The Cuban Adjustment Act: the Other Immigration Mess
This US policy has manipulated and skewed Cuban immigration since 1960 and remains a barrier to normalised relations argue Robert Sandels and Nelson P Valdés
Not so long ago the fictional Cuba of the US myth-making machine was a Caribbean gulag, a dictatorship that sponsored terrorism and trafficked in human beings – that is when it wasn’t torturing them. Today we are left wondering what that was all about now that Secretary of State John Kerry has gone to Cuba for a flag-raising speech in front of the newly christened US Embassy and a brief walkabout in Old Havana.
The gist of Kerry’s remarks is that Cuba should improve its behaviour according to Kerry’s prescriptions. Apparently, he hasn’t been listening to the Cubans, who want the United States to get rid of the thick accumulation of obnoxious and warlike behaviours, starting with the blockade and not forgetting to abandon the US gulag at Guantánamo.
So far the United States has offered no rational justifications for these behaviours as it seeks “normalisation,” but we should at least look at how they originated. As terrifying as history is to leaders in Washington, we will take one of the key bright ideas — the (ongoing) manipulation of Cuban immigration as an example of how far it is from here to “normal.”
Creating the exile pool
Normalisation has so far not included an end to the Cuban Adjustment Act, which encourages Cubans to become undocumented aliens. Mexicans are told to stay home or “get in line” for a green card, but Cubans who reach US shores can be fast-tracked to citizenship.
The approach to Cuban immigration after 1959 oscillated between a desire to encourage it for propaganda advantage and a concern that Fidel Castro might oblige by releasing an unmanageable torrent. A manageable number could give propagandists the chance to picture every Cuban who left by whatever means, including rafts, as a political refugee from communist tyranny. Too many could strain public services wherever the Cubans landed, create social friction and cost the taxpayers a lot of money. Jesús Arboleya Cervera has written that:
“…immigration was intimately related to the policies conducted by the United States against the island, conceived to drain Cuba of its human capital, dismantle the social structure, and create abroad the social bases for a counter-revolutionary movement that had no cohesion inside the island.”
The just-right balance of regulations could achieve all this. To make it work, Cubans immigrating illegally were placed in a newly invented category exempt from the normal rules. They were initially welcomed under a special resettlement program and helped through the Migration and Refugee Assistance Act of 1962. However, President John F Kennedy ruined the just-right balance by suspending regular flights between Cuba and the United States later that year increasing internal pressures in Cuba. This situation created an incentive for illegal emigration, which reached its highest levels when upwards of 30,000 people emigrated that way between 1962 and 1965. In February 1963, the US government announced that any Cubans who managed to get to the United States would be granted refugee status.
Kennedy’s action was an early example of how one immigration policy decision forced the invention of another to deal with the consequences of the first. By blocking safe exit from Cuba, Kennedy provoked the first of the great immigration crises.
Reacting to the immigration pressure built up by suspending the flights, Castro opened the port of Camarioca in September 1965, inviting Cubans in Miami to go there and pick up their relatives.
President Lyndon Johnson at first welcomed the immigrants and framed the Camarioca exodus as a public relations gain for the United States. But as the numbers threatened to overwhelm Florida’s ability to absorb them, Johnson sought an accommodation with Cuba through a Memorandum of Understanding, which was signed on 6 December 1965. This new fix allowed a specific number of Cubans to emigrate on renewed flights to the United States. The Johnson administration called them Freedom Flights and presented them as a victory for the United States. It could just as well be considered a victory for Castro as Johnson was forced to reverse Kennedy’s actions in stopping the flights and to re-think how the immigration weapon was to be used. Castro reset the balance for Johnson. The flights continued until 1973.
But what to do with the Cuban immigrants? Before 1966, they were admitted on a temporary humanitarian basis because it was assumed in Washington, DC that the revolutionaries would soon be overthrown obviating the need for a permanent solution. There was no special legislation to regularise Cubans illegally arriving under the ad hoc systems then in place. Congress attempted to rectify that with passage of the Cuban Adjustment Act on 2 November 1966.
The legislation was supposed to bring order to the process. It applied only to Cubans who had lived in the United States for a least one year and who met the requirements for legal residency. New arrivals would be admitted if they could show they were in danger of persecution if they were repatriated — the standard UN criterion for granting political asylum. Cubans so admitted were granted resident status after one year in the United States regardless of how they got here; all that was necessary was to touch US soil. Most politicised Cubans in the United States were not pleased by the change, for it implied that there would be no roll back of the revolution and that the US government wanted the Cuban immigrants to become Americanised. In fact, the intention was to resettle them away from south Florida.
