Cuban Migration to the United States: Policy and Trends
Released: 2009-06-02T00:00:00

U.S. Policy Toward Cuban Migrants

A watershed in U.S. immigration policy toward Cuban migrants may be on the horizon as the Obama Administration and a bipartisan group of congressional leaders weigh prospects for more open economic and diplomatic relations with Cuba. A normalization of the immigration policy cast 50 years ago in response to the communist revolution in Cuba, however, is not imminent, nor is it likely to be easily achieved. This report opens with a historical analysis of the unique immigration policy that evolved with Cuba and an explanation of its nexus with other federal policies. It follows with time series analysis of Cuban migration trends. The report concludes by discussing current challenges and issues.

Evolution of the Policy

Cuba, as a communist state, has restricted many freedoms, including at various times the freedom to travel. As a result, normal immigration for Cubans has been elusive for approximately 50 years, and most Cubans have been admitted to the United States through special humanitarian provisions of the law. The first emigres who came in 1958 were, according to the history of the time, followers of General Fulgencio Batista, the dictator who had taken power in a 1952 military coup. When Fidel Castro defeated Batista and formally assumed power in Cuba in 1959, the exodus escalated, peaking at approximately 78,000 in 1962. In October of that year, Castro stopped regularly scheduled travel between the two countries, and the risky practice of asylum seekers setting sail from Cuba to Florida began.

Between 1962 and 1979, hundreds of thousands of Cubans entered the United States under the Attorney General's parole authority. In 1980, a mass migration of asylum seekers—known as the Mariel boatlift—brought approximately 125,000 Cubans (and 25,000 Haitians) to South Florida over a six-month period. Prompted by the costs that the Mariel boatlift incurred, Congress established the "Immigration Emergency Fund" in the1986 Immigration Reform and Control Act (IRCA) to provide federal aid to regions and communities facing more general health and safety problems due to overcrowded and unsuitable living conditions that arise when mass migration occurs. Congress also authorized that funds could be used for border enforcement costs associated with mass migration.

After declining for several years, Cuban "boat people" steadily rose from a few hundred in 1989 to a few thousand in 1993. After Castro made threatening speeches in 1994, riots ensued in Havana, and the Cuban exodus by boat escalated. The number of Cubans intercepted by the U.S. Coast Guard or the U.S. Border Patrol reached a post-Mariel high of almost 40,000 in 1994.

Until 1995, the United States generally had not repatriated Cubans (except certain criminal aliens on a negotiated list) under a policy established when the government became Communist within two years of the 1959 revolution. Not only has the United States been reluctant to repatriate people to a Communist country, but the Cuban government typically has also refused to accept Cuban migrants who are excludable under the Immigration and Nationality Act (INA). The key elements of current policy on Cuban immigration are the Cuban Adjustment Act of 1966, the Migration Agreements of 1994 and 1995, and the Special Cuban Migration Lottery.

Cuban Adjustment Act of 1966

Most of the undocumented Cubans who arrive in the United States are allowed to stay and adjust to permanent resident status under the Cuban Adjustment Act (CAA) of 1966 (P.L. 89-732). The CAA, as amended, provides that certain Cubans who have been physically present in the United States for at least one year may adjust to permanent resident status at the discretion of the Attorney General—an opportunity that no other group or nationality has. The alien must be eligible to receive an immigrant visa and be admissible to the United States as a legal permanent resident (LPR). Spouses and children accompanying the aliens who are applying for this adjustment are also covered by the CAA. Cubans apply to the U.S. Citizenship and Immigration Services (USCIS) in the Department of Homeland Security (DHS) to adjust as LPRs.

The CAA predates the Refugee Act of 1980, the law that incorporates refugee and asylum principles into the INA. The legislative debate leading up to its enactment makes clear that persons fleeing Cuba are presumed to be refugees under international law, but the CAA does not use the language or definitions commonly used for refugee and asylee. Legislative efforts to "sunset" the CAA or repeal it outright have not been successful; however, in 1996 Congress enacted language stipulating that the CAA would be repealed when Cuba became a democracy.

