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FocusOn Cubanear

By Vienna Flores, Law and Business Review of the Americas

“DEPORTATION, Deportation, Deportation!” These three words seem to encompass America’s approach towards immigrants. Yet Cuban immigrants are treated differently. For almost fifty years, the turbulent political relationship between the United States and Cuba provided relaxed immigration policies for Cubans sailing away from communism. Cubans risked their lives to cross the tumultuous sea and reach the shores of a better tomorrow. But with recent discussions of improved relations between the neighboring countries, the tides are changing.

This report analyzes whether the effects of improved relations between the United States and Cuba will affect favorable Cuban immigration laws. Section one analyzes the history of the Cuban embargo. Section two discusses the history of the Cuban Adjustment Act and U.S. immigration laws. Section three focuses on the revival of economic ties with Cuba by the Obama Administration. Finally, section four deliberates the effects of lifting the Cuban embargo on the Cuban Adjustment Act.

I. THE HISTORY OF THE CUBAN EMBARGO

Bitter disagreements between the United States and Cuba have caused a long-held political grudge that has excluded Cuba from the rest of the world for more than fifty years.* 1 This state of rancor, however, would have been unexpected a century ago. After its bitter defeat in the Spanish-American War in 1898, Spain renounced its rights to Cuba, Puerto Rico, and Guam, among others, and granted the lands to the United States.2 Cuba’s elusive independence came shortly thereafter. Despite that independence, the United States maintained the right to involve itself in Cuban affairs and continued to station troops in the country.3 The Platt Amendment of 1903 furthered U.S. involvement in Cuba by also “permitt[ing] the United States to lease or buy lands for the purpose of . . . establishing naval bases. . . and coaling stations in Cuba.”4 The United States wanted to remain connected with Cuba to promote “a government adequate for the protection of life, property, and individual liberty.”5 Nevertheless, Franklin D. Roosevelt repealed the act in 1934.6

Then came the Cuban Revolution, led by a young, politically-charged man named Fidel Castro.7 Castro initiated the Revolution after the then President, General Fulgencio Batista, overthrew the standing government and cancelled political elections in 1952, elections in which Castro intended to participate.8 Angry about the state of the government, Castro and his brother, Raúl, tried to create an uprising, failed, and landed in prison.9 Castro was released from prison in 1955.10 He then fled to Mexico to plan his next move with the help of a young Marxist named Ernesto ‘Che’ Guevara.* 11 In 1956, Castro, prepared for vengeance, began his attacks against Batista.12 Meanwhile, the United States imposed an “arms embargo against Batista’s government,” indicating support for Castro’s movement.13 Castro finally overthrew Batista and became Cuba’s leader late in December of 1958.14 The country hailed Castro as a hero15 and the United States “immediately recognized the new regime.”16

But the United States’ embrace was not long-lived. By 1960, Castro’s communism swept the country when he took all private land and companies and placed a heavy tax on U.S. products.17 Castro completely opposed American interference in Cuban affairs and had no reservations about sharing that opinion.18 In 1961, President Dwight D. Eisenhower issued a “unilateral embargo on all exports to Cuba.”19 Castro responded by executing favorable trade laws with the Soviet Union, which the United States saw as absolute betrayal and the final straw.20 On February 7, 1962, President John F. Kennedy issued the now infamous Cuban Embargo that economically and diplomatically isolated Cuba.21

President Kennedy’s proclamation urged that Cuba’s alignment with Soviet Communism and “the present Government of Cuba [was] incompatible with the principles and objectives of the Inter-American system.”22 Under the Foreign Assistance Act of 1961,23 President Kennedy instituted the embargo against “importation into the United States of all goods of Cuban origin and all goods imported from or through Cuba,” and all exports.24 The embargo also severed any existing ties between the United States and Cuba.25 This marked the beginning of bitterness and countless grim occasions between two neighboring countries.26

