Whether as auto mechanics or would-be migrants, Cubans are world-renowned for their resourcefulness, determination and ability to wring lemonade from desperate circumstances. They will now face the U.S. immigration court system, which has been swamped in recent years by border-crossers seeking asylum.
Cubans can potentially still benefit from the privileges afforded to them by the Cuban Adjustment Act of 1966, which only Congress has the power to lift. Any Cuban “inspected and admitted or paroled” into the United States is eligible for permanent residency after 366 days.
The tens of thousands of Cubans who enter the United States with professional, tourist or other nonimmigrant visas will also likely continue to have an easy path to permanent residency under the terms of the Adjustment Act, having been legally "admitted" into the country. In recent years the U.S. consulate in Havana has issued as many as 41,000 such visas annually.
But immigration attorneys say Cubans who enter the United States without a visa, seeking asylum, would not be considered legally “admitted,” so they would not be eligible for residency through the Adjustment Act.
“You would need a legal entry into the United States,” said Wilfredo Allen, a Miami immigration attorney who handles asylum cases.
What the Obama administration eliminated was the policy of granting Cubans legal entry into the United States simply for setting foot in the United States. This ends the so-called wet-foot/dry-foot policy that dates back to the Cuban rafter crisis of 1994-1995, when the United States began sending back any Cuban intercepted at sea (wet) while allowing those who arrived on U.S. territory to stay (dry).
Yet that’s not how the vast majority of Cuban migrants reach the United States today. The number who arrive in rickety boats and rafts is dwarfed by the amount who walk right in through U.S. ports of entry along the Mexican border.
Last year more than 50,000 did so, many citing a fear that U.S.-Cuba normalization had started the clock ticking for the expiration of their immigration perks.
Despite assurances by U.S. officials to the contrary, they were right. As of last night, Cubans can no longer walk across the border bridge and receive automatic “parole."
Instead, they will probably do what tens of thousands of Central American migrants do now: wade across the Rio Grande, wait for the Border Patrol vans to arrive, and ask for asylum, citing a fear of persecution if sent home.
Unlike migrants from Mexico, the U.S. can’t quickly turn them back. They must be detained, processed and have their claims adjudicated. In theory, this should happen quickly. In reality, it often takes years.
Central Americans migrants, in particular, have swamped the federal immigration court system with asylum claims since 2014, telling U.S. authorities that they face mortal danger from rampant violence back home. Most of their petitions are ultimately rejected. But Central Americans have also figured out that the process allows them to remain in the United States temporarily, and they can go underground and stay illegally if judges deny their request for “relief,” i.e., asylum.
Now those same immigration courts will take on the cases of Cubans.
“There’s not going to be a separate queue for Cubans,” Obama's deputy national security adviser, Benjamin Rhodes, who negotiated the normalization deal with Cuba, told reporters Thursday. “So just like any other migrant who reaches our border, they have certain claims that they can pursue, but they’ll be treated as other individuals from other countries are."
Cuba isn’t a hyper-violent, gang-plagued country like Guatemala, El Salvador and Honduras, where vulnerable migrants may be at risk of being murdered if they’re sent back. But the United States government continues to view Cuba’s one-party system as a repressive one that punishes its citizens for exercising democratic rights. Making the case for a fear of persecution may not be difficult for a Cuban seeking to delay or avoid deportation.
“This takes us back to the old policy,” said Allen, the immigration attorney. “Every Cuban will have to apply for political asylum.”
Allen said that while the credible fear standard is "low," most asylum requests are ultimately rejected. The federal immigration court system could adjudicate a Cuban asylum request, deny it, and send that person back to the island. But the backlog of asylum cases is so large that such a process often takes years.
A recent New York Times dispatch from the federal immigration courts in Arlington, Va. — which have a reputation for being among the nation’s most efficient — says that it has eight judges and a backlog of 30,000 cases, with some hearings not scheduled until 2022.
The incoming Trump administration could reverse Obama’s orders and reinstate the policies. The Obama administration also eliminated a program — despised by the Cuban government — that made it easier for Cuban medical professionals to defect while serving on foreign “missions.”
Cuban American Sen. Marco Rubio (R-Fla.) said he would like to see that policy restored. But he was less categorical about the wet-foot/dry-foot rules, which he and other Cuban American leaders say has been abused by migrants, ostensibly seeking refuge, who obtain U.S. residency and then travel back and forth frequently to the island.