Cuban Migration Agreement, September 1994

"Normalizing" migration between the two nations was the stated purpose of the migration agreement signed on September 9, 1994, when the status quo of U.S. policy toward Cuban migrants was altered significantly. The plan's objectives of safe, legal, and orderly immigration relied on six points.

The United States agreed to no longer permit Cubans intercepted at sea to come to the United States; rather, Cubans would be placed in a safe haven camp in a third location. Justifying this policy as a "safety of life at sea" issue, Cuba also agreed to use "persuasive methods" to discourage people from setting sail. United States and Cuba reaffirmed their support for the United Nations General Assembly resolution on alien smuggling. They pledged to cooperate in the prevention of the illegal transport of migrants and the use of violence or "forcible divergence" to reach the United States. The United States agreed to admit no less than 20,000 immigrants from Cuba annually, not including the immediate relatives of U.S. citizens. The United States and Cuba agreed to cooperate on the voluntary return of Cubans who arrived in the United States or were intercepted at sea. The United States and Cuba did not reach an agreement on how to handle Cubans who are excludable under the INA, but they did agree to continue discussing the matter. The United States and Cuba agreed to review the implementation of this agreement and engage in further discussions.

It became apparent that the 20,000 minimum level per year could not be met through the INA preference system or the refugee provisions because of the eligibility criteria. In other words, few Cubans qualified for visas as family-sponsored immigrants, including immediate relatives of U.S. citizens, or as employment-based immigrants (e.g., persons of extraordinary ability, members of the professions, or skilled shortage workers). In addition to those Cubans who may qualify to immigrate through the INA preference system and who may qualify as refugees, the United States decided to use other authority in the law (i.e., parole) to allow Cubans to come to the United States and become LPRs through the CAA. As specifically discussed below, a "visa lottery" program was established to randomly select who, among the many Cubans seeking to migrate, receives a visa.

Cuban Migration Agreement, May 1995

On May 2, 1995, the Clinton administration announced a further agreement with Cuba that resolved the dilemma of the approximately 33,000 Cubans then encamped at Guantanamo. This new agreement, which came at the time of year when boat people traditionally begin their journeys, had two new points. Foremost, the United States allowed most of the Cubans detained at Guantanamo to come to the United States through the humanitarian parole provisions of the INA. Cuba agreed to credit these admissions toward the minimum 20,000 LPRs per year from Cuba, with 5,000 charged annually over three years. Secondly, rather than placing Cubans intercepted at sea in safe haven camps, the United States began repatriating them to Cuba. Both parties promised to act in a manner consistent with international obligations and to ensure that no action is taken against those repatriated. U.S. officials would inform repatriated Cubans about procedures to legally immigrate at the U.S. Interests Section in Havana. Those charged with alien smuggling, however, would face prison terms in Cuba.

Interdicted Cubans are given an opportunity to express a fear of persecution if returned to Cuba. Those who meet the definition of a refugee or asylee are resettled in a third country. From May 1995 through July 2003, about 170 Cuban refugees were resettled in 11 different countries, including Spain, Venezuela, Australia, and Nicaragua. The Department of State (DOS) is required to monitor whether those migrants who are returned to Cuba are subject to reprisals. In May 2004, DOS noted that it had been unable to monitor returnees outside Havana since March 2003.

As a result of this agreement, migration talks between the United States and Cuba are supposed to occur twice yearly. No migration talks have been held since January 2004, however, because DOS cancelled them due to Cuba's refusal to discuss the following key issues: Cuba's issuance of exit permits for all qualified migrants; Cuba's cooperation in holding a new registration for an immigrant lottery; the need for a deeper Cuban port utilized by the U.S. Coast Guard for the repatriation of Cubans interdicted at sea; Cuba's responsibility to permit U.S. diplomats to travel to monitor returned migrants; and Cuba's obligation to accept the return of Cuban nationals determined to be excludable from the United States.

As a consequence of the migration agreements and interdiction policy, a "wet foot/dry foot" practice toward Cuban migrants has evolved. Put simply, Cubans who do not reach the shore (i.e., dry land), are returned to Cuba unless they cite fears of persecution. Those Cubans who successfully reach the shore are inspected by DHS and generally permitted to stay in the United States and adjust under CAA the following year.

