Costa Rica – dwkcommentaries

Cuba’s Universal Periodic Review Hearing by the U.N. Human Rights Council

On May 16, the U.N. Human Rights Council in Geneva, Switzerland held a 210-minute public hearing on its third Universal Periodic Review (UPR) of Cuba’s human rights record. The hearing consisted of Cuba’s report by its Foreign Minister, Bruno Rodriguez, and other Cuban officials; comments and recommendations by 140 countries (50 seconds each for a total of approximately 117 minutes); and responses by the Cuban officials.

Before the hearing,, the Council received Cuba’s human rights report, a summary of U.N. information about Cuba, reports from stakeholders (human rights organizations and others); and advance questions from some U.N. Members. The 224 submissions from stakeholders, for example, included around 17 that said Cuba’s constitutional and legislative framework “guaranteed the enjoyment of all human rights and fundamental freedoms.” The Cuban Human Rights Observatory, and others, on the other hand, said that Cuba had not undertaken any reforms to promote the exercise of political freedoms.[1]

Cuban Government’s Report[2]

“From the times of the US military occupation, which severed our independence, under the governments it imposed, 45 per cent of children did not attend schools; 85 per cent of persons lacked running water; farmers lived in abject poverty without ever owning the land they tilled and immigrants were brutally exploited. In Cuba [during those years], workers and farmers had no rights. Extrajudicial execution, enforced disappearances and torture were recurrent. Discrimination based on the color of the skin was brutal; poverty was rampant and women and girls were even more excluded. The dignity of Cubans was tarnished and Cuba’s national culture was trampled upon.” (Emphasis added.)

“The Cuban Revolution led by Commander in Chief Fidel Castro Ruiz transformed that reality and continues to strive to improve the quality of life, wellbeing and social justice for all of our people, thus implementing all human rights. That willingness to protect human dignity, provide equal opportunities and ‘conquer all the justice,’ has remained unchanged and unswerving until today.”

“Our country has continued to take steps to further improve its economic and social development model with the purpose of building a sovereign, independent, socialist, democratic, prosperous and sustainable nation by strengthening the institutional structure of our political system, which is genuinely participatory and enjoys full popular support.”

In accordance with the Constitution, we have continued to strengthen the legal and institutional framework for the protection and promotion of those rights, and we have introduced modifications and proposals adapted to the needs and realities of the Cuban society and international standards. The attention to citizens has been equally improved by means of the expansion of the mechanisms, ways and recourses in the hands of the population to denounce any infringement of the legal system or their rights; file claims or petitions to the competent authorities; channel up their opinions and concerns and actively participate in the adoption of government decisions.”

The Foreign Minister then provided more details about Cuba’s “protection of the right to life. . .; law enforcement authorities . . . [being] subject to rigorous control processes and popular scrutiny.; . . .There has been no impunity in the very few cases of abuses involving law enforcement agents and officials;” no traffic in firearms; continued strengthening of “people’s participation in government decision-making and the exercise of the freedoms recognized under the Constitution and the law;” increased “effectiveness of the control exercised by all citizens over the activity of state organs, elected representatives and public officials;” advancing “the promotion of the right to full equality; in the struggle against elements of discrimination based on the color of the skin and against women;” and increasing “support to prevent and cope with manifestations of discrimination based on sexual orientation and gender identity.” He also mentioned increases in numbers of civil society organizations, and said defenders of human rights enjoy government recognition and support.

However, in Cuba, “the legal system cannot be infringed upon or subverted to satisfy a foreign agenda that calls for a change of regime, the constitutional order and the political system that Cubans have freely chosen. Those who act this way are not worthy of being described as human rights defenders; they rather qualify as agents to the service of a foreign power, according to many western legislations. (Emphasis added.)

Cuba has continued to strengthen its cooperation with the UN mechanisms that take care of these issues. . . We have strictly complied with all . . . 44 of the 61 international human rights instruments [into which we have entered.]”

“Cuba has continued to promote initiatives at the [U.N.] Human Rights Council and the Third Committee of the UN General Assembly, for the defense of human rights, including the rights to development and peace. We have consistently opposed every attempt to politically manipulate said bodies; selectivity as well as double standards.”

Likewise, “huge efforts are being made, amid adverse financial conditions, to preserve the purchasing power of salaries and pensions, improve access to food, adequate housing and public transportation, while preserving and even enhancing the quality of universal and free education and public health. No one will ever be left to his or her own fate in Cuba.”

“We cannot but mention our condition as a small island developing country, faced with an unfavorable international economic situation, characterized by the prevalence of irrational and unsustainable patterns of production and consumption; market regulations and non-transparent and less than democratic international financial institutions. Added to this are the adverse effects of climate change and the impact of natural disasters of high intensity on our economy. Substantial resources should be invested to cope with them. (Emphasis added.)

“The strengthening of the economic, commercial and financial blockade imposed by the United States against Cuba and its extraterritorial implementation causes deprivations and continue to be the main obstacle to the economic and social development of the country. This unjust policy, which has been rejected by the international community, violates the purposes and principles of the UN Charter and International Law and represents a flagrant, massive and systematic violation of the human rights of our people, thus qualifying as an act of genocide under the Convention for the Prevention and Punishment of the Crime of Genocide of 1948.” (Emphasis added.)

“We demand the return of the territory usurped by the US Naval Base in Guantánamo, where the United States maintains a detention camp in which serious human rights violations and acts of torture are committed.”(Emphasis added.)

“The political and media campaigns against Cuba, which distort our reality, intend to discredit our country and conceal Cuba’s undeniable human rights achievements.“ Emphasis added.)

We are opened to dialogue and will offer all the necessary information based on the respect and objectivity that should characterize this exercise, in which there should be no double standards or politically motivated manipulations, which we will not accept, because, as was expressed by the President of the Council of State and Ministers, Comrade Miguel Díaz-Canel Bermúdez on April 19, “there is no room for a transition that ignores or destroys the legacy of so many years of struggle. In Cuba, by the decision of the people, there is only room for the continuity of that legacy with the Revolution and the founding generation, without giving up to pressures, without fear and setbacks, always defending our truths and reasons, without ever renouncing sovereignty and independence, development programs and our own dreams.” (Emphasis added.)

Other Countries Comments and Recommendations[3]

During the hearing a total of 339 recommendations, many of which are repetitious, were made. Many countries, especially those friendly with Cuba like Russia and China and developing countries, made no recommendations at all. Others were more critical: members of the European Union (EU), United States, Japan, Canada, but also Mexico, Peru, Costa Rica, Brazil, Chile and Uruguay. Gabriel Salvia, the General Director of the Center for the Opening and Development of Latin America, said, “It is a great step forward for more Latin American countries to point out the human rights situation in Cuba,”

Near the end of this section of the hearing, the U.S.’ 50-seconds were the sharpest against Cuba.[4] Michele Roulbet, the U.S. delegate, said:

“The April presidential transition again robbed the Cuban people of any real choice in shaping their country’s future; the same actors are in charge, many just with different titles, selected in a process that was neither free nor fair. The government stacked the system against independent candidates, none of whom were able to run for seats in the National Assembly, which selected the president.”
“The Cuban government continues to criminalize independent civil society and severely restricts the freedoms of expression, association, religion or belief and the right of peaceful assembly. It routinely applies laws to silence journalists and critics, and punishes those working to expand access to information and freedom of expression for those in Cuba.”
In an “attempt to silence opposition voices, the government reportedly continues to use arbitrary and politically motivated detentions, torture, harassment, and travel prohibitions. Recent examples of this include those who attempted to monitor the undemocratic presidential transition; those who have advocated for political change; and those who were prevented from participating in the 2018 Summit of the Americas in Lima and this UPR process.”

The U.S. then made the following three recommendations to Cuba: (1) “Reform its one-party system to allow for genuinely free and fair multi-party elections that provide citizens with real choices [regarding their government. “(2) “Cease the practice of arbitrarily detaining journalists, opposition members, and human rights defenders, including preemptively, and adopt a legal framework that ensures judicial independence.” (3) “Release arbitrarily detained or imprisoned individuals who were detained and imprisoned for peaceful assembly, investigate and report on government activity, or express political dissent, and allow them to travel freely both domestically and internationally.”

About midway through this section, Cuba responded to some of the criticisms. It denied the existence of political prisoners in Cuba, restrictions on the right to strike, or even the obstacles to travel freely, while insisting on the independence of the justice system. Cuban. Foreign Minister Bruno Rodríguez described the alleged dissidents and human rights activists as “agents of a foreign power,” a regular practice of the regime to attempt to discredit opponents.

Cuba’s Closing Comments[5]

Foreign Minister Rodriguez in his final statement at the hearing said, “It is regrettable that certain countries are continuing to manipulate the human rights question for political ends, to justify the embargo on Cuba and ‘regime change.’ hey have no moral authority and on the contrary are the perpetrators of extensive, well documented and unpunished violations of human rights; they ride roughshod over the aims of the Universal Periodic Examination and persist in selectivity, double standards and the politicization of human rights.” (Emphasis added.)

“These practices, which in recent years have started to reemerge, discredited the [former U.N.] Commission on Human Rights and prompted its replacement by this Council. We will be on a retrograde path if we allow such deviant practices to be consolidated in the Council’s work. Respectful dialogue reflecting the principles of objectivity, impartiality and non-selectivity; and the respect for each people’s self-determination, its right to decide its own political, economic, social and cultural system, and its development model, are the cornerstone of international cooperation in this area.” (emphasis added.)

“A small number of the recommendations have an interventionist character, contrary to the spirit of cooperation and respect on which this exercise is based. One of the recommendations is strange: it is the United States which is prohibiting its citizens from travelling to Cuba and restricts their freedom to travel; it is Washington which is denying Cubans, Cuban families, consular services and visa issue at its embassy in Havana.” [These recommendations will be rejected.] (Emphasis added.)

We are keeping to our “socialist and democratic revolution, with the humble and for the humble” proclaimed by Commander-In-Chief Fidel Castro and inspired by José Martí’s brotherly formula: “With everyone and for the benefit of everyone”.

U.S.-Cuba Subsequent Conflict Over Cuba’s UPR[6]

Immediately after the Geneva hearing, from the U.S. Mission to the U.N. in New York City, U.S. Ambassador to the U.N., Nikki Haley, issued a statement. It said that the UPR process expects countries “to allow independent civil society organizations to fully and freely participate in their UPR process. However, the Cuban government blocked independent Cuban civil society members from traveling to Geneva to participate in their review process, just as they did last month when they blocked Cuban civil society members from traveling to Peru to participate in the Summit of the Americas.” (Emphasis added.)

Ambassador Haley added, “A country with a human rights record as abysmal as Cuba’s is no stranger to silencing its critics. But the Cuban government can’t silence the United States. We will continue to stand up for the Cuban people and get loud when the Cuban government deprives its people of their human rights and fundamental freedoms and robs them of free, fair, and competitive elections, denying them the opportunity to shape their country’s future.” (Emphasis added.)