II. THE CURRENT STATE OF IMMIGRATION LAW

The embargo caused food shortages and increased poverty to sweep through Cuba.27 Because of the enduring problems, the United States gave Cubans the opportunity to escape the Communist regime by legally fleeing to America.28 U.S. Citizenship and Immigration Services provided refugee or asylum status when a person had been “persecuted or fear[ed] they [would] be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion.”29 Refugees are people who are outside of their country and do not return due to fear of impending harm.30 By contrast, asylees are those who qualify as refugees, but are already in the United States.31 The privilege of lawful Cuban immigration to the United States has persisted since November 2, 1966, because of the Cuban Adjustment Act (CAA).32 “Cubans are the only nationality to which Congress has awarded this special treatment.”33 The CAA provided that

any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to January 1, 1959 and has been physically present in the United States for at least two years, may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if the alien makes an application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence.34

The act was later amended to allow adjustment of permanent status after one year and one day of presence in the United States.35 The CAA also applies to the spouse and child of a Cuban refugee, regardless of their place of birth or nationality.36 Persons fleeing Cuba are “presumed to be refugees under international law,” which Congress used to justify the CAA.37 There was no limit to the number of people granted refugee or asylee status in the beginning.38

The Cold War’s end caused turbulent economic times that pounded Cuba in the 1980s, causing more Cubans to seek political asylum in foreign countries, including the United States.39 Castro allowed Cubans to travel to the United States on boats from the Mariel Port if they were unhappy and wanted to leave.40 But Castro also maliciously sent criminals and mental hospital patients to Florida coasts, and then refused to take them back.41 The “Mariel Boatlift” led to an estimated 125,000 undocumented immigrants entering the United States.42 With that surge of Cuban immigration in mind, the United States set boundaries and worked with Cuba to promote “safe, legal, and orderly immigration.”43

At the time, President Bill Clinton claimed that “[t]he Cuban Government [would] not succeed in any attempt to dictate American immigra-. tion policy.”44 Clinton’s stance came to be known as the “wet-foot, dryfoot” policy, in which Cubans found at sea would not be granted asylum or refugee status.45 Instead, they would be taken to Guantanamo Bay or returned to Cuba without ever having the opportunity to gain legal immigration status in the United States.46 This changed the previously enthusiastic outlook of Cuban immigration but continued to help those who reached the United States without interception by the U.S. Coast Guard.47 It also limited the number of visas provided for Cubans to 20,000 per year.48

III. A CHANGING TIDE

After the embargo was executed, the United States continued to enact legislation to advance its plan of politically isolating Cuba. The Cuban Democracy Act of 1992 encouraged the President to advise other countries trading with Cuba to sever their ties.49 All countries failing to follow the United States’ advice would be subject to sanctions.50 The Cuban Democracy Act’s projection of U.S. power was polemic and denounced by the United Nations multiple times as an impermissible extraterritorial extension of U.S. jurisdiction.51 Nonetheless, the United States strengthened its boycott once again in 1996, after Cuba shot down two U.S. civilian planes, through The Cuban Liberty and Democratic Solidarity Act, also known as the Helms-Burton Act.52 The act provided that any foreign countries continuing trade with Cuba would also have an embargo enforced against them.53

But finally, after a devastating hurricane in 2001, the United States graciously decided to help Cuba by allowing American companies to sell food to the country.54 It was the first positive gesture between the two countries in many years. In December of 2014, President Obama “ordered the restoration of full diplomatic relations with Cuba and the opening of an embassy in Havana for the first time in more than a half-century as he vowed to ‘cut loose the shackles of the past’ and sweep aside one of the last vestiges of the Cold War.”55 On January 16, 2015, the Expert Administration Regulations was amended to “authorize the export and re-export of certain items to Cuba that [were] intended to improve the living conditions of the Cuban people; support independent economic activity and strengthen civil society in Cuba; and improve the free flow of information to, from, and among, the Cuban people.”56 The adjustments were meant to help improve Cuba’s communication with the rest of the word by allowing for the commercial sale of software, hardware, and other devices.57