Special Cuban Migration Lottery

Since the 1994 migration agreement, the United States has conducted three visa lottery open seasons to implement the Special Cuban Migration Program. The three open seasons were at two-year intervals: FY1994, FY1996, and FY1998. The number of qualifying registrants increased each year, from 189,000 in 1994 to 433,00 in 1996 and to 541,00 in 1998. Cubans qualifying through the 1998 lottery continue to be paroled into the United States.

Eligible registrants must be Cuban citizens between 18 and 55 years of age. They also must be able to answer "yes" to two of the following three questions. Have you completed secondary school or a higher level of education? Do you have at least three years of work experience? Do you have any relatives residing in the United States? Once selected through the lottery, the successful applicants are given parole status with a visa that is good for six months. The medical examination, required of all potential immigrants, is good for one year. Spouses and minor children may accompany the successful registrants. Over the years, there have been reports of barriers the potential Cuban parolees face, such as exorbitantly priced medical exams, exit visa fees, and repercussions for family members who remain in Cuba.

Federal Assistance to Cuban Migrants

Cubans are among the subset of foreign nationals who are eligible for federal benefits and cash assistance. Over a decade ago, Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 ( P.L. 104-193 ) established comprehensive restrictions on the eligibility of noncitizens for means-tested public assistance and limited the eligibility of refugees and asylees to five years. Aliens who enter the United States without authorization are barred from any federal public benefit except the emergency services and programs expressly listed in PRWORA. Amendments in P.L. 105-33 and P.L. 105-185 extended the period of food stamp/Supplemental Security Income (SSI)/Medicaid (but not Temporary Assistance for Needy Families) eligibility for refugees and asylees from five to seven years and added Cuban and Haitian Entrants to those eligible for these benefits for seven years.

Cuban-Haitian Entrants

The term "Cuban-Haitian Entrant" is not defined in the INA, but its usage dates back to 1980. Many of the Cubans and the vast majority of the Haitians who arrived in South Florida during the 1980 Mariel Boatlift did not qualify for asylum according to the individualized definition of persecution in §§ 207-208 of the INA. The Carter Administration labeled Cubans and Haitians as "Cuban-Haitian Entrants" and used the discretionary parole authority of the Attorney General to admit them to the United States. Subsequently, an adjustment of status provision was included in the Immigration Reform and Control Act (IRCA) of 1986 ( P.L. 99-603 ) that enabled the Cuban-Haitian Entrants who had arrived during the Mariel Boatlift to become LPRs.

While not a term of law in the INA, Congress did define Cuban-Haitian Entrant in the context of eligibility for federal assistance. Title V of the Refugee Education Assistance Act of 1980 ( P.L. 96-422 ), commonly known as Fascell-Stone, defined Cuban and Haitian Entrants as

(1) any individual granted parole status as a Cuban/Haitian Entrant (Status Pending) or granted any other special status subsequently established under the immigration laws for nationals of Cuba or Haiti, regardless of the status of the individual at the time assistance or services are provided; and

(A) who—(i) was paroled into the United States and has not acquired any other status under the Immigration and Nationality Act [this chapter]; (ii) is the subject of removal proceedings under the Immigration and Nationality Act [this chapter]; or (iii) has an application for asylum pending with the Immigration and Naturalization Service; and

(B) with respect to whom a final, nonappealable, and legally enforceable order of removal has not been entered.

The intent and resulting effect of the Fascell-Stone provision was to treat Cubans and Haitians in the same manner as refugees and asylees for the purposes of the federal refugee resettlement program and most other federal benefits and assistance. The Office of Refugee Resettlement (ORR) uses the term "Cuban-Haitian Entrants" for Cubans who meet the Fascell-Stone definition.

Major Federal Benefit Programs

Supplemental Security Income (SSI)

Under current law, asylees, refugees, and Cuban-Haitian entrants (as well as certain aliens whose deportation/removal is being withheld for humanitarian reasons and Vietnam-born Amerasians fathered by U.S. citizens) are among categories of aliens who may be eligible for SSI for seven years after entry/grant of such status. In order to receive SSI benefits, these qualified aliens must meet all the requirements for eligibility as native-born citizens. SSI eligibility requirements include meeting the definitions for age, disability, or blindness and falling below established income and resource thresholds. In 2008, individual SSI beneficiaries could have received up to the maximum federal benefit rate of $637 a month, and married couples received up to $956. Cuban entrants, like other qualified aliens, are ineligible after seven years unless naturalized or if in receipt of SSI benefits as of August 22, 1996. This SSI eligibility for Cuban entrants as well as refugees, asylees, and aliens in other specified humanitarian categories was extended to nine years (during FY2009 through FY2011) by P.L. 110-328 . If qualified aliens are eligible for SSI, they are likely to be eligible for enrollment in their state's Medicaid Program.