Meanwhile the live webcast of the hearing was watched in Miami by some Cuban-Americans, who were gathered at the headquarters of the Cuban Democratic Directorate, whose website says, “Since its inception in 1990, the Cuban Democratic Directorate has been characterized by a consistent and cohesive strategy for liberty and democracy in Cuba.” The Miami-based Foundation for Human Rights in Cuba, which was established in 1992 “to promote a nonviolent transition to a free and democratic Cuba with zero tolerance for human rights violations,” complained that Cuba had flooded the Office of the U.N. High Commissioner for Human Rights with letters sent by Communist Party organizations, the Cuban Women’s Federation and other organizations affiliated with the government that contained “absurd praise about the Cuban system.”

Remaining Steps in Cuba’s UPR[7]

Following the UPR hearing, Cuba this September will submit a formal response to the recommendations, and the Working Group then will prepare a draft of the Outcomes Report. This report will provide a summary of the actual discussion, including the questions, comments and recommendations made by States to Cuba, as well as the responses by the Cuban Government.

Such outcome reports are not all that illuminating. For example, the one for Cuba’s prior review in 2013, which probably will be a lot like the one forthcoming for this latest review,[8] contains a summary of the hearing–presentation by Cuba (para. 5-26), interactive dialogue and responses by Cuba (paras. 27-169)—and a mere sequential listing of the repetitive recommendations made by the states at the hearing (paras. 170.1-170.291) although there also is an integrated more useful 45-page “thematic matrix of the recommendations.”

Another document from 2013 set forth Cuba’s views on these conclusions and recommendations and its voluntary commitments. It listed many recommendations that “enjoy the support of the Government of Cuba;” others that have been noted by the Government; and the following 20 that did “not enjoy the support of the Government:”

*No.*	*Country*	*Recommendation*
170.136	Belgium	Adopt legislation to improve immigration & relations with Cuban diaspora
170.139	Belgium, Czech Repub., Slovenia	Implement legal safeguards to protect human rights defenders, journalists, against abuse of provisions for criminal prosecution & release all political prisoners
179.162	Belgium	Amend the Law of Criminal Procedure in order to avoid the cases of indefinite extension of the preliminary investigation
170.171	Romania, Estonia & Hungary	Remove restrictions on freedom of expression notably concerning the connection to the Internet; Reconsider all laws that criminalize or restrict the right to freedom of expression & right of internet freedom; Lift restrictions on rights to freedom of expression that are not in accordance with the Universal Declaration of Human Rights; ensure affordable & unhindered access to the internet for all.
179.172	Spain	Allow freedoms of expression, association &assembly; allow human rights associations to obtain legal status through inclusive and official registration
170.173	Switzerland	Lift restrictions hindering free expression & ensure that human rights defenders & independent journalists are not victims of intimidations or arbitrary prosecutions & detentions
170.174	U.K. & Northern Ireland	End measures to restrict freedom of expression & assembly including short-term detentions and use of criminal charges such as “precriminal social dangerousness”, “contempt” and “resistance”
170.175	Ireland	Repeal legislation relating to so-called “pre-criminal social dangerousness”
170.176	U.S.A.	Eliminate or cease enforcing laws impeding freedom of expression
170.177	France	Guarantee freedom of expression & peaceful assembly plus free activity of human rights defenders, independent journalists & political opponents
170.179	Canada	Take further measures to improve freedom of expression by allowing for independent media & improving access to information through public access to internet by taking advantage of the recent investment in the fiber optic network
170.182	Austria	Guarantee free, free & independent environment for journalists and ensure that all cases of attacks against them are investigated by independent & impartial bodies
170.183	Netherlands	End repression, investigate acts of repudiation & protect all persons who are targets of intimidation or violence
170.184	Poland	Liberate immediately & unconditionally all prisoners held in temporary detention or sentenced in connection with exercising their freedom of opinion & expression as well as freedom of assembly & association
170.187	U.S.A.	Release Alan Gross and imprisoned journalists such as Jose Antonio Torres immediately. [Gross was released on 12/17/14]
170.188	Australia	Stop limitations on civil society activities, including short-term detention of political activists
170,189	Germany	Stop harassment, intimidation & arbitrary detention of human rights activities
179.190	Hungary	Stop short-term detentions, harassments & other repressive measures against human rights defenders & journalists. Implement legal safeguards to ensure their protection against abuse of provisions for criminal prosecution
170.192	Australia	Reduce government influence & control over internet as part of a broader commitment to freedom of expression
170.193	Germany	End online censorship

The report finally has to be adopted at a plenary session of the Human Rights Council. During the plenary session, the State under review can reply to questions and issues that were not sufficiently addressed during the Working Group and respond to recommendations that were raised by States during the review. Time is also allotted to member and observer States who may wish to express their opinion on the outcome of the review and for stakeholders to make general comments.

Conclusion

After the final adoption of the Outcomes Report, the Council has no authority or power to compel Cuba to do anything. Instead, Cuba “has the primary responsibility to implement the recommendations contained in the final outcome.”

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[1] See these posts to dwkcommentaries.com: Cuba’s Human Rights Record Being Subjected to Universal Periodic Review by U.N. Human Rights Council (April 30, 2018); Advance Questions for Cuba’s Universal Periodic Review by the U.N. Human Rights Council (May 11, 2018).

[2] Cuba Foreign Ministry, Cuba will continue to build an ever freer, more democratic, just and fraternal society (May 16, 2018).

[3] ‘It is a great step forward for more Latin American countries to point out the human rights situation in Cuba,’ Diario de Cuba (May 16, 2018); Cuba Foreign Ministry, Cuba reiterates its commitment to cooperate with the UN human rights system (May 16, 2018); Havana warns that it will reject the recommendations of the UN with criticism of its ‘constitutional order,’ Diario de Cuba (May 18, 2018).

[4] U.S. Mission to U.N. (Geneva), U.S. Statement at the Universal Periodic Review of Cuba (May 16, 2018).

[5] Cuba Foreign Ministry, Cuba reiterates its commitment to cooperate with the UN human rights system (May 18, 2018); Havana warns that it will reject the recommendations of the UN with criticism of its ‘constitutional order,’ Diario de Cuba (May 18, 2018).

[6] U.S. Mission to U.N., Press Release: Ambassador Haley on Cuba’s Human Rights Record (May 16, 2018).

[7] U.N. Hum. Rts. Council, Basic facts about the UPR.

[8] U.N. Hum. Rts. Council, Report of the Working Group on the Universal Periodic Review: Cuba (July 8, 2013); U.N. Hum. Rts. Council, Report of the Working Group on the Universal Periodic Review: Cuba: Addendum: Views on conclusions and recommendations, voluntary commitments and replies presented by the State under review (Sept. 2013); U.N. Human Rts. Council, Matrix of recommendations.

U.S. Ends Special Immigration Benefits for Cubans

On January 12, the U.S. announced that it is ending, effectively immediately, the “dry foot” immigration policy for Cubans and the Cuban Medical Professional Parole Policy. Below we will examine these cancelled policies, the U.S. announcement of the policy changes, Cuba’s announcement of the U.S. policy changes and reactions to the changes.

The Cancelled U.S. Policies[1]

The “dry feet” policy has allowed any Cuban who arrived on land (with “dry feet”) at a U.S. point of entry to come into the U.S. and, absent negative factors, qualify for U.S. permanent residency status after one year. This policy originated soon after the early years of the Cuban Revolution before the U.S. in 1967 had ratified the international treaty on refugees and before it had adopted in 1980 a statute implementing that treaty (the Refugee Act of 1980) and when the U.S. assumed that all Cubans arriving in the U.S. were fleeing persecution.

This policy originally included Cubans who were intercepted on the water by the U.S. Coast Guard. However, in response to the Cuban Government’s legitimate concerns about the personal safety of Cubans attempting to reach the U.S. on unsafe boats, the U.S. (Bill Clinton Administration) and Cuba on September 9, 1994, reached an agreement whereby the U.S. would return to Cuba its nationals who were intercepted at sea, i.e., who had “wet feet.”

The U.S. Cuban Medical Professional Parole Policy, which was adopted on August 11, 2006, allowed “Cuban medical personnel conscripted to study or work in a third country under the direction of the Cuban government to enter the U.S.” It was available to “health-care providers who are sent by the [Cuban government] to work or study in third countries and who . . . are often denied exit permission by the Cuban Government to come to the [U.S.] when they qualify under other established legal channels to migrate from Cuba. Doctors, nurses, paramedics, physical therapists, lab technicians and sports trainers are examples of groups that may qualify for the . . . program.”

U.S. Announcement of the Change[2]

On January 12 President Obama announced that the U.S. “is ending the so-called “wet-foot/dry foot” policy, which was put in place more than twenty years ago and was designed for a different era. Effective immediately, Cuban nationals who attempt to enter the [U.S.] illegally and do not qualify for humanitarian relief will be subject to removal, consistent with U.S. law and enforcement priorities. By taking this step, we are treating Cuban migrants the same way we treat migrants from other countries. The Cuban government has agreed to accept the return of Cuban nationals who have been ordered removed, just as it has been accepting the return of migrants interdicted at sea.”

The President also said the U.S. is “ending the Cuban Medical Professional Parole Program. The [U.S.] and Cuba are working together to combat diseases that endanger the health and lives of our people. By providing preferential treatment to Cuban medical personnel, the medical parole program contradicts those efforts, and risks harming the Cuban people. Cuban medical personnel will now be eligible to apply for asylum at U.S. embassies and consulates around the world, consistent with the procedures for all foreign nationals.”[3]

This termination follows months of negotiations with the Cuban government over the latter’s agreeing to accept returning Cubans.

Nearly simultaneously with the President, Jeh Johnson, the Secretary of the U.S. Department of Homeland Security (DHS), which includes the U.S. Immigration and Customs Enforcement (ICE), issued a statement: “To the extent permitted by the current laws of our two countries, the [U.S.] will now treat Cuban migrants in a manner consistent with how it treats others; unauthorized migrants can expect to be removed unless they qualify for humanitarian relief under our laws.” The Department also released a Fact Sheet and the Joint Statement of the two governments about the change. Johnson pointed out that Cuba will take back citizens as long as less than four years have passed between the time the migrant left Cuba and the start of the U.S. deportation proceedings.

These changes do not affect U.S. law regarding “refugees” fleeing persecution in their home countries. Thus, if a Cuban fears “persecution” upon returning to the island, then the individual may apply for asylum in the U.S. as a “refugee” under international and U.S. law if the individual can establish that he or she has a “well-founded fear” of “persecution” in Cuba “due to” his or her “political opinion, race, religion, nationality or membership in a particular social group.” (Statutory words are in quotes.) They may do so in the U.S. or at an U.S. embassy or consulate in another country.[4]

Cuban Announcement of the Change[5]

Welcoming this change, the Cuban Government stated, “After nearly a year of negotiation and encouraged by the restoration of diplomatic relations on July 20, 2015, based on mutual respect and political will to strengthen these links and establish new understandings on various issues of common interest, [the two] governments were able to concretize this commitment that should contribute to the normalization of migration relations. . . .”

