Rethinking the Cuban Adjustment Act and the U.S. national interest.

AuthorHughes, Joyce A.
  1. Introduction II. Fidel Castro's Rise to Power and Cuba's Tension with the United States III. The Passage of, and Justification for the Cuban Adjustment Act A. Cuban Immigration Prior to the Passage of the CAA: 1959-1966 B. The Cuban Adjustment Act of 1966 1. Easing the Administrative Burden 2. Integrating Cuban Exiles into the American Workforce 3. Providing Refuge to Victim's of Communist Persecution 4. Waging a Cold, Ideological War IV. Application of the CAA since Its Passage A. 1980--Mariel Boatlift B. 1994--Balseros Migration Crisis C. Application of the CAA since the 1994 Balsero Crisis V. Criticism of the CAA and the Wet Foot / Dry Foot Policy A. The Underlying Justifications for the Initial Passage of the CAA are No Longer Valid B. The Cuban Government's Position--La Ley Asesina C. The "Wet Foot / Dry Foot Policy" is Inconsistent with the Language of the CAA D. The CAA is Unfair to Migrants of Other Nationalities VI. Conclusion I. INTRODUCTION

    This article argues that it is time for the United States to reconsider the continuing relevance of the Cuban Adjustment Act ("CAA") of 1966, (3) and to either modify or repeal it. The CAA allows Cuban migrants to "circumvent the usual methods used to determine refugee status," (4) and grants the "Attorney General discretion to adjust the status of a Cuban citizen admitted or paroled" into that of an "alien lawfully admitted for permanent residence" as long as the Cuban individual has been physically present in the United States for one uninterrupted year. (5) That is, under the terms of the CAA, Cubans are neither "required to qualify for a visa under the categories established for immigrants," nor are "they required to establish" refugee status, which is generally a prerequisite for obtaining asylum. (6)

    This article takes the position that there is no longer any legitimate reason for granting Cubans special immigration privileges in light of the changes the world has undergone since the passage of the CAA in 1966. (7) Moreover, this article argues that a change in immigration policy towards Cuba is a necessary response to the espionage threat that Cuba's intelligence services pose to U.S. national security, as the policy of paroling nearly all Cubans touching U.S. soil provides a mechanism by which the Cuban government may infiltrate its spies into the United States. (8)

    Although this article does not analyze the complex intricacies of U.S.-Cuba relations, an analysis of any U.S. immigration policy towards Cuba would be incomplete without any mention of the political context in which U.S.-Cuba relations have developed. (9) Indeed, one cannot attain a minimum understanding of U.S. immigration policy towards Cuba unless one also understands this policy as a means by which the United States has attempted to undermine the legitimacy of Fidel Castro's government. (10) Accordingly, Part II briefly chronicles the events leading to Fidel Castro's rise to power, and highlights the major events that have caused Cuba's strained relationship with the United States. Part III addresses the initial justifications for the passage of the CAA. Part IV explores the different ways the CAA has been applied since its passage. Part V describes critics' arguments against the CAA, and evaluates the validity of these arguments. Finally, Part VI concludes that whatever utility the CAA may have served, it is time for U.S. law to accord Cubans the same legal treatment that others wishing to immigrate to the United States receive because doing so is in the national security interest of the United States. (11)

  2. FIDEL CASTRO'S RISE TO POWER AND CUBA'S TENSION WITH THE UNITED STATES

    January 1, 1959 signaled the dawn of a new era for U.S.-Cuba relations. (12) On this date, Cuban dictator Fulgencio Batista fled Cuba as Fidel Castro and his fellow barbudos (13) descended victoriously from the Sierra Maestra mountains, where they had waged a guerrilla war against Batista since 1956. (14)

    Previously, in 1953, Castro had led a failed revolt against Batista's government by attacking the Moncada military barracks in Santiago de Cuba. (15) After serving two years in prison, Castro traveled to Mexico, where he organized a second revolt against Batista. (16) In 1956, Castro and eighty-one other men departed Mexico in an overloaded thirty-eight foot yacht named the Granma, and landed in the Oriente Province of Cuba. (17) Upon their arrival in Oriente, Castro and his men dispersed into the Sierra Maestra Mountains. (18) As unlikely as it may seem, this group of eighty-two men began what would ultimately become the first socialist revolution in the Western Hemisphere. (19)