Temporary Assistance for Needy Families (TANF)

Cuban Entrants are treated as refugees, and thus those families with children under 18 may be eligible for time-limited cash assistance through a state's Temporary Assistance for Needy Families (TANF) program. The Personal Responsibility Act of 1996 restricts receipt of federal TANF benefits to a 60-month lifetime limit. States may exempt up to 20% of the caseload from the time limit because of state-defined hardship, and states have the option to continue TANF benefits under special circumstances. Like other federal welfare programs, the TANF program is means-tested; however, unlike SSI, the TANF program is state-administered, and payment levels can vary widely by state. In 2008, the average monthly maximum benefit level for a family of three in the median state was $389, with a range from $923 in Alaska to $170 in Mississippi. Refugees and entrants participating in job training programs sponsored by the Office of Refugee Resettlement (ORR) are considered to be working toward self-sufficiency and may be exempt from certain state TANF program requirements. TANF beneficiaries may be eligible for their state's Medicaid program; however, SSI beneficiaries are generally ineligible to receive TANF in addition to SSI.

Refugee Resettlement Assistance28

As noted above, Cuban entrants are eligible for the federal resettlement assistance program for refugees and entrants, which is partially funded through the ORR. In addition to providing a range of social services, primarily administered by states, the ORR provides funding to states for transitional cash and medical assistance through the Transition and Medical Services program. ORR resettlement assistance and services are designed to help refugees and entrants obtain self-sufficiency and social adjustment as quickly as possible. Refugees and entrants are expected to become self-sufficient within six months of arrival, and Refugee Cash Assistance (RCA) and Refugee Medical Assistance (RMA) are limited to eight months.

Refugees and entrants who meet the income and resource eligibility requirements for SSI, TANF, or Medicaid, but are not otherwise eligible (e.g., single males or childless females and couples), may receive benefits under the ORR-funded RCA and RMA programs. Under Title V of the Refugee Education Assistance Act, participating states are fully reimbursed for cash and medical assistance to Cuban and Haitian entrants under the same conditions and to the same extent as such assistance and services for refugees under the refugee program.

Refugee Cash Assistance (RCA)

States have the option of choosing either a publically administered or public/private RCA program. Most states publically administer their RCA program. By doing so, the state agency must operate its RCA program consistent with the provisions of their TANF program.

In publically administered RCA programs, payment levels to refugees or entrants are equivalent to a state's TANF payment levels, and thus vary across the country. The maximum RCA benefit for an individual entrant or refugee in the state of Florida, which is home to many Cuban émigrés, in 2008-2009 is $180 per month—the same payment standard as Florida TANF. In Tennessee, for example, an individual could receive up to $95 a month, and a family of three could receive up to $185 a month. In case of California, the monthly maximum benefit for a family of three is approximately $706 or $8,448 annually.

Public/private RCA programs have been approved by ORR in Maryland, Texas, Oregon, Louisiana, Oklahoma, and Minnesota. In the Texas RCA Provider Manual , the maximum RCA payment levels for the entire eight-month RCA period are $2,680 for one-person family unit, $3,600 for a two-person family unit, and $4,560 for a three-person family unit. Under the Texas public/private model, only a portion of the RCA payment levels are distributed in cash. In months five through eight, payments are distributed in the form of vendor payments for rent and utility.

Refugee Medical Assistance (RMA)

Like RCA benefits, states administer their own RMA program from ORR funds, which pay for 100% of RMA costs for eligible refugees and entrants. Refugees or entrants who are not eligible for their state's Medicaid program may be eligible for RMA benefits for up to eight months. In many states, covered services under RMA are the same as covered services under their state Medicaid plan. Costs of RMA per refugee vary due to variables such as age, health of the beneficiary, and services provided. The state of Florida, for example, estimated the average 2007 RMA monthly benefit per person at $165.29.