The Department of Treasury amended the Cuban Assets Control Regulation policy to “facilitate travel” between the United States and Cuba by authorizing airlines to fly to Cuba.58 Additionally, U.S. financial institutions are now allowed to open accounts in Cuba and individuals are allowed to send more money to family members there.59 On May 29, 2015, the United States removed Cuba from its terror list.60 Just a month later, the United States and Cuba announced that they would restore diplomatic ties and reopen their respective embassies.61

Regardless of the advances, however, eradicating the entire embargo will be difficult. The United Nations has attempted to condemn the U.S. embargo for twenty-two years without any success.62 Lifting the embargo requires the approval of not only Congress, but the president as well.63 In any event, the many laws affecting Cuba-especially those that address accessible Cuban immigration policy-will be the source of much political debate in the upcoming months.

IV. IMPACT ON THE CUBAN ADJUSTMENT ACT

The mere mention of immigration sows discord. This negative stigma has put immigration reform on every political agenda. Yet resolution seems elusive. The same holds true for the CAA, especially given recent talks of restoring relations with Cuba.64 The United States’ relationship with Cuba improves daily, which undoubtedly means that the current immigration policies are subject to change. It also suggests that the once favorable act may be terminated forever. Congress had an initial goal with the CAA: to free Cuba “from Communist domination [so] that Cuban people [would], again, be able to enjoy the benefits of freedom.”65 The CAA continues to encourage Cubans to flee oppression. As of 2013, the Pew Research Center reported that there were 1,889,000 Cubans in the United States.66

With the immense amounts of Cuban immigrants traversing dangerous seas to reach a safe haven, the United States adopted the strict immigration regulations mentioned above. The Cuban Adjustment Act was amended in 1996 to include a provision that the law would be “repealed” once Cuba had “a democratically elected government” in power.67 Although this has yet to happen, politicians have not wasted any time arguing against the act. With the progress between the two countries, it appears likely that the CAA will change in the upcoming years. Politicians now believe Cuban immigrants will abuse the system by traveling to the United States and merely claiming persecution, and then staying for a year and a day to gain legal status before returning to Cuba.68

Moreover, most Cubans still come to the United States “seeking better economic conditions” instead of “fleeing political persecution” as required for asylum.69 The newly amended laws will exacerbate this problem because travel between the two countries will grant Cubans easier access to the United States and increase the number of immigrants seeking refugee status.70 With increased immigration concerns, many argue that the CAA unjustly favors Cubans over other immigrants71 and that the policy should be eradicated “to foster safe and orderly migration and to save lives.”72 But it would take congressional power to repeal the longstanding law.73

President Obama announced that there would no change to immigration policy.74 But if there were to be a change, the number of undocumented immigrants would spike. The current act requires Cubans to wait a year and a day before applying for legal status.75 A sort of immigration limbo exists until then. When a Cuban first arrives in the United States they are paroled into the country.76 Parole allows a person to enter the country for a specific reason, including “urgent humanitarian reasons,” and considers the person an inadmissible non-citizen.77 If the act were repealed, many paroled Cubans would be unable to apply for lawful residence and, in turn, would remain in the country as undocumented immigrants unless they were grandfathered in. Improved diplomatic relations lessen any chance for recognition of a “humanitarian crisis” that would allow Cubans to realize refugee or asylum status.78

But what if restoring the relationship between the two countries does not improve conditions in Cuba? America believed in fostering Cuban immigrants because communism was politically oppressive-a view antithetical to the United States’ continued business with and support of other communist countries.79 Even if Cuba does not become a democratic country, the United States will surely change its immigration policies soon.

NiLP Note: With anti-immigrant fervor at a high point in the country, we keep getting asked about the status of the Cuban Adjustment Act and whether it is also being criticized or not. There is some resentment that Cubans occupy a privelged position among immigrants as a holdover of Cold War politics and whether it is about time that this Act should be ended. This, however, is doubtful under a Trump Administration. So we thought you would find the article below outlinng this issues involved helpful.  —Angelo Falcón  

Your Editor Proclaims: If the Obama decision to “go home” is good for Cunbans, non-Cubans and especially Latin Americans, let’s give it a chance. No instant gratification there. 

