Obama Administration Ends "Wet Foot, Dry Foot" Policy for Cubans

By Kausha Luna, January 13, 2017

Time after time the Obama administration had declared that it had no intentions of changing U.S. immigration policies towards Cubans. However, yesterday, President Obama announced the end of the "wet foot, dry foot" policy, and the lesser known Cuban Medical Professional Parole Program.

Both the U.S. and Cuba called the end of these policies an important step in normalizing bilateral relations. President Obama's statement briefly states the implications of the end of the wet foot, dry foot policy:

Effective immediately, Cuban nationals who attempt to enter the United States 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.

Meanwhile a joint statement between the U.S. and Cuba outlines six points of agreement, reached by the United States and Cuba:

  1. From the date of this Joint Statement, the United States of America, 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, shall receive back all Cuban nationals who after the signing of this Joint Statement are found by the competent authorities of the United States to have tried to irregularly enter or remain in that country in violation of United States law. The United States of America and the Republic of Cuba state their intention to promote changes in their respective migration laws to enable fully normalized migration relations to occur between the two countries.
  2. The United States of America and the Republic of Cuba shall apply their migration and asylum laws to nationals of the other Party avoiding selective (in other words, discriminatory) criteria and consistent with their international obligations.
  3. The United States of America shall continue ensuring legal migration from the Republic of Cuba with a minimum of 20,000 persons annually.
  4. The United States of America and the Republic of Cuba, determined to strongly discourage unlawful actions related to irregular migration, shall promote effective bilateral cooperation to prevent and prosecute alien smuggling and other crimes related to migration movements that threaten their national security, including the hijacking of aircraft and vessels.
  5. The Republic of Cuba shall accept that individuals included in the list of 2,746 to be returned in accordance with the Joint Communiqué of December 14, 1984, may be replaced by others and returned to Cuba, provided that they are Cuban nationals who departed for the United States of America via the Port of Mariel in 1980 and were found by the competent authorities of the United States to have tried to irregularly enter or remain in that country in violation of United States law. The Parties shall agree on the specific list of these individuals and the procedure for their return.
  6. The Republic of Cuba shall consider and decide on a case-by-case basis the return of other Cuban nationals presently in the United States of America who before the signing of this Joint Statement had been found by the competent authorities of the United States to have tried to irregularly enter or remain in that country in violation of United States law. The competent authorities of the United States shall focus on individuals whom the competent authorities have determined to be priorities for return.

Beyond these six conditions, the other migratory agreements previously reached by Cuba and the United States remain in full force and effect: the Joint Communiqués of December 14, 1984 and September 9, 1994, and the Joint Declaration of May 2, 1995.

This announcement is certainly a step in the right direction. At the very least, it sends a message that the golden ticket for Cubans has expired, and as a result there could be a decrease in Cubans making their way to United States. In FY 2016 the total number of visa-less Cuban arrivals by land or sea reached 53,416, according to Customs and Border Protection. The U.S. Department of Homeland Security cites a dramatic increase in visa-less Cuban arrivals as one of the factors contributing to the change in policy.

The end of the wet foot, dry foot policy may serve as a deterrent, but it is not a complete solution for the flow of Cuban arrivals. As the White House statement indicates, Cubans are now to be treated "the same way we treat migrants from other countries." Under the Obama administration, this treatment means a grant of parole into the country to those who claim a "credible fear" of persecution. The end of the wet foot, dry foot policy could lead smugglers to adjust strategies and train Cuban migrants to simply say "asylum" instead of the previous magic phrase "ajuste Cubano" (Cuban adjustment). However, this could take some time and a change in administration is only seven days away. Consequently, immediate parole into the country could end for asylum applicants if the Trump administration exercises its discretionary power and returns to the letter of the law, which stipulates that asylum applicants are to be held in detention pending a full review of their qualifications. But a stronger deterrent would be to stop asylum applicants at the border and redirect them to our consulates in Mexico, where they would submit their applications and wait for approval. This was the common practice prior to the 1996 immigration reforms.

Concerning the return of Cubans, the language of the joint statement is promising. Moving forward, Cuba has agreed to take back its citizens already in the United States. According to the Washington Post, "Cuba will allow any citizen who has been out of the country for up to four year to return. Previously, anyone who had been gone for more than two years was legally said to have emigrated." More lenient conditions for deportation gives room for the incoming administration and relevant immigration officials to use different measures to ensure that Cuba takes back its citizens, such as leveraging non-immigrant visas. According to U.S. Immigration and Customs Enforcement (ICE) records, there are approximately 35,000 Cubans (of whom 80 percent have at least one criminal conviction) who have been ordered deported, but who currently cannot be sent back to Cuba. Historically, repatriation agreements with Cuba have been very limited, with the island only accepting those who were identified in the 1984 agreement. But even in the case of the so-called Marielitos, who entered the United States in 1980 as part of a mass exodus, the joint statement seems to show some flexibility on behalf of the Cuban government. Therefore, there is some room for cautious optimism that progress can be made to rectify the outdated immigration policies towards Cuba.

It should be noted that the Cuban Adjustment Act is still in effect, and would require congressional action to repeal it. Ultimately, there are several questions that remain to be answered:

  1. How strong of a deterrent will the end of the wet foot, dry foot policy be? In terms of stopping the flow at the border, the change in policy is already having an effect. Cubans at the Laredo, TX port of entry were not allowed to cross the bridge onto the U.S. side and directed back to Mexico and instructed to return the next day if they wanted to make an asylum claim.
  2. How quickly will the administration take additional action to deter future Cuban flows?
  3. What measures can and will be taken to ensure Cuba adheres to repatriation agreements?
  4. How will the annual 20,000 floor for Cuban immigrants be addressed, taking into consideration that in FY 2014 alone 46,679 Cubans obtained Lawful Permanent Resident (LPR) status?