The U.S. “wet foot-dry foot” policy gave Cubans “preferential and unique treatment not received by citizens of other countries, so it was also an incitement to illegal departures. Its implementation and that of other policies led to migratory crises, kidnapping of ships and aircraft and the commission of crimes, such as trafficking in migrants, trafficking in persons, immigration fraud and the use of violence with a destabilizing extraterritorial impact on other countries of the region [that were] used [for] transit to arrive at American territory.”

This change will meant that the U.S., “consistent with its laws and international norms, shall return to the Republic of Cuba, and the Republic of Cuba, consistent with its Laws and international norms, will receive all Cuban citizens, who . . . are detected by the competent authorities of the [U.S.] when they tried to enter or stay irregularly in that country, violating its laws.”

The U.S. “Parole Program for Cuban Medical Professionals, which was part of the arsenal to deprive the country of doctors, nurses and other professionals of the sector, . . . and an attack against Cuba’s humanitarian and solidarity medical missions in Third World countries that need it so much. This policy prompted Cuban health personnel working in third countries to abandon their missions and emigrate to the [U.S.], becoming a reprehensible practice that damaged Cuba’s international medical cooperation programs.”

It “will also be necessary for the U.S. Congress to repeal the Cuban Adjustment Act of 1966.”

Unaffected are prior agreements “to prevent illegal departures by sea and to return to Cuba all persons who are intercepted in those acts or who enter the Guantánamo Naval Base. The Government of the United States will continue to guarantee regular migration from Cuba with a minimum of 20,000 people per year.”

“Both governments agreed to apply their migration laws in a non-selective manner and in accordance with their international obligations. They also undertook to prevent risky exits that endanger human life, to prevent irregular migration and to combat violence associated with such manifestations, such as trafficking and trafficking in persons.” In addition, “the parties will promote effective bilateral cooperation to prevent and prosecute those involved in trafficking in persons, as well as crimes associated with migratory movements, which endanger their national security, including the hijacking of aircraft and vessels.”

“In keeping with its international obligations and its legislation, the Government of the Republic of Cuba ratifies its commitment to guarantee regular, safe and orderly migration, as well as to fully comply with this new agreement for which the corresponding measures have been taken internally. It will continue to guarantee the right to travel and emigrate to Cuban citizens and to return to the country, in accordance with the requirements of immigration law.”

The Cuban Government also published the Joint Statement of the two governments as had DHS in the U.S.

At a press conference on January 12 Josefina Vidal, the Cuban Foreign Ministry official responsible for relations with the U.S., said that the joint “agreement recognizes the need to facilitate regular migration for the benefit of both countries, to prevent irregular migration and to prevent risky exits that endanger human life and to combat violence associated with this phenomenon and related offenses, such as trafficking in persons and trafficking in persons.”

Vidal was joined by Gustavo Machin, the Deputy Director of the United States Department of the Cuban Foreign Ministry, who summarized the joint agreement. He added that “Cuba will accept that persons who were included in the list of 2,746 Cuban citizens who migrated by the port of Mariel in 1980 [“the Mariel boat lift”] and were considered ineligible to remain in the [U.S.], . . and [those] who cannot now be returned will be replaced by other persons and returned to Cuba. Cuba will also consider receiving other Cuban citizens who are currently in the [U.S.], who violated [U.S.] laws and whom U.S. authorities have determined cannot remain in its territory.”

Reactions to the Change[6]

As to be expected, U.S. congressional response was mixed.

Senator Patrick Leahy (Dem, VT) said, “This is a welcome step in reforming an illogical and discriminatory policy that contrasted starkly with the treatment of deserving refugees from other countries.” Senator Jeff Flake (Rep., AZ) stated that eliminating the policy “is in our national interest. It is a win for taxpayers, border security, and our allies in the Western Hemisphere. It’s a move that brings our Cuba policy into the modern era while allowing the United States to continue its generous approach to those individuals and refugees with a legitimate claim for asylum.”

Representative Kathy Castor (Dem., FL) and co-author of a bill to end the embargo (H.R.-442), https://dwkcommentaries.com/2017/01/12/representatives-emmer-and-castor-introduce-bill-to-end-embargo-of-cuba/ said, ““The end of the “wet foot/dry foot” policy should be followed by congressional action to lift the outdated economic embargo and improve economic conditions for everyday Cubans. . . . I have witnessed how the ‘wet foot, dry foot’ policy created an uneven playing field for immigrants from other Caribbean nations who are also seeking the opportunity to pursue the American dream. I have also seen Cubans who try to come here for short term visits to see family members negatively affected by ‘wet foot/dry foot.’ The change in policy today will help ensure that we can have safer and more orderly migration with all of our Caribbean neighbors.”

Senator Marco Rubio (Rep., FL) said that the incoming Trump administration should reverse the part of the executive order ending the medical parole system and that there should be assurances that Cubans “who arrive here to escape political persecution are not summarily returned to the regime [but] . . . are given a fair opportunity to apply for and receive political asylum.”

Representative Illeana Ros-Lehtinen, a Florida Republican who emigrated from Cuba as a child, decried the elimination of the medical parole programs, calling it a “foolhardy concession to a regime that sends its doctors to foreign nations in a modern-day indentured servitude.”

According the Senator Robert Menendez (Dem., NJ), “Today’s announcement will only serve to tighten the noose the Castro regime continues to have around the neck of its own people.” He added, “The Obama administration seeks to pursue engagement with the Castro regime at the cost of ignoring the present state of torture and oppression, and its systematic curtailment of freedom.”

A positive view of the change was taken by Peter Kornbluh, a co-author of “Back Channel to Cuba,” which recounts the secret negotiations between the United States and Cuban governments that forged the policy of engagement. He said, “The exceptionalism of the ‘wet foot, dry foot’ policy toward Cuba is a relic of the Cold War, and this decision by the administration is really its final effort to normalize an area of interaction between Cuba and the United States, migration, that is clearly in need of normalization.”

James Williams, the President of Engage Cuba, the leading coalition of private companies and organizations working to end the travel and trade embargo on Cuba, said these changes are “a logical, responsible, and important step towards further normalizing relations with Cuba. The ‘wet foot, dry foot’ policy has been an enduring problem that decades of hostility and isolation failed to solve. This change, which has long had strong bipartisan support, would not have been possible without the re-establishment of diplomatic relations with Cuba.”

Phil Peters, president of the Cuba Research Center, said that the number of Cubans entering the United States is actually much higher because tens of thousands more overstay their visitor visas and still others migrate legally. “This is a favor to Trump because it’s a tough measure to take, but it’s the right measure to take,” Mr. Peters said. “These are economic migrants coming here that, unlike any other nationality, get a big package of government benefits without any justification.”

Kevin Appleby of the Center for Migration Studies of New York praised the specific change, while questioning the broader rules covering asylum. “The good news is that it ensures equal treatment between Cubans and asylum-seekers from other nations,” he said. “The bad news is that our asylum system is broken and does not afford adequate due process and protection to those who need it.”

Support for this change of policy also was voiced by Pedro Freyre, the chair of the international practice group of the Washington, D.C. office of law firm Akerman LLP. He observed, “This partially closes Cuba’s escape valve and will put pressure on Cubans to move forward more rapidly with reforms.” For years, he said, the last resort for Cubans frustrated with the lack of opportunity on the island has been to hire a “lanchero,” or people smuggler and attempt to reach the U.S. “Now they will have to look inward to see what they can do to fix Cuba.” The same opinion was offered by Jorge Mas, president of the Cuban American National Foundation, who welcomed the change and said it would pressure the Cuban government to improve conditions on the island.

Average Cubans and opponents of the island’s communist leaders said they expected pressure for reform to increase with the elimination of a mechanism that siphoned off the island’s most dissatisfied citizens and turned them into sources of remittances supporting relatives who remained on the island. This point was emphasized by Benjamin Rhodes, White House Deputy National Security Advisor and a principal negotiator of the rapprochement, saying, “It’s important that Cuba continue to have a young, dynamic population that are clearly serving as agents of change.”

Last year thousands of Cubans who were seeking to reach the U.S. border with Mexico and to come into the U.S. with “dry feet” created major logistical and financial problems for Mexico, Guatemala, Honduras, El Salvador, Nicaragua, Costa Rica and Panama and to a lesser extent Colombia and Ecuador. This naturally upset the governments of those countries, especially when their citizens were not eligible for these U.S. immigration policies.

Therefore, these governments welcome the U.S. terminating the policies. El Salvador’s foreign ministry said, “There cannot be migrants of different categories.” Honduras said it would wait to see if the flow of Cubans actually declined.

Cubans who had left their homeland and were now trying to reach U.S. soil when the decision was announced lamented the policy change. “It has fallen on us like a bucket of water because were never thought that at this point and with so little time before Obama leaves office that his government would make this horrible decision,” said Eugenia Diaz Hernandez, a 55-year-old Cuban in Panama whose voyage with her daughter and granddaughter had taken her through Guyana, Brazil, Peru, Ecuador and Colombia. “We are adrift.” Another Cuban, Jose Enrique Manreza, who ran a soda warehouse in Havana, is now stranded in Mexico, after selling his house and belongings in Cuba to raise $10,000 for his journey to reach the U.S. “Imagine how I feel, after I spent six days and six nights running through rivers and jungles in the humidity.”

Conclusion

This policy change, in my opinion, was long overdue. I pray and hope that the incoming Trump Administration will not reverse this change.

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[1] U.S. Dep’t of State, Cuban Medical Professional Parole Program (Jan. 26, 2009) See generally posts listed in the “Cuba Migration to U.S.” and “Cuban Medical Personnel & U.S.” sections of List of Posts to dwkcommentaries.com—Topical: Cuba.

[2] White House, Statement by the President on Cuba Policy Changes (Jan. 12, 2017); Dep’t Homeland Security, Statement by Secretary Johnson on the Continued Normalization of Our Migration Relationship with Cuba (Jan. 12, 2017); Dep’t Homeland Security, Fact Sheet: Changes to Parole and Expedited Removal Policies Affecting Cuban Nationals (Jan. 12, 2017); Dep’t Homeland Security, Joint Statement [of U.S. and Cuba regarding changes in U.S. immigration policies] (Jan. 12, 2017); Reuters, Obama Administration Ends Special Immigration Policy for Cubans, N.Y. Times (Jan. 12, 2017); Assoc. Press, Obama Ends Visa-Free Path for Cubans Who Make It to U.S. Soil, N.Y. Times (Jan. 12, 2017); Caldwell & Pace (AP), Obama making change to Cuban immigration policy, Wash. Post (Jan. 12, 2017); DeYoung, Obama ending ‘wet-foot, dry foot’ policy allowing Cubans reaching U.S. soil to stay and receive residency, Wash. Post (Jan. 12, 2017); Davis & Robles, Obama Ends Exemption for Cubans Who Arrive Without Visas, N.Y. Times (Jan. 12, 2017); Lee, Schwartz & Córdoba, U.S. Ends ‘No-Visa’ Era for Cuban Emigrés, W.S. J. (Jan. 12, 2017).