    Although it may be tempting to think of U.S.-Cuba relations within the exclusive context of the Cold War, (20) one should note that U.S. relations with Cuba--and Cuban immigration to the United States--pre-date the Castro regime. (21) In 1890, there were approximately 20,000 Cubans living in the United States. (22) This number rose to 40,000 by 1910. (23) Jose Marti, the nineteenth-century leader of Cuba's independence

    movement, spent a considerable portion of his adult life in the United States, where he organized Cuban exile groups in New York and Florida against Spanish colonial rule from 1881 to 1895. (24)

    In 1895, Marti led Cuba's final rebellion against Spain. (25) The United States intervened in this rebellion following the sinking of the American battleship U.S.S. Maine in Havana Harbor on February 15, 1898. (26) The U.S. hostilities' against Spain ended with the signing of the Treaty of Paris on December 10, 1898. (27) Under the terms of this treaty, Spain relinquished its claims to Cuba, and ceded Puerto Rico and the Philippines to the United States. (28)

    Although Cuba ceased being a Spanish colony in 1898, it was not completely sovereign. The United States occupied Cuba militarily until 1902. (29) A provision of Cuba's 1901 constitution incorporated the Platt Amendment, which authorized the United States to intervene in Cuban affairs, among other things, "for the preservation of Cuban independence, the maintenance of a government adequate for the protection of life, property and individual liberty, and for discharging the obligations with respect to Cuba imposed by the Treaty of Paris on the United States." (30)

    From 1901 to 1934, the Platt Amendment was a source of humiliation to many Cubans because it stymied the sovereignty they had worked so hard to achieve. (31) Under the legal cloak of the Platt Amendment, the United States militarily intervened in Cuba in 1906 and 1912, and politically intervened in internal Cuban affairs on a number of other occasions throughout the early twentieth century. (32) To add further insult to injury, the Platt Amendment served as "the basis for the U.S. acquisition of rights" to a portion of Guantanamo Bay--sovereign Cuban territory; the United States would ultimately establish a naval base on this piece of territory which, as of 2011, remains operational. (33) The U.S. military presence in Guantanamo can be terminated only by mutual agreement or unilateral U.S. withdrawal; that is, Cuba cannot exercise its sovereignty to expel the U.S. Navy from Guantanamo. (34)

    Cubans' indignation with U.S. policy towards Cuba, coupled with the succession of corrupt governments following independence, set the stage for Castro's rise to power. (35) In 1959, "[t]he overwhelming majority of the Cuban people recognized Castro as a revolutionary hero, who, despite tremendous odds, had defeated [a] corrupt and brutal dictatorship." (36) Although the U.S. government did not immediately declare its enmity towards Castro's government, it soon became apparent that Castro would become a thorn in the side of the United States. (37) In 1960, Cuba nationalized U.S. businesses, and in 1961 the United States broke diplomatic relations with Cuba. (38) On April 17, 1961, over 1,000 U.S.-trained Cuban exiles invaded Cuba's Bay of Pigs with the goal of overthrowing Castro's government. (39) Castro's forces crushed the invaders, who surrendered within seventy-two hours. (40) Following the Bay of Pigs victory, Castro proclaimed the socialist nature of the Cuban Revolution during his May Day speech in 1961. (41)

    Slightly over one year later, in October 1962, "U.S. reconnaissance planes discovered Soviet-made nuclear missiles in Cuba." (42) The United States responded by imposing a naval blockade around the island, resulting in a confrontation with the Soviet Union known as the Cuban Missile Crisis. (43) The United States and the Soviet Union successfully negotiated the withdrawal of the Soviet missiles on October 28, 1962. (44) In exchange for the Soviet withdrawal of its nuclear missiles from Cuba, the United States pledged to: (1) refrain from using military force against the island, (2) eliminate the naval blockade, and (3) withdraw U.S. strategic nuclear missiles from Turkey. (45)

    As of February 2010, the Cold War has been over for nearly two decades and the Soviet Union no longer exists. (46) Fidel Castro has not officially been the leader of Cuba since he ceded control of the government to his brother, Raul, after falling ill in August of 2006. (47) Notwithstanding these changes, U.S. policy towards Cuba remains largely unchanged. (48) The economic embargo that President Kennedy instituted in 1962 remains in place, and was strengthened with the passing of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996. (49) Moreover, despite some changes in the application of the CAA--which are discussed in later sections--Cubans remain the "special favorites" of U.S. immigration policy. (50)

  3. THE PASSAGE OF, AND JUSTIFICATION FOR THE CUBAN ADJUSTMENT ACT

    1. CUBAN IMMIGRATION PRIOR TO THE PASSAGE OF THE CAA: 1959-1966

      Castro's rise to power witnessed an influx of emigration from Cuba to the United States. (51) The first wave of Cuban exiles consisted of "[o]ver 200,000 individuals who were highly...

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