President Trump speaking about Cuba in Miami on Friday. Al Drago/The New York Times

Fans of Cuban rum and cigars can rest easy. So can the Starwood chain, which has a deal to manage a historic hotel in Havana. But Americans who want to vacation in Cuba or start doing business there will find it harder as a result of President Trump’s misguided decision to slam the brakes on a two-year-old diplomatic opening with the island.

Mr. Trump told a cheering crowd in Miami on Friday that his goal is to achieve a “free Cuba.” In truth, his new policy is just the latest chapter in a spiteful political crusade to overturn crucial elements of his predecessor’s legacy while genuflecting to Cuban-Americans in Miami’s exile community who helped put him in office.

By now, Mr. Trump has perfected the art not of the deal but of dismantling what went before. “I am canceling the last administration’s completely one-sided deal with Cuba,” he declared, an exaggeration in that he reversed only parts of it. But they were important parts, including relaxations on travel and commerce negotiated by President Barack Obama. The net result is that Cuban-American relations are likely to revert to a more adversarial Cold War footing, undermining Washington’s standing in Latin America.

Under the new policy, Americans may no longer plan their own private trips to Cuba, and those who travel with authorized education tours will be subject to new rules to ensure that they are not tourists. American companies and citizens will be barred from doing business with firms controlled by the Cuban military or its intelligence services, thus denying Americans access to critical parts of the Cuban economy, including much of the tourism sector.

Mr. Trump’s policy rests on a cynical and historically bogus foundation. The aim, he says, is to force Cuban leaders to end repression, embrace democracy and open their economy. “We will not be silent in the face of Communist oppression any longer,” he said, adding that Mr. Obama’s brief détente has only empowered the Communist government and enriched the military. But 50 years of isolationist, hard-line sanctions never produced the ouster of Cuba’s Communist regime that anti-Castro activists had hoped for.

Mr. Trump’s sudden concern for human rights is particularly hard to swallow. No recent president has been so disdainful of these rights or embraced so lovingly authoritarians who abuse their people, like Vladimir Putin of Russia and the Saudi royal family.

And while Mr. Trump says he wants to deprive the Cuban state of income from American dollars, many Cubans say the real victims will be the entrepreneurs who have benefited from the thousands of American tourists who visited Cuba over the last two years. If Mr. Trump would open his mind to facts like these, instead of succumbing to the blandishments of cheering crowds and political sycophants, he would learn that three-quarters of all American adults favor Mr. Obama’s decision to re-establish ties with Cuba.

About the best that can be said is that his reversal is not as bad as it might have been. Embassies in Washington and Havana will stay open, direct flights between the two countries will continue, and Cuban-Americans will still be able to travel freely to Cuba and send money to relatives there.

That’s little comfort, given Mr. Trump’s harsh tone. The president leaves real questions about the future of bilateral agreements on health care cooperation, joint planning to mitigate oil spills, coordination on counternarcotics efforts and intelligence-sharing — and real questions about a truly productive relationship with an old adversary that Mr. Trump seems determined to turn into a new one.

Your Editor Reminds: After 100 years, Obama is the American who went Home. And we love him for it

Found in Moscow’s Flea Markets: Car Parts, Jeans and Bargain-Hunting Cubans

They fly 13 hours seeking items to sell in a Communist island still starved of consumer goods

By Anatoly Kurmanaev and Siranush Sharoyan, The Wall Street Journal

Sometimes the wheels of history turn slowly. The hottest shopping destination for Cubans is not across the water in Miami. It’s Moscow, 6,000 miles away.

Tougher U.S. border control and rising remittance income from relatives abroad have led to a recent surge of Cuban travel to Russia, the only major country that still doesn’t ask islanders for a visa. Cuban shoppers don’t take the daily 13-hour Aeroflot flight, a legacy of the Soviet-era alliance, to see the Kremlin or the Red Square. They bring back bags of jeans, haberdashery and car parts to a Communist island starved of consumer goods.