Analysis of Migration Trends40

Despite a history of travel restrictions imposed by the Castro government, Cuba was one of the top immigrant-sending countries during the last half of the 20 th century and is one of the top immigrant-sending countries thus far in the 21 st century. In FY2008, there were 49,500 Cubans who became legal permanent residents (LPRs)—surpassed only by LPRs from Mexico, China, India, and the Philippines. Yet, very few Cubans have arrived in the United States through the legal immigration avenues proscribed by the INA. An analysis of the trends in Cuban migrants—and how their patterns have changed over time—follows.

U.S. Coast Guard Interdictions

Since the May 1995 agreement, the U.S. Coast Guard interdictions of Cubans have fluctuated, but trended upward over time. Interdictions were low during the first few years after the migration agreement (e.g., 411 in FY1996 and 421 in FY1997). The number of Cuban interdictions more than doubled between FY1997 and FY1998—when 903 Cubans were interdicted—and reached 1,619 in FY1999. Interdictions gradually dipped from 1,000 in FY2000 to 666 in FY2002. Interdictions hit a 12-year high of 2,868 in FY2007. In FY2008, the U.S. Coast Guard interdicted 2,199 Cubans. Figure 1 presents this time series.

Unauthorized Cubans Arriving in the United States

Although the vast majority of foreign nationals apprehended by the U.S. Border Patrol agents are Mexican nationals, apprehensions of unauthorized migrants from other countries have more than quadrupled in recent years. Consistent with this trend, Cuban apprehensions have steadily escalated since a low point of 819 in FY2004. In FY2007, Cuban nationals comprised 4,295 of the 68,016 apprehensions of aliens from countries other than Mexico. The number of Cubans that the U.S. Border Patrol apprehended dipped slightly to 3,351 in FY2008. It is important to note, as Figure 2 depicts, that the U.S. Border Patrol apprehends most Cubans in coastal areas rather than along the southern land borders.

As discussed above, Cubans migrants have traditionally traveled by sea through the Florida Straits toward the coast of South Florida. Other Cubans have been seeking alternate travel routes. In a more western passage, migrants sail from Cuba coming ashore somewhere along Mexico's Yucatan Peninsula and eventually making their way over land to the U.S. border. According to media reports, many Cuban migrants have been landing on the coast of Mexico's Quintana Roo state, approximately 120 miles from the Cuban coast. According to a report published in one of Mexico's leading daily newspapers, La Jornada , Mexico had become the principal route for Cuban migration to the United States in 2007.

Cubans who arrived at ports of entry without documents appear to exhibit a pattern over time that is comparable to Coast Guard interdictions and Border Patrol apprehensions, although a complete 1995-2008 time series is not available. Inadmissible Cubans arriving at ports of entry reached a high of 13,019 in FY2007 and fell slightly to 11,278 in FY2008, as Figure 3 illustrates. The Laredo CBP field office reported the largest number of inadmissible Cubans during this period, FY2004-FY2008, with the Miami CBP field office following at a distant second.

In October 2008, Cuban Foreign Minister Felipe Perez Roque announced that Mexico would began to repatriate Cubans who arrive in Mexico with proper documents. The director of the Cancun regional office of the National Institute of Migration in Mexico, Luis Alberto Molina Rios, explained the policy change: "The option of repatriation will reduce the number of Cubans arriving in Mexico." Effective November 20, 2008, the Mexican Navy has reportedly added Cuban interdiction and repatriation to the duties of their vessels patrolling Mexico's eastern coast.

If confirmed Cuban nationals present themselves at an official land port of entry at the U.S border with Mexico, they are inspected by CBP regardless of whether the Cuban national has valid immigration documents. Cubans are expressly exempt from the expedited removal provisions in the INA, which allow CBP agents to remove any alien who lacks proper documentation from the United States without any further hearings or review, unless the alien indicates a fear of persecution. CBP officers generally parole Cuban nationals into the United States, and ultimately the Cuban parolees adjust to LPR status under the CAA. As a result, unauthorized Cuban migrants who enter through Mexico are more likely to identify themselves to CBP officers than are other unauthorized aliens.

