases, increasing the rate of appeals and threatening to deny those who truly need our protection. Such a timeline will also present immense challenges to attorneys and pro bono service providers who will be challenged to represent clients to the best of their abilities without the ability to request time to prepare. This infringes on the due process rights of asylum clients and should be withdrawn.”

V. “My Personal Experience As a Pro Bono Asylum Lawyer Demonstrates the Utter Insanity of this Proposed Regulation.”

“In the mid-1980s I was a partner in a major Minneapolis law firm with 20 years of experience representing fee-paying clients in business litigation. I had not studied immigration law in law school or thereafter and had no knowledge of that field in general or refugee and asylum law in particular. But for various professional and personal reasons, I decided that I wanted to be a pro bono lawyer for an asylum seeker from Central America.”

“Fortunately for me and many other Minnesota lawyers, then and now, a Minnesota non-profit organization—[Minnesota] Advocates for Human Rights—provided a course in refugee and asylum law for lawyers like me and the support of experienced immigration lawyers that enabled me and others, then and now, to become pro bono asylum lawyers.”

“With that support from this system and my law firm, I thus embarked in the mid-1980’s on my first pro bono case for a Salvadoran asylum seeker and tried the case in the Immigration Court with the assistance of an experienced immigration attorney. We lost the case, but filed an appeal to the Board of Immigration Appeals, and under the laws at that time our client maintained his work permit and continued to live and work in the Twin Cities.”

“Thereafter with the assistance of [Minnesota] Advocates for Human Rights I was a pro bono attorney for another Salvadoran asylum seeker, whose case prompted me in April 1989 to go to that country, at my own expense, to do some investigations in his case and learn more about that country more generally. This trip was during the Salvadoran Civil War and on the day that I arrived her attorney general was assassinated with a car bomb. That subsequent week, therefore, was tense and dangerous, but to my surprise turned out to be the most important religious experience of my life as I started to learn about the courageous work of Archbishop (now Saint) Oscar Romero, the Jesuit priests at the University of Central America (six of whom were murdered by the Salvadoran military later that same year), Bishop Menardo Gomez of the Lutheran Church of El Salvador and many others. Afterwards my second Salvadoran client was granted protection by the Immigration and Naturalization Service.”

“In the 1990s I was a successful pro bono lawyer for an Afghan’s affirmative application for asylum and later for U.S. citizenship. Thereafter until my retirement in 2001 I also had success as a pro bono attorney for asylum seekers from Colombia, Somalia and Burma. All of this was made possible by the assistance of Advocates for Human Rights and experienced immigration lawyers and by the support of my law firm.”

“As a result of this experience, I can testify that asylum seekers in the U.S. desperately need the assistance and guidance of able pro bono attorneys since almost all such individuals do not have the financial resources to retain fee-based attorneys.”

“Moreover, I can testify to the time constraints associated with such pro bono representation.”

“First, organizations like Advocates have procedures to screen potential asylum applicants and identify those who appear to have credible claims and then seek to find an a competent attorney who is willing to represent, pro bono, such applicants. These organizations also have to develop and produce at least annual programs to educate potential pro bono attorneys about refugee and asylum law and develop other ways to recruit such lawyers to volunteer their services to asylum seekers. That takes time and effort and financial support by charitable contributions from the community. Advocates for Human Rights continues to be successful in these efforts.”

“Second, once an attorney agrees to take such a case, pro bono, he or she needs to fit that case into his or her caseload and obligations to existing clients, especially fee-paying clients. Once the attorney starts working on the pro bono asylum case, he or she may identify documents that need to be obtained from another place in the U.S. or foreign country and/or need to be translated from a foreign language into English. An interpreter may be needed for conferences with the client or other witnesses. Eventually the attorney must prepare documents for the asylum application and appear with the client in Immigration Court or at interviews on affirmative claims. In addition, the case may require the attorney to travel to another location. All of these actions by an attorney are necessary to provide competent advice and service to the pro bono client and all have their time requirements.”

“Third, these time pressures on the relevant non-profit organizations and pro bono asylum attorneys are even more intense now in the midst of the COVID-19 Pandemic disruptions and complications.”

“In short, it would be impossible under the proposed regulation for asylum seekers to obtain the competent pro bono representation they so desperately need. The proposed regulation is utter insanity.”