Cafe El Paladar Cubano at the Moskva flea market in Moscow.

“The Cubans are flooding in without speaking a word of Russian just to stock up,” said Ricardo Trieto, a Russian-educated Cuban engineer who now translates for compatriot shoppers in Moscow’s flea markets. “It’s very profitable: Whatever you buy here you can sell it for more at home.”

The U.S. trade embargo with Cuba remains in place despite the fact that President Barack Obama loosened restrictions for Americans to travel to Cuba last year and opened a U.S. Embassy in Havana in 2015 after more than half a century of severed ties. President Donald Trump has said he would roll back Mr. Obama’s Cuban initiatives. All of this has helped revive a very Cold War-sounding trading relationship between Russia and Cuba.

Consider the need for car parts in Cuba. Given the U.S. trade embargo, most cars in Cuba are either American-made cars from the 1950s or Soviet-era jalopies. The square-shaped models of Ladas and Nivas all but disappeared from Moscow’s streets years ago.

In Cuba, they are still going strong. Well, when they don’t break down and need new parts, the shortage of which can produce some spectacular profits.

In Moscow, a 1980 Moskvich—another boxy offering from the Soviet era— might fetch around $500. In embargoed Cuba, it can go for as much as $14,000, Cuban taxi drivers say, fueling a booming cottage industry specializing in cannibalized car parts for the Caribbean island.

At the sprawling Yuznii Port used-car market in southern Moscow, traders say up to 40% of the business comes from Cuban shoppers. “We would’ve gone broke without them,” said trader Timur Muradian.

On a gray winter morning, a dozen Cubans dressed in ill-fitting beanie hats and gray puffer jackets walked around the market’s metal containers filled with rusty car parts. Several extra layers of clothing and skin darker than most locals easily gave them away to traders, who wooed them with shouts of “hola, amigo.”

“I can buy anything I want here; it’s unbelievable,” said Alejandro, who flew from Havana for the first time to buy tractor parts.

Waving hands and typing into calculators with frozen fingers, the Cubans haggled over prices in the thousands of dollars for heaps of what most locals would consider useless scrap. “They buy up everything for Russian cars and tractors by weight, without even looking at what parts and models they are for,” said Mr. Muradian. “Whatever it is, they’ll be able to sell it at a profit at home.”

A typical group of Cubans spends $3,000 to $7,000 in the market, stall owners say. These are astronomical sums for residents of an island where the average wage is $25 a month.

Back in Cuba, whole villages chip in to send an envoy on shopping trips to Moscow, often using remittances from relatives in Miami or Madrid. Residents of the Rodas village in Cuba’s central sugar belt said their cane would rot in the fields without an annual trip to Moscow to buy parts for their 1970s Soviet tractors.

Some of the workers in this cottage trading industry are part of the tens of thousands of Cubans who went to the former Soviet Union as students. They studied engineering, medicine and science and returned to develop their Communist homeland. But when the Soviet Union and its subsidies collapsed in 1991, they often found themselves working as waiters and security guards for minimum wage.

Soviet-educated Cuban engineer Raul Curo came back to live in Russia several years ago. He bought a taxi and became part of Moscow’s booming Cuban expatriate community, servicing shoppers from the island. Mr. Curo meets Cubans in the airport and drives them around the city’s flea markets, helping to translate and haggle.

“Everyone loves Cubans here. It’s been like this since Khrushchev,” Mr. Curo said, referring to the Soviet leader who risked nuclear Armageddon by striking an alliance with Cuba in the 1960s and deploying missiles there.

During the low season, translator Mr. Trieto makes money giving Spanish lessons to Azerbaijani and Armenian stall owners in the city’s flea markets. Others make ends meet giving salsa lessons in Moscow night spots such as Old Havana.

Most Cuban shoppers come to Moscow for about a week and spend whole days trawling the city’s flea markets to collect the 260 pounds worth of goods they are allowed on the plane for a fee.