Thus, the Cuban Adjustment Act encouraged limitless immigration, which the immigration system was ill equipped to handle. The process of determining who qualified as a refugee quickly collapsed into a policy of wholesale admission, the issuance of work permits, financial assistance and other benefits plus a fast track to permanent residency. To avoid the time-consuming process of case-by-case determination of refugee status, the Immigration and Naturalisation Service (since 2003, the United States Citizenship and Immigration Service, USCIS) issued paroles, by which new arrivals were released (paroled) to friends or relatives.
The parole, which figured in the infamous Elián González case some years later, short-circuited the process of administratively determining eligibility, serving a policy function for which it was not intended. Parole was not supposed to be used for groups of individuals. It was designed to ensure that an alien experiencing an emergency could tend to that emergency while remaining free from detention. Eventually, parole was used to facilitate the processing of an entire population of otherwise excludable aliens who were considered by the government to be desirable immigrants.
In short, the special legal protections given indiscriminately to Cuban immigrants is not based solely on the Cuban Adjustment Act but also on the blanket designation of “political refugee” granted to any person who came from Cuba.
On 17 March 1980, President Jimmy Carter signed the Refugee Act, which was supposed to rationalise the immigration process eliminating the parole shortcut and requiring a specific determination of eligibility for political asylum by applying the criterion of a “well-founded fear of persecution” if repatriated. The Act was not specifically intended for Cubans, but a new mass exodus erupted that again demonstrated the inadequacy of legislative tinkering to solve problems created by the counterrevolutionary policies against Cuba.
The 1980 mass exodus from Cuba took place after the Carter administration and Cuba had agreed to allow Cubans in the United States to visit the island and take gifts with them for friends and relatives. Massive amounts of consumer goods entered the island for the first time since the early years of the revolution. Since these visitors were mostly urban white Cubans, the gifts went to their urban white friends and relatives in Cuba. Non-white Cubans did not benefit because at that time very few exiles were non-white. Poor urban Cubans, consequently, will become economic immigrants, using the 1966 US policy of easy entry into the United States to gain access to the consumer market.
The Mariel crisis of 1980 was precipitated when a busload of Cubans wishing to emigrate crashed through the gate of the Peruvian Embassy in Havana on 1 April. They, and later thousands of others, sought political asylum at the embassy. On 20 April Castro announced that anyone wishing to leave could depart Cuba from the port of Mariel. His decision would later be interpreted in the United States as “unleashing” a mass exodus. But Castro later said he allowed the exodus to deprive Carter’s right-wing opposition with an election-year issue.
Trapped by a system that could encourage but not control Cuban immigration, Carter announced that he welcomed the immigrants — a decision that ran counter to the attempt just days earlier to put some order into processing them through the Refugee Act. However, this was election time and, like Johnson before him, Carter saw an opportunity to portray the new immigrant wave as proof of Castro’s failures; he welcomed the marielitos “with open arms.”
By announcing that private vessels from Florida could go to Mariel and pick up the self-defined refugees, Carter ensured that he would lose control. A massive, disorderly boatlift followed, overloading the cumbersome interview system necessary to determine well-founded fear of persecution. Consequently, once landed in Florida, the Mariel Cubans were shunted past the Refugee Act and placed in a newly invented status of “entrant.”
By early September, Castro moved to rescue Carter and help his re-election by controlling the boatlift crisis and detaining airplane hijackers landing in Cuba from the United States. He also announced that from 25 September 25 to 4 November — Election Day in the United States — all Mariel traffic would be suspended.
In October, with south Florida’s social services overwhelmed, Carter reversed his refugee policy a second time by ordering a halt to the boatlift that recently had seemed like such a good idea. He now threatened with fines anyone setting out from Florida for Mariel — the same people he had encouraged to go there. He experimented with various methods to gain control of the inflow and the problem of holding thousands of Cubans in detention centres.
The mess took years to clean up. Indefinite detention of large numbers of marielitos settled in as an addendum to the old policy. Undesirables were kept locked up indefinitely without criminal charges. Riots in detention centres and federal prisons became a regular occurrence. Twenty-five years later there were still 750 Mariel-era Cubans living in detention centres with entrant status. The Supreme Court finally ruled against open-ended detention in 2005.
1984: Reagan avoids a crisis
In December 1984, the Reagan administration reached an agreement with Cuba that allowed the United States to send back 2,700 marielitos deemed ineligible for residency due to mental health problems, previous criminal records in Cuba or crimes committed while in the United States. As late as 2009, Cubans on a 1984 secret list of undesirables considered excludable were being deported to Cuba after spending decades in the United States. Cuba was the final destination for many “refugees” and “entrants” once welcomed “with open arms.”