Steven Thal’s Objection to the Proposed Rule[3]

“I have been practicing immigration law since 1982 in Minneapolis, Minnesota. I also am a past Chair of the Immigration Section of the Minnesota State Bar Association. I have served as a past Chair of the Minnesota/Dakotas American Immigration Lawyers Association (AILA) Chapter and previously served as its Vice Chair and Secretary/Treasurer. I have served on the AILA Essential Workers Committee, AILA Immigration Works Committee. The law firm I established currently has three full-time associate attorneys involved in our practice. (www.thalvisa.com.)”

“First, I endorse the comments on this proposed rule made by my friend and fellow Minnesota attorney, Duane W. Krohnke (Comment Tracking Number: kgl-2g3o-0vel.) “

“Second, although my two associates and I along with other full-time Minnesota immigration attorneys represent some asylum seekers on a pro bono basis, the demand for such services exceeds our collective ability to do so. Therefore, we need the assistance of non-immigration attorneys to be pro bono lawyers for other asylum seekers after these lawyers have obained education about asylum law from Advocates for Human Rights. In short, the only way that asylum applicants in the Twin Cities and Minnesota can obtain a pro bono attorney is through organizations like Advocates.”

“Third, I would add that it would be nearly impossible to meet the proposed deadlines in this proposed rule given the difficulty in reaching clients who are in detention in remotely held jail facilities, especially since ICE can move these individuals without prior notification. Just getting a G-28 Notice of Appearance of Attorney signed is a logistical nightmare. Gathering evidence, locating witnesses, obtaining supporting evidence cannot be accomplished effectively within the short times in the proposed rule.”

Conclusion

For the foregoing reasons, we call on the Department to withdraw the proposed rule in its entirety.

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[1] Executive Office for Immigration Review (EOIR), Procedures for Asylum and Withholding of Removal (Sept. 23, 2020).

[2] Comment on FR Doc # 2020-2107, EOIR Procedures for Asylum and Withholding of Removal (by Duane Krohnke) (Oct. 22, 2020), Comment ID: EOIR-2020-0005-1113;Tracking Number kgl-2g3o-Ovel.

[3] Comment on FR Doc # 2020-2107, EOIR Procedures for Asylum and Withholding of Removal (by Steven Thal) (Oct. 22, 2020) Comment ID: EOIR-2020-0005-????; Tracking Number: 1K4-0jny-mh2v.

Other Current Developments Regarding Cuban Migrants to U.S

When the U.S. decided on January 12 to end immediately the “dry foot/wet foot” immigration policy, as discussed in a prior post, two groups of Cubans faced immediate consequences.

First, many Cubans are stranded in Mexico or Central America unable to be allowed into the U.S. without a visa. Now many of them are waiting in place on the hope that Donald Trump after his January 20 inauguration will reverse the January 12 cancellation of that policy or make an exception for those in limbo.[1]

Alternatively if any of them are fleeing “persecution” in Cuba, they first must satisfy a “credible fear” test at the U.S. border and then subsequently apply for asylum in the U.S. They, however, will generally be held in immigration detention for potentially months and success is far from guaranteed. It can take years for asylum to be granted given the crushing caseloads for U.S. asylum officers and immigration judges.

Second, also affected is a group of Cubans known as Marielitos who are in the U.S., and whose situation requires a historical explanation.[2]

From April through October 1980, pursuant to Fidel Castro’s decision, nearly 125,000 Cubans were allowed to leave the island by boat from the port of Mariel on the north coast of the island west of Havana. Most were law-abiding, but some had just been released, by Fidel’s orders, from Cuban prisons and mental institutions. Within a few years after their arrival in the U.S. almost 3,000 of the “Marielitos” were in U.S. prisons after convictions for committing new and serious crimes in the U.S.

The Cuban government in 1984 agreed to take back 2,746 of these criminal Marielitos. But the U.S. deportations were slow and in some years did not take place at all. At one point, Marielitos who had been awaiting deportation for years rioted in several cities.

Now nearly 250 of this group of 2,746 have died, and, by June of last year, 478 of the original 2,746 remained in the U.S., but some of this smaller group are elderly or very ill, and the U.S. government has lost interest in deporting some of them.

The January 12, 2017, agreement between the U.S. and Cuba allows the U.S. to deport or remove up to 500 of the 2,746 Marielitos and send them back to Cuba, which agreed to accept them. Moreover, Cuba has agreed to accept other Marielitos who have been convicted of crimes in the U.S. as part of this group of 500, but were not part of the original group of 2,746.