[3] See posts listed in the “Cuban Medical Personnel & U.S.” section of List of Posts to dwkcommentaries.com—Topical: CUBA.

[4] Convention Relating to the Status of Refugees, Art. I (A); 8 U.S.C. §1101(a)(42); See generally the following dwkcommentaries.com blog posts: Refugee and Asylum Law: Modern Era (July 9, 2011); Refugee and Asylum Law: Office of U.N. High Commissioner for Refugees (July 10, 2011); Becoming a Pro Bono Asylum Lawyer (May 24, 2011);Teaching the International Human Rights Course (July 1, 2011).

[5] Cuba Foreign Ministry, Declaration of Revolutionary Government (Jan. 12, 2017); Cuba Foreign Ministry, Joint Declaration Cuba-United States (Jan. 12, 2017); Cuba ratifies its commitment to regular, safe and orderly migration, Granma (Jan. 12, 2017); Assoc. Press, Havana Hails End to Special US Immigration Policy for Cubans, N.Y. Times (Jan. 13, 2017).

[6] Flake Statement on Elimination of Wet Foot, Dry Foot Policy (Jan. 12, 2017); Menendez Statement on Latest Cuba Policy Changes (Jan. 12, 2017); Rubio Comments on Obama Administration Changes to Cuba Policy (Jan. 12, 2017);Castor, Statement on Ending “Wet Foot/DryFoot” (Jan. 12, 2017); Engage Cuba Statement on Administration ‘Wet Foot, Dry Foot’ Policy Announcement (Jan. 12, 2017);Ben Rhodes: ‘There is bipartisan support’ for Congress to repeal the Adjustment Act, Diario de Cuba (Jan. 13, 2017); Wheaton, Obama’s shift on Cuban immigrants could put Trump in a bind, Politico (Jan. 12, 2017); Reuters, Cubans on Road to U.S. Distraught About Newly Closed Border, N.Y. Times (Jan. 13, 2017).

Another U.N. Condemnation of the U.S. Embargo of Cuba

On October 26, the United Nations General Assembly voted, 191 to 0 (with two abstentions), to adopt a resolution proposed by Cuba to condemn the United States embargo of Cuba. For the first time in the 25-year history of the annual vote on such resolutions, the U.S, rather than opposing the text, cast an abstention, prompting Israel to do likewise.[1]

This post will examine the resolution’s text, its presentation by Cuba, its support by other countries and the arguments for abstention offered by the U.S. and Israel. This post will then conclude with a brief discussion of reaction to the abstention in the U.S. Prior posts discussed the similar General Assembly resolutions against the embargo that were adopted in 2011, 2014 and 2015.

The Actual Resolution

The actual resolution, “Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba” (A/RES/71/5 and A/71/L.3) had two principal operative paragraphs.

It reiterated “its call upon all States to refrain from promulgating and applying laws and measures [like the U.S. embargo against Cuba] . . . in conformity with their obligations under the Charter of the United Nations and international law, which, inter alia, reaffirm the freedom of trade and navigation (¶ 2). It also urged “States that have and continue to apply such laws and measures to take the steps necessary to repeal or invalidate them as soon as possible in accordance with their legal regime (¶ 3).

The resolution’s preamble reaffirmed “the sovereign equality of States, non-intervention and non-interference in their internal affairs and freedom of international trade and navigation, which are also enshrined in many international legal instruments” and recited the previous General Assembly resolutions against the embargo. It then welcomed “the progress in the relations between the Governments of Cuba and the [U.S.] and, in that context, the visit of the President of the [U.S.], Barack Obama, to Cuba in March 2016” while also recognizing “the reiterated will of the President of the [U.S.] to work for the elimination of the economic, commercial and financial embargo against Cuba” and “the steps taken by the [U.S.] Administration towards modifying some aspects of the implementation of the embargo, which, although positive, are still limited in scope.”

Cuba’s Presentation of the Resolution

Speaking last in the debate, Cuba’s Foreign Minister Bruno Rodriguez Parrilla, presented arguments for adopting the resolution. Here are extracts of that speech:

“[T]here has been progress [between Cuba and the U.S. since December 2014] in the dialogue and cooperation on issues of common interest and a dozen agreements were signed [and] reciprocal benefits reported. Now just announced the vote of the US abstention on this draft resolution.”

“The [U.S.] president and other top officials have described [the embargo/blockade] as obsolete, useless to advance American’s interests, meaningless, unworkable, being a burden for [U.S.] citizens, . . . [harming] the Cuban people and [causing]. . . isolation to the [U.S.] and [have] called [for the embargo/blockade] to be lifted.”

“We recognize that executive measures [to reduce the scope of the embargo] adopted by the government of the [U.S.] are positive steps, but [have] very limited effect and scope. However, most of the executive regulations and laws establishing the blockade remain in force and are applied rigorously to this minute by U.S. government agencies.”

“Meanwhile, the U.S. Congress has not approved any of the 20 amendments or legislative initiatives, with bipartisan support, . . . [for] eliminating some restrictions of the blockade or even all of this policy. [Moreover,] there have been more than 50 legislative initiatives that threaten to reinforce key aspects of the blockade, preventing the President [from] approving new executive or implementing measures already adopted.”

“It cannot be underestimated in any way the powerful political and ethical message that [action by this Assembly] . . . sends to the peoples of the world. The truth always [finds] its way. Ends of justice prevail. The abstention vote announced surely is a positive step in the future of improved relations between the[U.S.] and Cuba. I appreciate the words and the efforts of Ambassador Samantha Power.”

“[There] are incalculable human damages caused by the blockade. [There is no] Cuban family or industry in the country that does not suffer its effects on health, education, food, services, prices of goods, wages and pensions.” For example, the “imposition of discriminatory and onerous conditions attached to the deterrent effects of the blockade restrict food purchases and the acquisition in the U.S. market for drugs, reagents, spare parts for medical equipment and instruments and others.”

“The [embargo/] blockade also [adversely] affects the interests of American citizens themselves, who could benefit from various services in Cuba, including health [services].”

“The [embargo/] blockade remains a massive, flagrant and systematic violation of human rights of all Cubans and qualifies as an act of genocide under the Convention on the Prevention and Punishment of the Crime of Genocide of 1948. It is an obstacle to cooperation [in] international humanitarian areas.”

“The blockade is the main obstacle to economic and social development of our people. It constitutes a flagrant violation to international law, the United Nations Charter and the Proclamation of Latin America and the Caribbean as a Zone of Peace. Its extraterritorial application adds further to its violation of international law nature of magnitude.”

“Other causes, in addition to [the blockade/embargo] . . . , determine our economic difficulties: the unjust international economic order; the global crisis; the historical distortions and structural weaknesses caused by underdevelopment; high dependence on energy and food imports; the effects of climate change and natural disasters; and also . . . our own mistakes.”

“Between April 2015 and March 2016, the direct economic damage to Cuba by the blockade amounted to $4.68 billion at current prices, calculated rigorously and prudently and conservatively. The damages accumulated over nearly six decades reach the figure of $753 billion, taking into account depreciation of gold. At current prices, [that is] equivalent to just over $125 billion.”

“On 16 April 2016 President Raul Castro Ruz said, ‘We are willing to develop a respectful dialogue and build a new relationship with the [U.S.], as that has never existed between the two countries, because we are convinced that this alone . . . [will provide] mutual benefits.’ And last September 17, he said ‘I reaffirm the will to sustain relations of civilized coexistence with the [U.S.], but Cuba will not give up one of its principles, or make concessions inherent in its sovereignty and independence.’”

“The government of the [U.S.] first proposed the annexation of Cuba and, failing that, to exercise their domination over it. The triumph of the Cuban Revolution . . . [prompted the U.S. adoption of the embargo whose purpose] was ‘to cause disappointment and discouragement through economic dissatisfaction and hardship … to deny Cuba money and supplies, in order to reduce nominal and real wages, with the aim of causing hunger, desperation and overthrow of government. ‘”

“The [new U.S.] Presidential Policy Directive [states] that the Government of the [U.S.] recognizes ‘the sovereignty and self-determination of Cuba’ and [the right of] the Cuban people to make their own decisions about their future.’” It also states “the U.S. will not seek a ‘change of regime in Cuba.’”[2]

But the Directive also says “’the [U.S.] will support the emerging civil society in Cuba and encourage partners and non-governmental actors to join us in advocating in favor of reforms. While the United States remain committed to supporting democratic activists, [we] also [will] participate with community leaders, bloggers, activists and other leaders on social issues that can contribute to the internal dialogue in Cuba on civic participation.’ The Directive goes on to say: “The [U.S.] will maintain our democracy programs and broadcasting, while we will protect our interests and values, such as Guantanamo Naval Base … The government of the United States has no intention of modifying the existing lease agreement and other related provisions.’”

The Directive also asserts that Cuba “remains indebted to the [U.S.] regarding bilateral debts before the Cuban Revolution.”

The U.S. needs to “recognize that change is a sovereign matter for Cubans alone and that Cuba is a truly independent country. It gained its independence by itself and has known and will know how to defend [its] greatest sacrifices and risks. We are proud of our history and our culture that are the most precious treasure. We never forget the past because it is the way never to return to it. And we decided our path to the future and we know that is long and difficult, but we will not deviate from it by ingenuity, by siren songs, or by mistake. No force in the world can force us to it. We will strive to build a sovereign, independent, socialist, democratic, prosperous and sustainable nation. We will not return to capitalism.”

Other Countries’ Statements of Support[3]

During the debate the following 40 countries expressed their support of the resolution:

Latin America: Argentina, Bolivia, Brazil, Colombia, Costa Rica, Dominican Republic (for Commonwealth of Latin American and Caribbean States (CELAC)), Ecuador, El Salvador, Jamaica (for Caribbean Community (CARICOM)), Mexico, Nicaragua, Saint Vincent and Grenadines, Uruguay and Venezuela (for Non-Aligned Movement (NAM)).
Africa: Algeria, Angola, Libya, Mozambique, Namibia, Niger (for African States), South Africa, Sudan and Tonga.
Middle East: Egypt, Kuwait (for Organization of Islamic Conference (OIC)) and Syria.
Asia: Belarus, China, Democratic People’s Republic of Korea [North Korea], India, Indonesia, Iran, Lao People’s Democratic Republic, Malaysia, Myanmar, Russian Federation, Singapore (for Association of Southeast Asian Nations (ASEAN)), Thailand (for Group of 77 and China) and Viet Nam.
Europe: Slovakia (for European Union (EU)).

U.S. Abstention[4]

The U.S. Ambassador and Permanent Representative to the United Nations, Samantha Power, announced the U.S. abstention before the debate and voting on the resolution. Here are extracts of her speech about that vote.