In-country Refugee Processing

The United States has conducted in-country refugee processing in Cuba since the 1994-1995 migration talks. Cubans are eligible to apply for admission to the United States through the in-country refugee program under what is known as the Priority 2 (P-2) category. The P-2 category of Cubans specifically includes

former political prisoners; members of persecuted religious minorities; human rights activists; forced labor conscripts during the period 1965-1968; persons deprived of their professional credentials or subjected to other disproportionately harsh or discriminatory treatment resulting from their perceived or actual political or religious beliefs; and persons who have experienced or fear harm because of their relationship—family or social—to someone who falls under one of the preceding categories.

All refugee processing and admissions by the United States dropped precipitously when new security procedures were implemented after the September 11, 2001, terrorists attacks, and refugee processing of Cubans were no exception. As Figure 4 indicates, there were only 305 Cuban refugee arrivals in FY2003, primarily the result of the difficulties in conducting security clearances and background checks. During this period, there are were reported problems obtaining exit visas from the Cuban government for the refugees. The U.S. Citizenship and Immigration Services (USCIS) provided data for FY2004 that detailed this situation. USCIS considered 8,658 Cubans for refugee status and approved 5,670 (65%) in FY2004. Only 2,980 Cuban refugees, however, actually arrived in the United States in FY2004. The refugee processing logjam appears to have eased by the end of FY2005, as Figure 4 depicts 6,260 Cuban refugee arrivals. The in-country refugee program reportedly approved over 4,200 Cubans during FY2008, and 4,100 Cubans were expected to arrive in FY2008.

Trends in Cuban Legal Permanent Residents

In terms of total immigration from Cuba (i.e., as immediate relatives of U.S. citizens, as legal immigrants through the preference system, as refugees, as parolees or other adjustments through CAA or through the Nicaraguan Adjustment and Central American Relief Act), approximately half of a million Cubans have become LPRs since FY1981. Of that number, well over half have become LPRs since the 1994-1995 migration agreements went into effect. Although actual admission numbers have been jagged over this period, the trend line has moved upward.

Cuba consistently ranks among the top 10 source countries for LPRs. A total of 49,500 Cubans became legal permanent residents in FY2008. Cuba ranked fifth as a top immigrant-sending country—after Mexico, China, India, and the Philippines—in FY2008.

Current Challenges and Issues

U.S. immigration policy toward Cuban migrants juggles immigration control and humanitarian compassion within a larger policy framework that remains quite contentious. The change in leadership of both the United States and Cuba may provide openings for revisions in U.S. policy on Cuban migration. A normalization of immigration policies, however, is not imminent nor is it likely to be easily achieved. Some of the major challenges and issues that bear on U.S. policy on Cuban migrants are discussed below.

Interdiction and Repatriation

Some consider the migrant interdiction and repatriation policy to be at odds with the rescue mission of the U.S. Coast Guard, while others view it as integral to maritime security role of the U.S. Coast Guard. A series of events in 1999 illustrate the difficulties balancing these priorities. A well-publicized incident in June 1999 provoked outrage when the U.S. Coast Guard used pepper spray and a water cannon to prevent six Cubans from reaching Surfside Beach in Florida. A few weeks later, a woman drowned when a boat capsized during interdiction. Notably in late November 1999, the U.S. Coast Guard opted to bring six-year old Elian Gonzalez and two other survivors of an ill-fated journey to the United States rather than taking them to Cuba as the migration agreement provides. For the first five months Elian Gonzalez was in the United States, he was in the temporary care of his father's uncle, Lazaro Gonzalez, who lives in Miami. When Elian's father, Juan Miguel Gonzalez, arrived in the United States in April 2000 to assume custody of his son, Lazaro Gonzalez defied a federal government order to turn over the child. Then-Attorney General Janet Reno ordered federal law enforcement officers to remove Elian from the home of Lazaro Gonzalez in the pre-dawn hours of April 22, 2000.