Under a 1984 pact, the United States agreed to resume issuing up to 20,000 visas per year, which it had suspended because of Cuba’s earlier refusal to take back any marielitos – the people welcomed “with open arms.” Castro always maintained that the United States never consistently complied with the agreement.
Until the current Obama opening, the United States has always refused to negotiate a return to normal relations unless Cuba first makes concessions. Helping Reagan get off the hook for Jimmy Carter’s Mariel folly is never counted as a concession from Castro.
1994: The Clinton Immigration Crisis
For Clinton, the lesson of Mariel was not to review a flawed policy but to avoid falling into an immigration trap as Carter had and ending up with thousands of unwanted Cubans stuffed away in detention centres with the bogus migratory status of “entrant.” While Clinton was governor of Arkansas, he struggled with Carter over troubles at the Fort Chaffee detention centre in 1980. On two occasions, Cubans stormed out of the army base unhindered. The base commander told Clinton that because of the posse comitatus law, the military could not perform police functions. Clinton later complained in his memoirs that Carter told the commander he couldn’t keep them at the fort against their will.
In the second breakout, a thousand Cubans left the base on 1 June and headed to a nearby town where locals were in a panic and ready with their shotguns to repel them. Unable to get help from the White House or the Pentagon, Clinton ordered state police to block the advancing Cubans by firing shots in the air. Sixty-two people were injured and three buildings at Fort Chaffee were destroyed. This might be considered the only known hostile incursion by Cubans on American soil. In his memoirs, Clinton blamed Castro for his re-election defeat.
Clinton’s turn came in the summer of 1994 during a rash of hijackings to the United States — some of them violent. US officials were unwilling to acknowledge the link between incentives to immigrate and Cuban hijacking, but the practice became institutionalised as part of the undergrowth of an unofficial policy apparatus.
For a considerable period, at least in the state of Florida, air piracy ceased to be an actionable offence. In 1992, for example, Cuban airline pilot Carlos Cancio Porcel and several other people with their families diverted his Aero Caribbean plane to Miami, chloroforming a security guard and tying up the co-pilot. “No crime has been committed here,” his lawyer said. Cancio was detained but released when the Justice Department ruled that his actions did not constitute a hijacking. Cancio was issued an immigration parole and released into the community.
On 5 August, a Radio Martí broadcast from the United States announced the imminent arrival of a ship from Miami that supposedly would take on people who wished to leave Cuba. When the vessel did not arrive, a crowd began rioting in Old Havana. Castro portrayed the riot as the result of a US policy to prevent legal immigration by issuing too few visas and simultaneously encouraging illegal immigration with such tactics as the Radio Martí broadcast. Castro warned that Cuba would not act as an auxiliary to the US Coast Guard. “We can no longer carry this burden or assume this responsibility, while they do nothing.”
In a television address on 24 August Castro said “If the United States does not take rapid and efficient measures to stop the incitement of illegal exits from the country, we will feel obliged to tell the Border Guard not to stop any vessel that wishes to leave Cuba.” Clinton’s answer was that there would be no change in US immigration policy. His chief of staff Leon Panetta said Cuba could not tell the United States what to do — implying that it would continue to encourage illegal immigration — and that the United States would not tolerate a repeat of the Mariel mass exodus. Panetta said Clinton might declare a naval blockade of Cuba if Castro did not control illegal emigration from the island.
While the White House was rededicating itself to the continued encouragement of immigration with the implied promise of immunity from prosecution for hijackers, Castro issued orders on 12 August that the Border Guard should be flexible with those wishing to leave except in cases of hijacking. Clinton was now sliding toward another migration crisis and another Carteresque disaster. But the White House had a plan. Operation Distant Shore involved actually arresting rafters trying to enter the country, detaining them on military bases outside of Florida and possibly declaring a naval blockade of Cuba.
When Clinton saw that the plan included the incarceration of rafters on military bases, he “went ballistic.” “Are you nuts? Do you think I am going to do [that] again?” he yelled. He opted instead for scrapping enforcement of some elements of the Cuban Adjustment Act, the most important change in Cuban immigration policy in 28 years.
On 19 August, Clinton ordered the Navy and Coast Guard to pick up rafters heading north and transfer them to camps at the Guantánamo Naval Base where thousands of Haitians similarly intercepted were being kept. (There never was a Haitian Adjustment Act.) Speaking at a White House news conference that day, Clinton said Castro caused the problem by encouraging Cubans “to take to the sea in unsafe vessels to escape their nation’s internal problems.” He called this an “attempt to dictate American immigration policy.”