“For more than 50 years, the [U.S.] had a policy aimed at isolating the government of Cuba. For roughly half of those years, U.N. Member States have voted overwhelmingly for a General Assembly resolution that condemns the U.S. embargo and calls for it to be ended. The [U.S.] has always voted against this resolution. Today the [U.S.] will abstain.”

“In December 2014, President Obama made clear his opposition to the embargo and called on our Congress to take action to lift it. Yet while the Obama Administration agrees that the U.S. embargo on Cuba should be lifted, . . . we don’t support the shift for the reason stated in this resolution. All actions of the [U.S.] with regard to Cuba have been and are fully in conformity with the U.N. Charter and international law, including applicable trade law and the customary law of the sea. We categorically reject the statements in the resolution that suggest otherwise.”

“But [today’s] resolution . . . is a perfect example of why the U.S. policy of isolation toward Cuba was not working – or worse, how it was actually undermining the very goals it set out to achieve. Instead of isolating Cuba, . . . our policy isolated the [U.S.], including right here at the [U.N.].”

“Under President Obama, we have adopted a new approach: rather than try to close off Cuba from the rest of the world, we want the world of opportunities and ideas open to the people of Cuba. After 50-plus years of pursuing the path of isolation, we have chosen to take the path of engagement. Because, as President Obama said in Havana, we recognize that the future of the island lies in the hands of the Cuban people.”[5]

“Abstaining on this resolution does not mean that the [U.S.] agrees with all of the policies and practices of the Cuban government. We do not. We are profoundly concerned by the serious human rights violations that the Cuban government continues to commit with impunity against its own people – including arbitrarily detaining those who criticize the government; threatening, intimidating, and, at times, physically assaulting citizens who take part in peaceful marches and meetings; and severely restricting the access that people on the island have to outside information.”

“We [,however,] recognize the areas in which the Cuban government has made significant progress in advancing the welfare of its people, from significantly reducing its child mortality rate, to ensuring that girls have the same access to primary and secondary school as boys.”

“But none of this should mean that we stay silent when the rights of Cuban people are violated, as Member States here at the [U.N.] have too often done. That is why the [U.S.] raised these concerns directly with the Cuban government during our [recent] historic dialogue on human rights . . ., which shows that, while our governments continue to disagree on fundamental questions of human rights, we have found a way to discuss these issues in a respectful and reciprocal manner.[6] We urge other Member States to speak up about these issues as well.”

“As President Obama made clear when he traveled to Havana, we believe that the Cuban people – like all people – are entitled to basic human rights, such as the right to speak their minds without fear, and the right to assemble, organize, and protest peacefully. Not because these reflect a U.S.-centric conception of rights, but rather because they are universal human rights – enshrined in the U.N. Charter and in the Universal Declaration of Human Rights – which all of our 193 Member States are supposed to respect and defend. Rights that are essential for the dignity of men, women, and children regardless of where they live or what kind of government they have.”

The U.S. concedes that it “has work to do in fulfilling these rights for our own citizens. And we know that at times in our history, U.S. leaders and citizens used the pretext of promoting democracy and human rights in the region to justify actions that have left a deep legacy of mistrust. We recognize that our history, in which there is so much that makes us proud, also gives us ample reason to be humble.”

“The [U.S.] believes that there is a great deal we can do together with Cuba to tackle global challenges. That includes here at the [U.N.], where the decades-long enmity between our nations has at best been a distraction – and at worst, an obstacle – to carrying out some of the most important work of this institution and helping the world’s most vulnerable people.”

U.S. Reactions[7]

Engage Cuba, a U.S. national coalition of private companies, organizations and state and local leaders working to lift the embargo, said, “Year after year, the international community has condemned our failed unilateral sanctions that have caused great economic hardship for the people of Cuba and continue to put American businesses at a competitive disadvantage. The fact that the Administration and Israel abstained from voting for the first time ever demonstrates the growing recognition that the U.S. embargo on Cuba is a failed, obsolete policy that has no place in today’s international affairs.”

Senator Marco Rubio (Rep., FL), on the other hand, blasted the abstention, saying the Obama administration had failed to honor and defend U.S. laws in an international forum. Similar negative reactions were registered by Senators Ted Cruz (Rep., FL) and Robert Menendez (Dem., NJ), Republican Representatives from Florida, Ileana Ros-Lehtinen and Mario Diaz-Balart, and the U.S.-Cuba Democracy PAC.

As an U.S. citizen-advocate for ending the embargo as soon as possible, I am pleased with the U.S. abstention and agree with Ambassador Power that this vote does not mean the U.S. agrees with the resolution’s stated reasons.

Moreover, too many in the U.S. believe the Cuban damages claim from the embargo is just a crazy Cuban dream, but I disagree. Given the amount of the claim, Cuba will not someday tell the U.S. to forget it. A prior post, therefore, suggested that the two countries agree to submit this and any other damage claims by both countries for resolution by an independent international arbitration panel such as those provided by the Permanent Court of Arbitration at the Hague in the Netherlands.

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[1] U.N. Press Release, U.S. abstains for first time in annual UN vote on ending embargo against Cuba (Oct. 26, 2016).

[2] A prior post replicated the Presidential Policy Directive while another post provided reactions thereto.

[3] U.N. Press Release, General Assembly Plenary (Oct. 26, 2016); The defeat of the blockade is the world’s largest moral and political victory for the people of Cuba against the empire, Granma (Oct. 26, 2016) (Venezuela’s statement); Today not only do we vote against the blockade, we voted for hope, Granma (Oct. 26, 2016) (Bolivia’s statement).

[4] Ambassador Power, Remarks at a UN General Assembly Meeting on the Cuban Embargo (Oct. 26, 2016). Israel, which also abstained, merely said that it welcomed the improved U.S.-Cuba relations and hoped it would lead to a new era in the region.

[5] A prior post reviewed President Obama’s eloquent speech in Havana to the Cuban people.

[6] A prior post reviewed the limited public information about the recent human rights dialogue.

[7] Ordońez, For 1^st time, U.S. changes its position on U.N. resolution blasting Cuba trade embargo, InCubaToday (Oct. 26, 2016); Engage Cuba, Press Release: Engage Cuba Praises First Ever Unanimous Passage of United Nations Resolution Condemning the Cuban Embargo (Oct. 26, 2016); Lederer & Lee, US abstains in UN vote on Cuba embargo for the first time, Wash. Post (Oct. 26, 2016); Rubio, Rubio: Obama Admin Ignoring U.S. Law on Cuba Embargo, Giving More Concessions to Castro Regime at U.N. (Oct. 26, 2016).

U.S. Continues Its Absurd Special Immigration Benefits for Cubans

This blog has frequently criticized the U.S. special immigration benefits for Cubans under the Cuban Adjustment Act and the wet foot/dry foot policy.[1]

On August 29 nine Latin American countries joined together to call for the U.S. to end these policies. Their joint letter was signed by the foreign ministers of Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Mexico, Nicaragua, Panama and Peru, all of which recently have been affected by large numbers of Cubans transiting through their countries to reach the U.S.-Mexico border and gain admittance to the U.S. under these policies.[2]

The letter expressed their “deep concern” that U.S. policy toward Cuban migrants is creating a humanitarian crisis and encouraging “a disorderly, irregular and unsafe flow of Cubans. Cuban citizens risk their lives, on a daily basis, seeking to reach the United States. These people, often facing situations of extreme vulnerability, fall victim to mafias dedicated to people trafficking, sexual exploitation and collective assaults. This situation has generated a migratory crisis that is affecting our countries.”

The letter also requested a meeting on these issues with Secretary of State John Kerry.

The letter was announced on August 29 by Ecuador’s Foreign Minister Guillaume Long, saying, “The fact that nine foreign ministers have signed this letter shows the strength of the sentiment in Latin America that United States policy is creating a migration crisis in our region. It’s time for the U.S. to change its outdated immigration policies toward Cubans, because they are undermining regular and safe migration in our continent.” Long added that the decades-old policy also is a form of “terrible discrimination,” given that scores of migrants from other Latin American countries are forced to “hide and often live decades with the threat of deportation” if they are undocumented, while Cubans are given residence if they step foot on U.S. territory. This injustice must stop for the wellbeing of all.”

The prior week the Costa Rican Foreign Minister Manuel González told the McClatchy news organization that the issue has cost his country millions of dollars it doesn’t have and has raised complaints from Costa Ricans about spending resources on stranded foreigners when they were needed by the nation’s own citizens. “The difficulties between the U.S. and Cuba has a direct consequence on other countries in our region that serve as transit. And we are, in a way, paying the consequences of that bilateral relationship.”

Cuban migration indeed is a serious problem for these Latin American countries and for Cuba. More than 46,500 Cubans were admitted to the U.S. without visas during the first 10 months of the 2016 fiscal year compared with more than 43,000 in 2015 and just over 24,000 in 2014.

The continuation of this combined policy has been criticized by the New York Times editorial board. This “anachronistic policy is irrational, strains relations with America’s neighbors and endangers lives. It also has the effect of easing pressure on Cuba’s authoritarian government to make economic and political reforms by offering an incentive to those who are most dissatisfied with the status quo to take a dangerous way out.”[3]

A similar criticism was offered by a prominent writer on Latin American affairs, Andrés Oppenheimer. He said, “It’s time to revise the U.S. government’s special status for Cuban refugees. But it should be done as part of a new commitment by all countries in the region to grant asylum to Cuba’s political refugees, and to press Cuba to abide by international human rights laws. . . . It’s time for all sides to end Cuba policies that are relics of the Cold War. Washington should change its much-abused laws giving special status to all Cuban refugees, and Latin American countries should end their shameful silence on Cuba’s repressive dictatorship, which is at the root of Cuba’s main problems. These are new times that require new policies by all countries.”[4]

Nevertheless, on August 30, a U.S. State Department spokesman acknowledged receipt of the letter from nine Latin American countries and merely said, “the Cuban Adjustment Act remains in place and wet foot/dry foot remains U.S. policy regarding Cuban migration.” He also added these comments: “we are concerned for the safety of all migrants throughout the region, including migrants seeking to journey northward through South and Central America and Mexico. Irregular migration often involves dangerous journeys that illustrate the inherent risks and uncertainties of involvement with organized crime, including human smugglers and traffickers in attempts to reach the United States. We continue to encourage all countries to respect the human rights of migrants and asylum seekers, and to ensure that they are treated humanely. And we’re going to continue to, obviously, engage governments in the region on this issue going forward.”[5]

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[1] See posts listed in “Cuban Migration to U.S., 2015-2016” in List of Posts to dwkcommentaries—Topical: Cuba.

[2] Ordońez, Nine Latin nations band together to plead with U.S. over Cuba, InCubaToday (Aug. 29. 2016); Telesur, Nine Latin American Countries Slam US for creating migrant crisis, Global Research (Aug. 29, 2016); Assoc. Press, LatAm Diplomats Urge US to Change Policy on Cuban Migrants, N.Y. Times (Aug. 29, 2016).