Several incidents in 2003 offer further examples of the interdiction and repatriation dilemma. On April 11, 2003, the Cuban government executed three men who had hijacked a ferry in Havana on April 2 in an attempt to reach the United States. The men were executed by firing squads after summary trials that were held behind closed doors. International human rights groups, such as Amnesty International and Human Rights Watch, and a number of countries, including Mexico, the European Union, and the 15-nation Caribbean Community, condemned the crackdown and the executions. In July 2003, a dozen people reportedly stole a Cuban-flagged boat from the marina where it was docked in Cuba and kidnapped the three watchmen guarding the marina in the process. When the boat was in international waters allegedly on route to Florida, the U.S. Coast Guard officials tried to intercept it and reportedly faced violent resistance when they interdicted the vessel. All 15 persons on board were taken to the U.S. Coast Guard cutter and interviewed by a USCIS asylum officer. The three watchmen indicated a desire to return to Cuba. When the Cuban government offered to sentence the 12 persons implicated in crimes (purportedly boat theft, kidnapping, and assaulting federal officers) to 10 years in prison, the United States agreed to return them.

The reach of the interdiction policy became clear on January 5, 2006, when the U.S. Coast Guard found 15 Cubans, including 4 women and 2 children, on an old Key West bridge that was no longer connected to land. The decision to repatriate the Cubans was made by the Coast Guard's legal office in conjunction with DHS Immigration and Customs Enforcement. The Coast Guard stated that the Cubans "were determined to be feet-wet and processed in accordance with standard procedure." By 2006, migrant interdiction and repatriation had become the keystone in the designing of Operation Vigiliant Sentry (OVS), the DHS coordinated plan for response to a Caribbean mass migration. OVS was reportedly exercised throughout 2006 to prepare for a potential migration in the event of instability in Cuba.

Supporters of these repatriation decisions argue that it is critical to deter illegal and dangerous migration of Cubans who flee on unseaworthy or overcrowded vessels. Some further maintain that the prison sentences of the 12 Cubans who stole a boat in 2003, which the Cuban government apparently negotiated with the United States, were essential to prevent a repeat of summary executions that occurred to the hijackers in April of that year. Critics of these decisions assert that both countries (United States and Cuba) are denying these people their rights to due process and a hearing. Some called for a full investigation of these incidents, and some sought an end to the current interdiction and repatriation policy.

Cuban Adjustment Act

Some maintain the 1966 Cuban Adjustment Act is obsolete and locked into the mind set of the Cold War era, as well as unnecessary since Cubans may seek asylum under the refugee laws enacted since 1966. The CAA, as discussed above, permits Cubans who have been physically present in the United States for at least one year to become LPRs. Over the decades since its enactment, it has enabled most Cubans to enter the United States regardless of whether they have proper immigration documents. Some opponents of the CAA assert that it is discriminatory because it gives Cubans an immigration advantage that foreign nationals from no other country have. Immigration control proponents have argued that it serves as a magnet attracting Cubans who would not otherwise qualify for admission. Just as there are efforts in Congress to liberalize economic policies (especially travel and agricultural) with Cuba since Raul Castro assumed power, some argue that it is time to regularize immigration policy with Cuba.

Opponents of repealing or revising the CAA say that it would send the wrong message to Cubans during this critical period. It is not necessary and may be unwise, some maintain, to alter the law now that Fidel Castro has transferred power to his brother Raul Castro. Supporters of the CAA point out that the success of the migration agreement—particularly its commitment to admit at least 20,000 Cubans annually—depends on the ability to adjust the parolees under the CAA. If the CAA were repealed, supporters point out, only Cubans who met the refugee definition or who qualified for visas as family-sponsored immigrants or as employment-based immigrants would be able to immigrate to the United States, and the backlogs for immigrant visas would grow.

Cash Benefits

Confusion over the extent of federal cash assistance available to Cuban migrants prompted allegations that Cubans were receiving cash payments in excess of amounts normally available to other program beneficiaries. Some allege further that Cuban migrants use these federal cash payments to pay smugglers to shepherd them into the United States. Media reports have indicated that smugglers can charge Cuban migrants up to $15,000 each.

The RCA payments available to Cuban entrants, however, are not issued in a lump sum, and the payment levels provide only basic monthly assistance to refugees without income or assets with which to support themselves for a maximum period of eight months. In the state of Florida, for example, a single Cuban entrant—as other eligible refugees and asylees—who meets the federal and state eligibility requirements for RCA in Florida would be eligible to receive between $95 to $180 a month.