I have a personal connection to one of the Marielitos. Before I retired from practicing law in June 2001, I was appointed by Minnesota’s federal court to represent, pro bono, one of them who was in immigration detention at the federal government’s medical facility in Rochester, Minnesota (the site of the famous Mayo Clinic). He had been convicted of a serious crime in Rhode Island, as I recall, and after completion of his criminal incarceration, the U.S. put him in immigration detention for deportation or removal to Cuba, but Cuba would not accept him back. Although he was not an attorney, he had filed, pro se, a habeas corpus petition with Minnesota’s federal court, and my task, as his pro bono attorney, was to analyze and submit a legal brief in support of that petition. I did so.

Before the government submitted a response to my legal brief and before the court had to make a decision on the petition, the U.S. government decided to permit my client’s release from immigration detention. At the Rochester medical facility, he was suffering from a terminal disease, and I believed the government’s decision for his release was not based on the quality of my legal arguments, but on its desire to reduce its costs of keeping him in that facility.

Not long after my “successful” representation of this Marielito and his release from the Rochester facility, my legal argument was upheld by the U.S. Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001), holding that the Constitution did not permit the U.S. to detain indefinitely immigrants under order of deportation whom no other country will accept. To justify detention of immigrants for a period longer than six months, the government was required to show removal in the foreseeable future or special circumstances.

Four years later, the U.S. Supreme Court decided, 7-2, in Clark v. Martinez, 543 U.S. 371 (2005), that the Zadvydas decision applied to Marielitos, whose return Cuba would not permit.

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[1] Assoc. Press, Cuban Migrants Steps From US Border Hope for Trump Solution, N.Y. times (Jan. 14, 2017); Assoc. Press, US Policy Change on Cuban Migrants Leaves Many Stranded, N.Y. Times (Jan. 13, 2017).

[2] Robles, ‘Marielitos’ Face Long-Delayed Reckoning: Expulsion to Cuba, N.Y. times (Jan. 14, 2017); Mariel boatlift, Wikipedia; Greenhouse, Supreme Court Rejects Mariel Cubans Detention, N.Y. Times (Jan. 13, 2005); Zadvydas v. Davis, Wikipedia; Zadvydas v. Davis, 533 U.S. 678 (2001); Clark v. Martinez, Wikipedia; Clark v. Martinez, 543 U.S. 371 (2005).

Other Signs of Cuban Regime’s Distress Over Economy

The recent Congress of the Communist Party of Cuba displayed the difficulties Cuban leaders are having in developing a mixed economy with private enterprise (the non-state sector) competing against the dominant state business enterprises. As prior posts have reported, Cuban leaders at the Congress admitted that the state-owned entities were having difficulty in such competition and the non-state sector was increasing its share of the Cuban economy while the leaders simultaneously railed against President Obama’s effective advocacy of free enterprise to the Cuban people.[1]

Now we see two other signs of the Cuban regime’s near panic over this situation.

Firing of Professor Omar Everleny Perez

First, it is now being revealed that on April 8 (three weeks after Obama’s visit to Cuba), the University of Havana fired Professor Omar Everleny Perez, one of the country’s best-known academics, an expert in developing economies who served as a consultant for Castro’s government when it launched a series of market-oriented economic reforms in 2011. He has made many well-known trips to universities and conferences in the U.S. and frequently received foreign visitors researching the Cuban economy, but was fired for allegedly having unauthorized conversations with foreign institutions and informing “North American representatives” about the internal procedures of the university.[2]

Perez said he believed Cuban authorities were seeking to make an example of him not because of the allegations in the letter, but because of his critical writings about the slow pace of economic reforms. Armando Chaguaceda, a Cuban political scientist based at the University of Guanajuato in Mexico, shared that view. He said, “His call to speed up the reforms and make them coherent may have served to frighten some of the forces of immobility in the bureaucracy. It’s a terrible message to economists that will affect the government’s own capacity to hear feedback about its reforms.”

Perez is not the only Cuban academic to be sanctioned by the authorities in recent years. Political scientist Esteban Morales was expelled from the Communist Party in 2010 for two years for denouncing corruption. Sociologist Roberto Zurbano lost his job at a state cultural center after discussing racism in Cuba in an editorial published in the New York Times. In 2013, musician Roberto Carcasses was temporarily barred from cultural institutions after criticizing the government during a concert, and director Juan Carlos Cremata was prevented last year from putting on a production of Eugene Ionesco’s “Exit the King,” a play about a once-powerful dying leader.

Cubans Fleeing the Country

The second sign of Cuban leaders’ distress is the increasing number of Cubans leaving the island.