[3] Editorial, Neighbors Question Cuba Migration Policy, N.Y. Times (Aug. 31, 2016).

[4] Oppenheimer, It’s time to change Cubans’ special immigration status, InCubaToday (Aug. 31, 2016).

[5] U.S. State Dep’t, Daily Press Briefing (Aug. 30, 2016).

Continued Cuban Migrant Problems in Central America

Since late last year large numbers of Cuban migrants have traveled by land through Central America to try to reach the U.S.-Mexico border where they will be paroled into the U.S.[1]

This movement of Cubans continues, and on May 9, Panama’s President Juan Carlos Varela announced he had agreed with his Mexican counterpart to fly 3,800 Cubans already stranded for weeks in Panama to the Mexico-U.S. border at the Cubans’ expense. The flights began that day and will last two to three weeks.[2]

Varela said it was a difficult decision, but necessary because Nicaragua closed its border to Cubans last year and impeded their journey north and more recently Costa Rica had done likewise. As a result, this March Panama organized flights to Mexico for 1,300 Cubans while insisting such flights would not be repeated.

On May 9 the Panamanian government took additional action to confront this problem by closing its southern border with Colombia in an effort to stop the flow. “We’ve taken the difficult decision to close the border with Colombia in the Puerto Obaldia area and in other parts of the border to prevent the trafficking of illegal immigrants,” Varela said.

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[1] Here are a few of the posts regarding Cuban migrants in Central America: 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).

[2] Reuters, Panama Closes Border With Colombia to Stem Migrant Flow, N.Y. Times (May 9, 2016); Assoc. Press, Panama Closes Border to Cubans, Flies Others to Mexico, N.Y. Times (May 9, 2016); Panama begins more flights of Cuban migrants to Mexico, BBC News (May 9, 2016); Wyss, Cuban migrants face dangerous, grueling jungle trip as Panama clamps down, Miami Herald (May 9, 2016).

Another Cuban Migrant Problem in Central America

Last November 8,000 Cuban migrants were stranded in Costa Rica on their journey to the U.S. after Nicaragua closed its borders with Costa Rica. This crisis eventually was resolved by a multilateral effort in that region to transport the migrants by plane and bus to the Mexico-U.S. border where they gained entry to the U.S. The last of such transfers occurred this March. Another part of the “solution” was Costa Rica’s closing its southern border to additional Cuban migrants coming from neighboring Panama.[1]

It recently has been revealed that the U.S. in January, pledged at least $1 million to help provide temporary shelter, potable water, food, sanitation and hygiene kits to the thousands of Cubans who had been stranded in Costa Rica while trying to make their way to the American border. The U.S. did so through the International Organization for Migration. The State Department said, “We expect this particular contribution to be a one-time contribution, and the final amount that will actually be provided to I.O.M. will depend upon needs on the ground, given that the number of vulnerable migrants in need of immediate humanitarian aid in Costa Rica fluctuates.”[2]

Now another similar crisis has erupted with over 3,500 Cuban migrants stranded in Panama and unable to enter Costa Rica. On April 13 an estimated 1,200 of the Cubans illegally entered Costa Rica after attacking one of its immigration offices at the border.

Costa Rica’s Response[3]

In its initial response, on April 11, Costa Rica’s Foreign Minister, Manuel González Sanz, issued a warning to the new wave of undocumented Cubans hoping to travel by land from Ecuador to the U.S. He said, “I want to make absolutely clear, to all the [Cuban] migrants who are coming and those already in Panama, that Costa Rica cannot and will not receive them.”

Moreover, The Foreign Minister stated Costa Rica ““will make use of all domestic and international measures at its disposal to address this situation, if we face something similar to what we faced from November to March.” His country, the Foreign Minister added, “already gave everything it could give, did more than it was required to do, and we definitely are not in a position to confront—not as part of a group and certainly not alone, as we did in the past—a situation similar to what the country experienced.”

González’s statement appropriately blamed U.S. laws, especially the Cuban Adjustment Act, granting special immigration benefits to Cubans arriving by land at the U.S. border. Therefore, the issue of Cuban migration “should be part of the bilateral relations between Cuba and the United States, but the reality is that the countries from Ecuador to Mexico, we are the ones caught in the middle and we are the ones suffering the consequences of laws that incite that migration.”

The next day, April 12, Costa Rica hosted a regional meeting to discuss this new migrant crisis. Other countries present were Ecuador, Colombia, Panama, El Salvador, Guatemala, Honduras, Mexico and the U.S. Absent were Nicaragua and Cuba. Costa Rica’s Foreign Minister said, ““We are once again faced with a valuable opportunity to continue the dialogue, take advantage of good practices and experiences, reaffirm our commitments and, as in the meetings that preceded this, demonstrate that we can provide permanent concrete solutions,” He added, “ If there is not a coordinated, structural approach by all the countries involved, we will continue to have these events affecting countries individually. But individual action has proven to be too fragile for one country to take on a problem of such magnitude.”

After the April 13 illegal entry of Cuban migrants, the Costa Rican government issued another statement. It said the government:

“Reaffirms its commitment to respect for human rights and the protection of the dignity of persons irrespective of their nationality. The Government is obliged to maintain, in compliance with the law a climate of social peace for its citizens, to events that put their safety at risk.”

“Remembers that Costa Rica was an example to the world with humanitarian assistance of Cuban migrants, with the help of communities, civil society, municipalities and public institutions to more than 8,000 people who were stranded in our territory attended between November 2015 and March 2016.”

“Remembers that since December 18, 2015, Costa Rica ceased granting extraordinary transit visas to Cuban migrants, who were notified, transparently and straightforwardly, they cannot enter the country illegally.”

“Reports the various U.S. regulations that promote and privilege for entry into that country, incite illegal Cuban migration and create perverse incentives to migration and favorable conditions for trafficking in human beings.”

“Deplores that Costa Rica and Panama are trapped in a region that maintains closed northern borders and open southern borders.”

“Reports that today more than a thousand irregular migrants entered Costa Rica violently in an affront to the Costa Rican people, who attended in past months so timely and generously to Cuban migrants.”

“Declares that Costa Rica has no economic or logistical capacity to host new groups of migrants. The Costa Rican people have given more than our ability is to sustain these groups of people.”

“Announced that efforts are made with the government of Panama to return all migrants irregularly entering our territory.”

“Repudiates and rejects all acts of violence and anyone who enters that way will be stopped.”

“Reports that Costa Rica had an active participation in the meeting held yesterday in San Jose, Costa Rica with chancellors, vice chancellors, members of government, immigration authorities and officials from UNHCR, UNDP, IOM. This meeting did not produce the expected results.” (Emphasis added.)

In addition, the President of Costa Rica, Luis Guillermo Solis Rivera, issued an order to implement this statement. In addition, the President stated that his government will write to President Obama to express his country’s “repudiation of . . . the effect of U.S. legislation which encourages [Cuban] migrants to continue a dangerous transit to that country using our territories.”

On April 15, the Government of Costa Rica issued another statement about the situation. This statement reiterated the previous points and declared that “Costa Rica and Panama are working to find joint and sustainable international solutions” to this problem.

Panama’s Response

On April 15, the Panama Foreign Ministry expressed “its concern about the current crisis of Cuban migrants in Latin America and their interest and willingness to find a sustainable and joint solution with the countries of the region.” It called on “the migrants living in our country to respect the peace and rules of both countries, especially in such a difficult situation.” At the same time, Panama has made significant efforts to safeguard the human rights of the migrants and has obtained Mexico’s agreement for nearly 1,300 Cuban migrants to fly from Panama to Mexico so they can continue their transit to the U.S. [4]

Cuba’s Response

Although invited to the Costa Rica meeting about the problem, Cuba did not attend, and no official Cuban statement on the matter has been found.

However, Raúl Castro as First Secretary of the Communist Party of Cuba on April 16 delivered the Central Report to the Party’s Seventh Congress. He said that U.S. migration policies that encourage Cubans to defect were “a weapon against the revolution.”[5]

U.S. Response

To my amazement and regret, I have not found any response to this situation from the U.S. Government.

However, prior posts have argued that the U.S. should terminate its ”dry feet” policy that allows Cubans automatic entry into the country without a visa when arriving by land as well as the U.S. Cuban Medical Personnel Parole Policy that grants such personnel parole into the U.S. These policies are based upon the obsolete U.S. notion that every Cuban leaving the island is escaping persecution.[6]

These recent problems in Central America provide another reason for the U.S. to terminate these programs. Our friends in Central and South America are being subjected to intolerable burdens from Cuban migrants and our friends also see what they regard as unfair harsh U.S. immigration policies for their people seeking to go to the U.S. when compared with the Cubans.

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[1] This earlier crisis was discussed in these blog posts: 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); Status of Cuban Migrants in Central America Still Unresolved (Dec. 11, 2015); Resolution of Problem of Cuban Migrants Stranded in Central America (Dec. 30, 2015).

[2] Robles, U.S. Pays to Feed and Shelter Cuban Migrants Stranded in Costa Rica, N.Y. Times (Mar. 4, 2016;

[3] Meléndez, Costa Rica says its doors are closed to Cubans, Miami Herald (April 11, 2016); Costa Rica Foreign Ministry, Deputy Foreign Ministers Meeting in Costa Rica allowed constructive dialogue on the issue of migration flows (April 12, 2016); San Martin, Central American countries meet to resolve new Cuban migration wave, Miami Herald (April 12, 2106); Costa Rica Foreign Ministry, Declaration by the Government of Costa Rica to irregular entry of migrants (April 13, 2016); Assoc. Press, Migrants Force Way Into Costa Rica From Panama, N.Y. Times (April 13, 2016); Dyer, Costa Rica pushed greater regional cooperation on Cuba, African migration, Tico Times (April 13, 2016); Fernandez, Cuban migrants force their way across the Panama-Costa Rica border,Miami Herald (April 14, 2016); Costa Rica Foreign Ministry, Statement of the Government of Costa Rica to the attempt of massive influx of Cuban migrants (April 15, 2016).

[4] Panama Foreign Ministry, Panama reiterates concern over problems of Cuban migrants (April 15, 2016).

[5] Reuters, Castro Hardens Rhetoric, Warns Cubans to Be Alert to U.S. Intentions, N.Y. Times (April 16, 2016).

[6] Prior posts about special U.S. immigration laws for Cubans: New York Times Calls for End of U.S. Program for Special Immigration Relief for Cuba Medical Personnel (Nov. 23, 2014); U.S. and Cuba Fail To Resolve Complaints About U.S. Immigration Policies (Dec. 1, 2015); President Obama Should Exercise His Legal Authority To End U.S. Admission of Cubans Arriving with “Dry Feet” (Dec. 4, 2015); New York Times Calls for End to Special U.S. Immigration Programs for Cubans (Dec. 21, 2015); U.S. Ending Its Cuban Medical Personnel Parole Program? (Jan. 8, 2016).