More broadly, some questions why all Cubans—rather than those who enter as refugees—are afforded the same set of federal benefits as refugees. Most LPRs who enter the United States are barred from federal benefits for at least five years according to comprehensive restrictions on the eligibility of noncitizens for means-tested public assistance. Others maintain that Cubans are refugees, regardless of whether they adjust through the CAA or the refugee provisions in the INA.

Migration Talks

Whether the United States should resume migration talks with Cuba is central to the policy debate. Semi-annual migration talks between Cuba and the United States had been held regularly on the implementation of the 1994 and 1995 migration accords for a decade. The U.S. State Department, however, had cancelled the 20 th round of talks scheduled for January 2004, and no migration talks were held since. According to the State Department, Cuba had refused to discuss issues integral to the migration agreement. In response to the cancellation of the talks, Cuban officials maintained that the decision of the United States was irresponsible and that Cuba was prepared to discuss all of the issues raised by the United States.

Fidel Castro's departure as head of government in July 2006 has prompted some observers to call for a reexamination of U.S. policy toward Cuba overall, and a potential opportunity to restart the migration talks. After serving temporarily, Raúl Castro, brother of the former dictator, officially assumed the Cuban presidency in February 2008. This transfer of power between the Castro brothers led some to question whether there would be much of an opening for renewed migration talks between the United States and Cuba.

During the 2008 presidential campaign, however, President Barack Obama stated he would seek to change U.S. policy by allowing unlimited family travel and remittances to Cuba, signaling to some the possibility of resuming the migration talks. In his opening speech at the Summit of the Americas on April 17, 2009, President Obama expressed the hope of "a new beginning with Cuba," specifically mentioning migration as an issue.

Supporters of resuming the migration talks maintain that the talks are a key element. In February, the ranking member of the Committee on Foreign Relations, Senator Richard Lugar, released a staff report that specifically called for a resumption of the migrations talks.

Regarding migration, staff recommends the revival of US.-Cuban biannual migrations talks, which have been suspended since 2004. These talks provide an important venue for discussing the shared problem of illegal migration. The USG should remain committed to fully implementing its agreements under the 1994 Joint Communique and the 1995 Joint Statement (collectively known as the U.S.-Cuba Migration Accords) as effective tools for promoting safe, legal, and orderly migration.

In addition, staff suggests an executive branch review of the "wet-foot, dry-foot policy." Under this policy, Cubans who are intercepted at sea are sent back to Cuba or to a third country while those who make it to U.S. soil are allowed to remain in the United States. The review should assess whether this policy has led to the inefficient use of U.S. Coast Guard resources and assets as well as the potential to redirect these resources to drug interdiction efforts.

Some of those challenging the resumption of the migration talks argue that Cuba should address the five areas of concern (listed above) before the United States moves forward. The State Department spokesman during the George W. Bush Administration, Richard Boucher, made this point in 2004: "The point is not just to have a meeting," Boucher said, "the point is to deal with the serious issues involved." Whether to even negotiate with the current government of Cuba is an issue raised by others. Roger Noreiga, of the American Enterprise Institute and formerly the Assistant Secretary of State for Western Hemisphere Affairs, offered this argument in 2008:

Some of those counseling "stability" may be concerned about a mass migration of Cubans fleeing chaos. It is time to rethink that argument, which is usually wielded by those policymakers counseling a "go slow" approach. The best hope for avoiding a dangerous mass migration of Cubans to our shores in a post-Fidel world is to help them press for real change at home. If we stand by as their dreams of a new future are dashed by Raúl, we are inviting a burst of migration by a new generation of desperate Cubans.… In this post-Fidel period, any clumsy word or deed suggesting that the United States accepts the transfer of power from one dictator to another would snuff out the nascent hopes for freedom and consign 11million Cubans to additional years of hopeless dictatorship.

On May 31, 2009, an official at the U.S. Department of State reported that the Cuban government had indicated that it wants to resume talks on the legal immigration of Cubans to the United States. Migration talks with Cuba, however meaningful, would likely be incremental in scope. The objectives of such talks would be striving toward safe, legal, and orderly immigration.