They borrow boots and parkas from friends and family and sleep on double-bunks in crammed Soviet-era apartments owned by Cuban expatriates. “I’ve never been this cold in my life, but I’m getting used to it,” said shopper Abelito. He said his first purchase was the warmest jacket he could find on the entire 150 acres of the Sadovod flea market.

At the entrance of Lyublino’s budget Moskva shopping center is a Cuban canteen adorned with pictures of the island’s lush rolling hills and a photo of President Vladimir Putin with the late Cuban leader Fidel Castro. The Cuban cook serves up cheap homemade dishes of rice, beans and shredded pork.

The shopping center offers a translation service and Cuban immigrants work in the center’s cheap jewelry stalls. An Azerbaijani stall owner haggled in broken Spanish with a group of Cubans over a stack of jeans on a recent visit.

“They basically live in the bazaar,” said taxi driver Mr. Curo of his compatriot shoppers. “They came, they bought up, and they left. In a couple of months, they are back.”

—Dmitry Filonov contributed to this article.

Write to Anatoly Kurmanaev at Anatoly.kurmanaev@wsj.com

Your Editor Marvels: Quien lo iba a decir???

By Patricia Mazzei, pmazzei@miamiherald.com

President Donald Trump will travel to Miami next Friday to announce his administration’s changes to U.S.-Cuba policy, a source with knowledge of the president’s plans told the Miami Herald.

The location for the event is still in the works. But scheduling the trip indicates the Cuba policy, which has been undergoing drafts for several weeks, will be imminently finalized. And deciding to unveil the policy in Miami suggests it will please the hardline Cuban exiles whose support Trump considered significant to winning Florida, and the presidency.

Vice President Mike Pence is also expected to attend. He will already be in town for a Central America conference to be held next Thursday and Friday at Florida International University and U.S. Southern Command. Three Cabinet secretaries — Rex Tillerson of State, John Kelly of Homeland Security and Steven Mnuchin of Treasury — will take part in the conference, but Tillerson plans to depart Thursday, and it’s not clear if Kelly and Mnuchin will take part in the Cuba policy event.

Several local venues have symbolism for Cuban Americans, including the Bay of Pigs Museum in Little Havana and the Freedom Tower in downtown Miami.

A mid-June Trump visit has been rumored since Memorial Day, when word of the Cuba policy rewrite began trickling from alarmed backers of former President Barack Obama’s reengagement approach toward the communist island. Trump is preparing to tighten at least some of Obama’s changes, including restricting business with the Cuban military and U.S. travel that resembles tourism.

Those type of revisions have been endorsed by Florida Sen. Marco Rubio and Miami Rep. Mario Diaz-Balart, the only two local GOP members of Congress who backed Trump and as a result have pressured his administration on the issue. Rubio in particular has been working closely with the White House and National Security Council on the upcoming changes.

“I am absolutely confident that the president is going to deliver on his word, on his commitments,” Diaz-Balart told the Miami Herald and el Nuevo Herald in a recent interview. “He was very clear that he thought that President Obama in essence got nothing in exchange for the concessions he gave to the Castro regime.”

Members of Congress who favor closer U.S.-Cuba ties have urged Trump to maintain Obama’s approach. On Thursday, seven Republican lawmakers from outside Florida whose districts see agricultural, industrial or commercial opportunities in Cuba wrote Trump to argue that keeping a foothold Cuba is important for U.S. national security. Three GOP senators with similar views made a similar plea to Tillerson and National Security Adviser Henry McMaster.

Two weeks before Election Day, Trump received an endorsement from the Brigade 2506 veterans at the Bay of Pigs Museum, a show of support that came after Trump had pledged at a local rally to “reverse” Obama’s Cuba policy. As president, Trump has privately brought up the Bay of Pigs Museum event to Florida Republicans as a key moment for his campaign, though his critics have disputed that the Cuban-American vote won Trump the presidency.

Your Editor Takes Sides: Contact and dialogue fosters understanding