Clinton’s welcome was not with open arms.
“Today, I have ordered that illegal refugees from Cuba will not be allowed to enter the United States. Refugees rescued at sea will be taken to our naval base at Guantánamo, while we explore the possibility of other safe havens within the region….The United States will detain, investigate, and, if necessary, prosecute Americans who take to the sea to pick up Cubans. Vessels used in such activities will be seized.”
Castro thought the order as insufficient to stop the continuing flow of rafters and asked again for negotiations on all outstanding issues. Clinton refused to do it openly but instead decided to coax Castro into secret negotiations by asking Mexican President Carlos Salinas de Gortari what he could do to move Castro to negotiate — to “check around.”
In the subsequent agreement brokered by Salinas, Cuba was expected to limit illegal emigration — another example of depending on Cuba’s good offices to slow the immigration that the Cuban Adjustment Act was designed to encourage. For its part, the United States agreed to issue up to 20,000 visas per year and to send any Cubans picked up at sea to the Guantánamo Bay Naval Base.
While this was supposed to be a disincentive to rafters, it was also a solution leading to a new problem. As the Guantánamo camps filled up with disgruntled would-be immigrants, something had to be done about rioting and overtaxed facilities. Furthermore, the camps represented a potential public relations disaster: the internees, who formerly were portrayed as refugees from Castro’s oppression, might now be seen as victims of US oppression.
A second set of migratory talks had to be called in May 1995 to mend some holes. The resulting agreement required the United States to take in 21,000 Cubans held at Guantánamo and to send future rafters back to Cuba, not to Guantánamo. The United States also agreed to prosecute or extradite hijackers.
This second migratory accord had its own problems. The United States now had to tone down its traditional claims that anyone sent back to Cuba would face prison, torture or death. After all, it was the United States sending them back, so the “well-founded fear of persecution” route to asylum was closed for mass migrations although it remained open in special cases.
Wet- foot, dry- foot
Some way had to be found simultaneously to accept a manageable number of immigrants to satisfy the needs of domestic politics while turning away the unwanted surplus. The solution was another immigration policy shift known as the wet-foot/dry-foot policy.
Not a part of the agreements, the formula enabled immigration officials to placate Miami exiles by continuing to admit Cubans who arrived onshore while living up to the agreement with Cuba to repatriate those picked up at sea. The accords marked an abrupt change in US immigration policy, ending the open immigration practices under the Cuban Adjustment Act, while leaving it battered but still in force.
Even after the Clinton administration formally ended open immigration, the new formula for admitting Cubans contributed to ambiguous and even capricious interpretations of how to receive Cubans arriving by hijack. Were hijackers who landed in Florida to be admitted as dry-foot immigrants or as air pirates?
One of the more bizarre examples of the tortuous interpretations of what constituted a safe, dry-foot arrival occurred in February 2003, when the armed crew of a Cuban Border Guard patrol boat went ashore in Key West after tying up at the Marriott resort marina. After some drinks and a phone call to local police, the crew was taken into custody and swiftly given asylum.
Two facts stand out about the incident: it happened while the Department of Homeland Security had put the United States on a heightened terror alert; and the armed men arrived on a boat — technically a war vessel — belonging to a government on the State Department’s list of state sponsors of terrorism.
In the end, the Clinton administration managed to mollify the exile community for the sin of repatriating wet-foots by applying more sanctions against Cuba, stepping up propaganda broadcasts and occasionally threatening a naval blockade against any future mass exodus. He had avoided the dreaded Carter syndrome, but by inventing the wet foot/dry foot rule, the administration kept intact the incitement to illegal and life-threatening immigration.
Clinton had solved the wrong problem. The Mariel catastrophe was a foretold outcome of bad policy from another era. Encouraging illegal immigration was always a risky way to undermine a foreign government.
Like Dracula, bad policies can live almost forever. This one was tethered to Eisenhower’s original belief that welcoming Cubans would undermine the revolutionary government. Conceptually weak, the policy was subject to every kind of current from Miami, Havana and Washington. No one in the Eisenhower administration apparently considered the distorting effect that a rapid build up of Cuban exiles in Florida would have on domestic politics or that the original bright idea could take on a life of its own that none of Ike’s successors could kill.
Today, if normal relations mean that the war against Cuba is over, then the United States will have to decide if it wants to jeopardise future negotiations by defending its Draculan policies.
Robert Sandels writes on Cuba and Mexico. Nelson P. Valdés is Emeritus Professor of Sociology, University of New Mexico. This article was first published in Counterpunch www.counterpunch.org.