Cuban Migration Developments

In recent weeks there have been significant developments regarding Cubans leaving, and returning to, the island and possible changes to U.S. laws regarding Cubans coming to the U.S.

Cuban Migrants in Central America

“Test Plan” for Transit of Cuban Migrants to U.S.

As reported in prior posts, about 8,000 Cuban migrants have been stranded in Costa Rica on their journeys to the U.S., but last December Mexico and certain Central American governments agreed on a “test plan” to transport the migrants via air and bus from Costa Rica through El Salvador, Guatemala, Honduras and Mexico to the U.S. border.[1]

On January 12 the initial group of 180 of these migrants started this journey, and on the next morning they had arrived in Ciudad Hidalgo on the Honduras-Mexico border, where they were granted 20-day transit visas. They were then put on their own to get to the Mexico-U.S. border. The first of them reached the Mexico-U.S. border at Laredo, Texas on the evening of January 14. And on January 18 a group of 30 arrived in Florida (Tampa, Sarasota, Fort Myers and Miami).[2]

In anticipation of the arrival of many of these Cubans in the Miami, Florida area, the mayors of Miami-Dade County in Florida have asked the federal government for funds to assist in welcoming many of those Cubans who are expected to come to their county.[3]

Evaluation of “Test Plan”[4]

On January 20 Guatemala hosted a meeting with representatives of Costa Rica, El Salvador, Honduras, Mexico, Panama, Belize and members of the International Organization for Migration to review the operation of the “test plan.” During the meeting an analysis of the operation was performed and each country presented their experience in the management of migration and visa issues as well as logistics and security. They concluded that the process was successful and that the passage of the Cuban migrants was made in a legal, orderly, safe and transparent manner. They also agreed to collaborate better and improve coordination needed for future transfers and to meet again on February 15 to review further progress.

Future Transit of Cuban Migrants to the U.S.

The representatives at the January 20 meeting also concluded to resume the transit of Cubans in Costa Rica on February 4 with two weekly flights (February 9, 11, 16, 18, 23 and 25) from Costa Rica to El Salvador followed by their busing to the Honduras-Mexico border and thence on their own to the Mexico-U.S. border. Priority will be given to households with pregnant women or children, with earlier dates of entry into Costa Rica, the numbers on their Costa Rica visas and the financial resources to pay for the transit. In addition, Costa Rican officials will visit Cubans remaining in shelters to renew their visas.

Each Cuban will pay $555 for the charter flight, the bus and food arranged by a travel agency. Once in Mexico, the Cubans will receive a 20-day transit visa to make it on their own to the U.S. border. U.S. and Mexican officials hope is to hatch a similar plan for the 3,000 Cubans stranded in Panama.

Cuban Migrants By Sea

On May 2, 1995, in response to a large increase in Cubans who were attempting to make the dangerous crossing of the Caribbean Sea to get to Florida, the U.S. and Cuba entered into an agreement whereby the two countries “reaffirm their common interest in preventing unsafe departures from Cuba. Effective immediately, Cuban migrants intercepted at sea by the [U.S.] and attempting to enter the [U.S.] will be taken to Cuba.”[5]

Since then, the U.S. has done just that. Such an agreement and practice, it was believed, would discourage other Cubans from attempting such dangerous journeys. This then became known as the “wet feet” part of the U.S. disjunctive dry feet/wet feet policy. Here are the statistics on such interdictions:[6]

Fiscal Year (Oct.1-Sept. 30)	Number of Interdictions
1995	525
1996	411
1997	421
1998	903
1999	1,619
2000	1,000
2001	777
2002	666
2003	1,555
2004	1,225
2005	2,712
2006	2,810
2007	2,868
2008	2,216
2009	799
2010	422
2011	985
2012	1,275
2013	1,357
2014	2,111
2015	2,924

So far in Fiscal 2016 (10/01/15-01/14/16), the U.S. Coast Guard estimates that 1,942 Cubans have been interdicted at sea or have attempted to land in the U.S. or have actually landed by sea. For the first half of January 2016 alone, a total of 396 Cuban migrants have been picked up in the waters between Florida and Cuba and returned to Cuba. The increases in Fiscal 2015 and so far in Fiscal 2016 are believed to have been caused by the December 2014 announcement of normalization between the two countries and Cubans’ concern that the U.S. might end its special immigration benefits for Cubans.[7]

In addition, the U.S. Coast Guard reports that more of the Cubans who have been interdicted and put on Coast Guard vessels are jumping overboard, trying to poison themselves or making self-inflicted wounds in attempts to be taken to U.S. shore. As a result the Guard has added security personnel on the vessels.

A Guard official recently said, “Immigration policies have not changed, and we urge people not to take to the ocean in unseaworthy vessels. It is illegal and extremely dangerous.”

Some Cubans Returning to Cuba[8]

Nick Miroff of the Washington Post reports there is a “growing number of Cubans who have opted to move back to the island in recent years as the Castro government eases its rigid immigration rules. The returnees are a smaller, quieter counter-current to the surge of Cubans leaving, and their arrival suggests a more dynamic future when their compatriots may come and go with greater ease, helping to rebuild Cuba with earnings from abroad.”

Indeed, Miroff says, these returnees or “repatriates are not coming back for socialism. They are coming back as capitalists. . . . [or as] trailblazing entrepreneurs. Prompted by President Raúl Castro’s limited opening to small business and his 2011 move allowing Cubans to buy and sell real estate, the repatriates are using money saved abroad to acquire property and open private restaurants, guesthouses, spas and retail shops.”

In 2012, Cuban immigration officials said they were processing about 1,000 repatriation applications each year. “The numbers appear to have increased since then, at least judging from anecdotal evidence and the proliferation of new small businesses in Havana run by returnees.”

“Many of the repatriates . . . are returning from Europe and Latin America. Cubans in the [U.S.] may be more reluctant to return to the island because of their relatively high incomes . . . [in the U.S. and because U.S.] economic sanctions also make it essentially illegal for any U.S. resident to go to Cuba and run a business. And the ability to buy property remains mostly restricted to Cubans who live on the island.”

Possible Changes in U.S. Immigration Laws Regarding Cubans

As noted in previous posts, Cuba and now Central American countries have been vigorous opponents of the U.S. policy of allowing Cubans who arrive on land to come into the U.S. without visas, and the U.S. Administration repeatedly has said it has no intentions of changing that policy.

In the meantime, the only congressional bill to end the special treatment for Cubans arriving by land at the U.S. border that was offered by Representative Paul Gosar (Rep., AZ)—Ending Special National Origin-Based Immigration Programs for Cubans Act of 2015 (H.R.3818)– has gained little support beyond its nine cosponsors.[9]

Under another law, Cubans who have arrived in the U.S. by land are automatically eligible for federal public assistance under the Refugee Resettlement Program. On January 12, 2016, Senator Marco Rubio (Rep., FL), a candidate for the Republican presidential nomination, introduced a bill to end these automatic federal benefits.[10]

The bill, The Cuban Immigrant Work Opportunity Act of 2016 (S.2441), which has no cosponsors and which was referred to the Senate Finance Committee, would terminate the automatic eligibility for federal public assistance for Cuban nationals under the Refugee Resettlement Program, while maintaining it for those that have been persecuted that are in need of resettlement assistance.

Rubio said, ““It is outrageous whenever the American people’s generosity is exploited. It is particularly outrageous when individuals who claim to be fleeing repression in Cuba are welcomed and allowed to ‎collect federal assistance based on their plight, only to return often to the very place they claimed to be fleeing. The weaknesses in our current law not only allow the flow of American tax dollars into the Castro regime’s coffers, it also undermines the legitimate cause of those Cubans who are truly fleeing repression and political persecution.”

Rubio’s rationale for this bill would also justify the U.S.’ ending its previously mentioned “dry feet” immigration policy.

Yet another special U.S. immigration program for Cubans—the Cuban Medical Professional Parole Program—is under consideration for cancellation by the Obama Administration.[11]

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[1] 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); Status of Cuban Migrants in Central America Still Unresolved (Dec. 11, 2015); Resolution of Problem of Cuban Migrants Stranded in Costa Rica (Dec. 30, 2015).

[2] Date set for the departure of first group of Cuban migrants from Costa Rica, Granma (Jan. 8, 2016); Robles, Cubans, Fearing Loss of Favored Status in U.S., Rush to Make an Arduous Journey, N.Y. Times (Jan. 9, 2016); Reuters, First Group of Stranded Cuban Migrants Leave Costa Rica, N.Y. Times (Jan. 13, 2016); Assoc. Press, Cubans Begin Pilot Transfer From Costa Rica to Mexico, N.Y. Times (Jan. 13, 2016); Assoc. Press, Stranded Cuban Migrants Brought by Air, Bus to Mexico, N.Y. Times (Jan. 13, 2016); Reuters, Mexico to Grant Transit Visas to Cuban Migrants, N.Y. Times (Jan. 13, 2016); Perez & Cordoba, Stranded Cuban migrants brought by air, bus to Mexico, Wash. Post (Jan. 13, 2016); First group of Cuban migrants arrive in Mexico, Granma (Jan. 13, 2016); Assoc. Press, Stranded Cuban Migrants Make Plans to Cross Mexico, N.Y. Times (Jan. 14, 2015); Assoc. Press, First of 8,000 Stranded Cuban Migrants Cross Into US, N.Y. Times (Jan. 15, 2016); Barbero, The first Cubans stranded in Central America come to Miami, El Pais (Jan. 19, 2016).

[3] Barbero, Miami seeks help from Obama before the arrival of Cubans, El Pais (Jan. 7, 2016),

[4] Prensa Latina,Guatemala: Cuban Migrant Issue to be Tackled in regional Meeting, Esacambray (Jan. 20, 2016); Costa Rice Foreign Ministry, Next trip to Cuban migrants will be on February 4 (Jan. 20, 2016); Central American governments agreed to Cubans plan, Granma (Jan. 21, 2016).

[5] U.S.-Cuba Joint Statement on Migration, May 2, 1995, Dispatch Magazine.

[6] Focus on Cuba: Current Issues and Developments at 41 (2008); U.S. Coast Guard, Alien Migrant Interdiction (May 31, 2015)

[7] Clary, Number of Cubans intercepted at sea rises to highest level in two decades, SunSentinel (Nov. 4, 2015); Flechas, U.S. Coast Guard repatriates 169 Cuban migrants, Miami Herald (Jan. 14, 2016) Rohrer, Post-Thaw, Cuban refugees surge in Florida, Orlando Sentinel (Jan. 19, 2016); Assoc. Press, Coast Guard: Migrants Fleeing Cuba Increasingly Violent, N.Y. Times (Jan. 20, 2016).

[8] Miroff, Amid a historic wave of emigration, some Cubans are returning home, Wash. Post (Jan. 1, 2015).