As discussed in other posts, many Cubans have been leaving Cuba and seeking to get through the U.S. through Central America. Inspired in part by a fear that the U.S. would be eliminating its special immigration benefits for Cubans, their departures also show fear that their dire economic situation in Cuba would not significantly improve in the near future.[3]

The arrival of Cubans by land with “dry feet” in the U.S. is documented in a report by the U.S. Customs and Border Protection. Since October 2014 it has processed nearly 75,000 Cubans who arrived at ports of entry, many of them in Laredo, Texas.

The phenomenon of Cubans leaving the island is seen too by Cubans trying to make the dangerous sea crossing to Florida. U.S. Homeland Security Department documents show the highest number of such attempted crossings in the past eight years.[4]

During the 2015 fiscal year ending September 30, 2015, more than 4,400 Cubans set out for the U.S. by sea, a 20 percent increase over the previous fiscal year, according to Coast Guard figures. Of these the U.S. Coast Guard interdicted 2,927, which was up 42.2% over fiscal 2014 and 115.7% over fiscal 2013. Between October 2015 and this March, more than 4,300 people have tried to make the dangerous trip.

The U.S. Coast Guard has had to step up its presence in the Florida Straits to deal with more people on overcrowded, makeshift rafts or barely seaworthy boats. Would-be immigrants caught at sea are returned to Cuba, so the rush has made people more desperate, with some actually wounding themselves with knives or guns in the hopes they will be taken to a hospital in the U.S. instead of sent back. Others try to flee rescuers and refuse life jackets.

Conclusion

These developments show this outside observer from the U.S. that Cuba needs to step up the pace of economic reform and that the U.S. needs to end its embargo as soon as possible.

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[1] Here are blog posts about President Obama’s trip to Cuba and the recent congress of the Communist Party of Cuba: President Obama’s Eloquent Speech to the Cuban People (Mar. 25, 2016)(includes full text of speech); Reactions to President Obama’s Speech to the Cuban People (Mar. 26, 2016); Fidel Castro Challenges President Obama’s Call To Forget the Past (Mar. 28, 2016); Other Reactions to Fidel Castro’s Commentary on President Obama’s Trip (Mar. 31, 2016); Raúl Castro Discusses Cuba-U.S. Relations in Report to Seventh Congress of Communist Party of Cuba (April 18, 2016);Raúl Castro Discusses Scio-Economic Issues in Report to Seventh Congress of Communist Party of Cuba (April 19, 2016); Conclusion of Seventh Congress of Communist Party of Cuba (April 20, 2016.

[2] Assoc. Press, Renowned Pro-Reform Cuban Economist Fired As Chill Sets In, N.Y. Times (April 21, 2016).

[3] Here are a few of the posts regarding Cuban migrants in Central America and by sea: Resolution of Problem of Cuban Migrants Stranded in Costa Rica (Dec. 30, 2015); Cuban Migration Developments (Jan. 21, 2016); Another Cuban Migrant Problem in Central America (April 17, 2016).

[4] Assoc. Press, Cubans Fleeing in High Numbers Despite New Diplomatic Ties, N.Y. Times (April 20, 2016); Neal, 137 Cubans repatriated by Coast Guard, Miami Herald (April 20, 2016); U.S. Coast Guard, Alien Migrant Interdiction (as of Jan. 19, 2016).

New York Times Calls for End to Special U.S. Immigration Programs for Cubans

The New York Times Editorial Board on December 21 called for the U.S. to end its special immigration programs for Cubans. It, therefore, joins the criticism of such policies by the Cuban Government.[1]

With respect to the so-called “Wet Foot, Dry Foot” policy, the editorial notes that the recent exodus of many Cubans through Ecuador and Central America in attempts to reach the U.S. highlights the need for an immediate end to that policy. Even if Congress does not repeal the Cuban Adjustment Act that grants Cubans in the U.S. the right to apply for permanent residency after one year of such presence, the following can and should be done:

Because that Act does not require the U.S. to grant all Cubans who arrive here by land parole status, the U.S. Administration should stop doing so and instead only grant such status to those Cubans who demonstrate a ”credible”” fear of persecution in Cuba., which is a preliminary step for a subsequent application for asylum requiring a “well-founded” fear of such persecution.
Cuba should agree to accept the return of those Cubans denied entry into the U.S. and the roughly 34,000 Cubans n U.S. prisons for conviction of crimes in this country..
The U.S. should “continue to admit a high number of Cuban immigrants who apply for visas [at the U.S. Embassy in] Havana, giving priority to those who have legitimate persecution claims and those who have family members in the [U.S.].
“The Obama administration should negotiate a new agreement with the Cuban government that makes orderly immigration the norm.”

With respect to the U.S. “Cuban Medical Professionals Parole Program,” the editorial calls for its immediate termination and for Cuba to end its new requirement for exit visa for such personnel.[2]

As previous posts demonstrate, I concur in these recommendations.[3]

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[1] Editorial: A New Cuban Exodus, N.Y. Times (Dec. 21, 2015). The most recent of many Cuban demands for ending these U.S. immigration programs was in President Raúl Castro’s December 18^th speech to his country.

[2] The Times recently published an article about the Cuban Medical Personnel Parole Program: Burnett & Robles, U.S. and Cuba at Odds Over Exodus of the Island’s Doctors, N.Y. Times (Dec. 19, 2015).

[3] E.g., Results of U.S.-Cuba Discussions After Ceremonial Opening of U.S. Embassy in Havana (Aug. 18, 2015; New York Times Calls for End of U.S. Program for Special Immigration Relief for Cuban Medical Personnel (Nov. 23, 2014).

U.S. and Cuba Fail To Resolve Complaints About U.S. Immigration Policies

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.

Summary of the Bilateral Talks[1]

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.

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[1] Migration talks between Cuba and the United States, Granma (Nov. 30, 2015); Press Release issued by the Cuban Delegation to the Round of Migration Talks between Cuba and the United States. Washington, November 30, 2015; U.S. State Dep’t, Daily Press Briefing (Nov. 30, 2015); Whitefield, Despite talks, U.S.-Cuba migration impasse continues, Miami Herald (Nov. 30, 2015).

[2] 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).

[3] Assoc. Press, Cuba Imposes Travel Permit for Doctors to Limit Brain Drain, N.Y. Times (Dec. 1, 2015); Declaration of the Revolutionary Government, Granma (Nov. 30, 2015). The Cuban Government’s Declaration also reiterated its complaints about the U.S. Cuban Adjustment Act and the dry feet/wet feet policy.

[4] E.g., Results of U.S.-Cuba Discussions After Ceremonial Opening of U.S. Embassy in Havana (Aug. 18, 2015).

[5] E.g., New York Times Calls for End of U.S. Program for Special Immigration Relief for Cuban Medical Personnel ( Nov. 23, 2014).

Update on Cuban Migrants in Central America

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 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.

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[1] Assoc. Press, Social Media Helps Drive Historic Cuban Exodus to US, N.Y. Times (Nov. 23, 2015).

[2] Sica meeting will address situation of Cuban migrants in Central America, Granma (Nov. 20, 2015); Cuban Foreign Minister held working visit to Ecuador and Nicaragua, Granma (Nov. 22, 2015); Begins Tuesday SICA meeting on migration in Central America, Granma (Nov. 23, 2015); Moran, Cuban migration could generate humanitarian crisis, ContraPunto (Nov. 23, 2015); Assoc. Press, Central American Officials Meet on Cuban Migrant Problem, N.Y> Times (Nov. 24, 2015); Foreign Ministers Discuss in El Salvador on Cuban Migrants Situation, Prensa Latina (Nov. 24, 2015); SICA meeting solution Cuban migrants issue in Costa Rica, CubaDebate (Nov. 24, 2015); Costa Rica Foreign Ministry, Nicaragua PREVENTS regional and humanitarian solution for protection of Cuban Migrants (Nov. 24, 2015); Moran, Nicaragua blocks outlet for Cuban immigrants, ContraPunto (Nov. 24, 2015); SICA Meeting in El Salvador: Regional gathering discusses situation of Cuban migrants in Costa Rica, Granma (Nov. 25, 2015); Gomez, Central America, a broker of broken dreams, Granma (Nov. 26, 2015).

[3] Ecuador Foreign Ministry, Ecuador requests tourist visas to Cubans starting December 1 (Nov. 26, 2015); From December 1 Ecuador requires visas for Cubans, El Commercio (Nov. 26, 2015); Ecuador asked the Cuban visa from December 1 (+ Note of the Foreign Ministry), CubaDebate (Nov. 26, 2015); Ecuador announces visa requirement for Cubans, Granma (Nov. 26, 2015); Assoc. Press, Ecuador to Require Cubans to Get Entry Visas, N.Y. times (Nov. 26, 2015); Cubans need visas to enter Ecuador again, LaHora (Nov. 27, 2015); Soraya, Ecuador puts a stop to the arrival of Cubans, El Pais (Nov. 27, 2015).