[9] Gosar, Press Release: Gosar Introduces Bill to End Wet Foot/Dry foot Policy & Stop Cuban Amnesty (Oct. 23, 2015)

[10] Rubio, Rubio Introduces Legislation To End Rampant Abuse of Cuban Refugee Resettlement Benefits (Jan. 12, 2016); Reuters, Republican Rubio Authors Senate Bill to Curb Cuban Immigration Benefits, N.Y. Times (Jan. 12, 2016) A companion bill (H.R.4247) was introduced in December 2015 in the House by Representative Carlos Curbelo, a fellow Cuban-American Republican from Florida. It has 12 cosponsors and was referred to the House Judiciary Committee.

[11] U.S. Ending Its Cuban Medical Professional Parole Program? (Jan. 8, 2016).

Resolution of Problem of Cuban Migrants Stranded in Central America

On December 28, 2015, five Central American countries and Mexico apparently resolved the problem created by the presence of 6,000 to 8,000 Cuban migrants in Costa Rica. Many of the circumstances leading up to the presence of these migrants have been discussed in prior posts.[1] This post will review subsequent events that have made the problem more pressing for Costa Rica, the recent agreed-upon solution for this problem and issues presented for its full implementation.

Recent Developments

On December 18, 2015, Costa Rica suspended its participation in the political bodies of the Central American Integration System (SICA) because of the refusal of three members (Belize, Guatemala and Nicaragua) to seek a regional solution to the transit of the migrants on their way to the U.S.[2]

On the same date, Costa Rica announced that it would no longer issue any more transit visas to Cubans seeking to enter the country and that it would deport to Cuba any Cubans in the country without such visas. [3]

On Sunday, December 27, Pope Francis led the Angelus Prayer with pilgrims and tourists gathered in St. Peter’s Square from the window of his study in the Apostolic Palace at the Vatican. Immediately after the prayer, Francis said, “[M]y thoughts at this time to the numerous Cuban migrants who find themselves in difficulties in Central America, many of whom are victims of human trafficking. I invite the countries of the region to renew generously all necessary efforts to find a timely solution to this humanitarian tragedy.”[4]

Agreed-Upon Solution[5]

On Monday, December 28, Costa Rica, Panama, El Salvador, Honduras, Mexico and Guatemala met in Guatemala with the International Organization for Migration and agreed to what they called a “pilot project” to resolve the Cuban migrants problem. Here the main points of that “pilot program:”

In the first week of January 2016, 250 of the 6,000 to 8,000 migrants in Costa Rica will be flown from San Jose, Costa Rica to San Salvador, El Salvador, where they will obtain the latter’s transit visas.
These migrants will then be transferred to buses to be taken from El Salvador through Guatemala and Mexico to the latter’s northern border with the U.S. while obtaining on the journey the latter Guatemala and Mexican transit visas.
At the U.S. border, the migrants will present their papers to U.S. immigration officials and presumably will be allowed to come into the U.S. under its dry feet/wet feel policy.

In addition, the five Central American countries and Mexico reaffirmed their commitment to combat human trafficking networks, to apply the law “without delay” in order to severely penalize this illegal activity that “unfortunately obliges countries in the region to return to their country of origin all persons entering their territory in an unauthorized manner, ”to prevent irregular migration and to firmly combat the crime of human trafficking, and primarily to protect the integrity of migrants and ensure respect for their fundamental rights,” They also agreed to convene a Regional Conference on Migration to address this issue in its entirety.

El Salvador’s announcement of this agreement stated that its participation in the solution was “in line with the call made by His Holiness Pope Francis, in his message of December 27.” This sentiment was echoed by Edgar Gutiérrez, a political analyst and former Guatemalan foreign minister, who said, “I believe that the pope’s comments were extremely important to accelerate the negotiation process.”

The U.S. and Cuba were not directly involved in the negotiations of this agreement, but according to the Wall Street Journal, both of these countries had pressed the Central American countries to reach a regional agreement on resolving the current situation before the end of this year. They did so after the U.S. reportedly rejected a Costa Rica request for the U.S. to airlift the migrants directly to the U.S. and after Cuba’s Foreign Minister Bruno Rodríguez stated that “Cuba requests that the solution for the thousands of Cuban migrants in Costa Rica is adequate, taking into account the welfare of these citizens, and that it is as swift as possible.”

Just before this agreement was reached, the New York Times published a letter from Costa Rica’s Ambassador stressing “the growing humanitarian and economic challenge that Costa Rica faces in caring for [the Cuban migrants].”[6]

Concerns About the Agreed-Upon Solution

The current public information about the agreed-upon solution presents the following questions (and problems):

Will the ‘pilot project” be successful?
If it is successful, how many separate flights and bus trips will be necessary for all 6,000 to 8,000 migrants legally in Costa Rica? Based upon the 250 migrants involved in the “pilot project,” it will require a total of 32 such ventures for 8,000 migrants.
Over what period of time?
The “pilot project” and implementation for all of the 6,000 to 8,000 migrants now in Costa Rica with transit visas will be expensive. At only $1,000 per person the total cost would be $6 million to $8 million. Who will pay for it? The countries directly involved clearly are not wealthy countries and presumably cannot afford it. As a result, they probably will ask the U.S. to do. So. Will the U.S. agree to do so?
Will the U.S. still have the dry feet/wet feet policy in effect when the “pilot program” and other migrants arrive at the U.S. border and, therefore, be permitted to come into the U.S.?

An overarching concern is whether this agreement will encourage additional Cubans to leave their country in an effort to get to the U.S. next year, especially after Cuban President Raul Castro’s December 29 speech to the country’s National Assembly warning Cubans that next year will be a difficult year for the Cuban economy.[7]

Carlos Raúl Morales, Guatemala’s foreign minister, said, “We are finishing the work of the smugglers, and of course it will incentivize the arrival of more illegals, but in solidarity we could not ignore the drama in Costa Rica.” Similar thought were offered by Eric Olson, a Latin American analyst at the Wilson Center in Washington.

Central American officials, however, stressed the deal was one-off due to a humanitarian situation and that Costa Rica has ended the transit-visa program that had opened the door to Cuban migrants. “This solution is absolutely an exception for those people who had already arrived legally,” Costa Rican Foreign Minister Manuel González told reporters after the agreement was reached on Monday. “Costa Rica has been very clear that we cannot establish a permanent mechanism” for Cuban immigrants. A Mexican diplomatic official concurred: “The agreement among all of us is that we had to solve this under the principle of shared responsibility and that the problem cannot repeat itself.”

Another result of the surge of Cuban migrants through Central America and of the agreement to resolve the current situation will be the enlistment of all of the Central American countries plus Mexico in Cuba’s effort to persuade the U.S. to terminate as soon as possible its “dry feet/wet feet” immigration policy for Cubans.

This U.S. immigration policy can also be seen as part of the U.S. “visa waiver” program, which currently is under legitimate review for future restrictions to attempt to prevent foreign terrorists from coming to the U.S.[8]

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[1] Cubans in Central America Provide Cuba with Opportunity To Reiterate Its Objections to U.S. Immigration Policies (Nov. 20, 2015); Update on Cuban Migrants in Central America (Nov. 27, 2015); U.S. and Cuba Fail to Resolve Complaints About U.S. Immigration Policies (Dec. 1, 2015); Status of Cuban Migrants in Central America Still Unresolved ((Dec. 11, 2015).

[2] Costa Rica Foreign Ministry, Costa Rica suspends participation in political bodies of SICA refusal to Nicaragua, Guatemala and Belize agreed solution to the transit of Cuban migrants, (Dec. 18 2015).

[3] Assoc.Press, Costa Rica Suspends Visas for Cubans as Regional Protest, N.Y. Times (Dec. 18, 2015); Assoc. Press, Costa Rica Moves to Deport 56 Cuban Migrants, N.Y. Times (Dec. 26, 2015).

[4] The Words of the Pope at Angelus, 27/12/2015; Pope Francis Angelus appeal for Cuban migrants, Va. News (Dec. 27, 2015).

[5] Assoc. Press, Costa Rica: Some Stranded Cubans to be Allowed to Continue North, N.Y. Times (Dec. 28, 2015); Costa Rica Foreign Ministry, Countries in the region agree to give exceptional, safe passage and ordered Cuban migrants (Dec. 28, 2015); Guatemala Foreign Ministry, Press the Republic of Guatemala regarding the meeting held to address the immigration status of Cubans in Costa Rica (Dec. 28, 2015); El Salvador Foreign Ministry, El Salvador reiterates its readiness to cooperate with immigration crisis solution (Dec. 28, 2015); Central American agreement to transfer first group of Cuban migrants, Granma (Dec. 29, 2015); Iliff & Montes, Accord Over Cubans Stranded in Costa Rica Sparks Fear of Illegal Migration Wave, W.S.J. (Dec. 29, 2015).

[6] Macaya, Letter to the New York Times (Dec. 28, 2015).

[7] Iliff & Montes, Accord Over Cubans Stranded in Costa Rica Sparks Fear of Illegal Migration Wave, W.S.J. (Dec. 29, 2015); Assoc. Press, Raul Castro Prepares Cuba for Tough Year Despite US Opening, N.Y. Times (Dec. 29, 2015); Raul Castro, We never accept conditionalities for lacerating the sovereignty and dignity of the homeland, Granma (Dec. 30, 2015).

[8] E.g., Hulse, Some revealing Moments as Congress Closes the Door on 2015, N.Y. Times (Dec. 21, 2015)

Status of Cuban Migrants in Central America Still Unresolved

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.

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[1] Cubans in Central America Provide Cuba with an Opportunity To Reiterates Its Objections to U.S. Immigration Policies (Nov. 20, 2015); Update on Cuban Migrants in Central America (Nov. 27, 2015); U.S. and Cuba Fail To Resolve Complaints About U.S. Immigration Policies (Dec. 1, 2015); President Obama Should Exercise His Legal Authority To End U.S. Admission of Cubans with “Dry Feet” (Dec. 4, 2015).

[2] Reuters, Belize Rejects Plan to Allow Cuban Migrants to Pass Through Its Territory, N.Y. Times (Dec. 8, 2015); Costa Rica Foreign Min., Belize says Cuban migration must be resolved as a regional issue and for now not serve this population (Dec. 8, 2015); OAS, IACHR Expresses Great Concern Regarding Situation of Cuban Migrants on the Costa Rica-Nicaragua Border (Dec. 8, 2015); Costa Rica Foreign Min., Commission expresses deep concern over situation of Cuban migrants at the border between Costa Rica and Nicaragua (Dec. 8, 2015); Assoc. Press, Costa Rica Will Not Send Cuban Migrants Home, N.Y. Times (Dec. 9, 2015);Costa Rica President Sends Message to Cuban migrants to failure of negotiations with countries in the region, Granma (Dec. 9, 2015); Guatemala demands Mexico pledge over blocked Cuban migrants, Tico Times (Dec. 9, 2015); Costa Rica Foreign Min., Bilateral ministerial meetings agenda official visit to Cuba (Dec. 10, 2015).

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

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

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

How the Current Law and Policy Work

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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