[4] Reuters, Cubans Protest New Ecuador Visa Regulation, N.Y. Times (Nov. 27, 2015); Assoc. Press, Hundreds Gather in Havana in Frustration at Ecuador Visa Rule, N.Y. Times (Nov. 27, 2015).

[5] E.g., Results of U.S.-Cuba Discussions After Ceremonial Opening of U.S. Embassy in Havana (Aug. 18, 2015).

[6] E.g., New York Times Calls for End of U.S. Program for Special Immigration Relief for Cuban Medical Personnel ( Nov. 23, 2014)

[7] Cuban Foreign Ministry, Cuba and the United States will hold a new round of migration talks, Granma (Nov. 26, 2015); U.S. State Dep’t, United States and Cuba Hold Migration Talks, Counter-Narcotics Dialogue (Nov. 25, 2015)

Naturalized U.S. Citizens: Important Contributors to U.S. Culture and Economy

U.S. citizens are those individuals who were born in the U.S. as well as those born elsewhere to a parent who is a U.S. citizen. In addition, there are those who choose to become naturalized U.S. citizens by filing an Application for Naturalization, Form N-400, with the U.S. Citizenship and Immigration Services, which is part of the U.S. Department of Homeland Security, and meeting the following requirements of U.S. law:

Be at least 18 years of age;
Be a lawful permanent resident (green card holder);
Have resided in the United States as a lawful permanent resident for at least five years;
Have been physically present in the United States for at least 30 months;
Be a person of good moral character;
Be able to speak, read, write and understand the English language;
Have knowledge of U.S. government and history; and
Be willing and able to take the Oath of Allegiance. [1]

The average annual number of individuals who became U.S. citizens increased from less than 120,000 during the 1950s and 1960s to 210,000 during the 1980s, and 500,000 during the 1990s. In the 21^st century the annual average has increased to nearly 690,000 as shown by the following statistics:

Fiscal Year	Total New Naturalized U.S. Citizens	Fiscal Year	Total New Naturalized U.S. Citizens
2000	888,788	2008	1,050,399[2]
2001	613,161	2009	741,982
2002	589,727	2010	619,075
2003	456,063	2011	690,705
2004	536,176	2012	762,742
2005	600,366	2013	777,416
2006	702,663	2014	654,949
2007	659,233	TOTAL	10,343.445

Until the 1970s, the majority of persons naturalizing were born in European countries. In the 1970s the regional origin of new citizens shifted from Europe to Asia due to increased legal immigration from Asian countries, the arrival of Indochinese refugees, and the historically higher naturalization rate of Asian immigrants. This summary from the U.S. Government, however, fails to aggregate the people from South America, Central America, Mexico and the Caribbean into a Latin American group. For the latest available fiscal year (2013), the new citizens came from the following regions of the world:

Region of origin	Number	Percentage
Latin America	339,229	43.5%
Asia	275,700	35.3%
Europe	80,333	10.3%
Africa	71,872	9.2%
Other	12,795	1.6%
TOTAL	779,929	100.0%

In FY 2013, the top countries of origin for naturalization were in the following order: Mexico, India, the Philippines, Dominican Republic, China and Cuba.

In FY 2013, 75 percent of all individuals naturalizing resided in 10 states (in descending order): California, New York, Florida, Texas, New Jersey, Illinois, Virginia, Massachusetts, Georgia and Pennsylvania. That same fiscal year the leading metropolitan areas of residence were New York-Northern New Jersey-Long Island, NY-NJ-PA (17.5 percent); Los Angeles-Long Beach-Santa Ana, CA (9 percent); and Miami-Fort Lauderdale-Pompano Beach, FL (8.6 percent).

Conclusion

These new citizens provide an infusion of new perspectives on culture and on the U.S. itself. We are blessed to have them join us. Many other industrialized countries like Japan do not have this openness to newcomers and, therefore, struggle with aging and declining populations and resulting diminished influence in the world.

Although the public information for becoming a naturalized citizen on the website of the U.S. Citizenship and Immigration Services, which is the basis for this post, is very useful, anyone thinking of doing so should consider consulting with an U.S. attorney with experience in this area of the law.

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[2] There also are other provisions for naturalization for members of the U.S. military and for children under the age of 18.

[2] The unusually large number of new naturalized citizens in FY 2008 was due primarily to applications received in advance of a fee increase in calendar 2008 and to a special effort to encourage eligible individuals to submit applications for citizenship.