MIAMI – In a last-minute addition to his legacy of improving relations with Cuba, President Barack Obama put an end Thursday to the "wet foot, dry foot" policy that has benefited hundreds of thousands of Cuban migrants over the past 20 years.
The policy, which allowed Cubans who set foot on U.S. territory to remain while those intercepted at sea were largely returned to the island, was adopted by President Bill Clinton after the 1994 “Rafter Crisis” that saw more than 35,000 Cubans take to the seas aboard flimsy homemade boats.
The change raises many questions for those Cubans who are already on their way to the United States, in South or Central America, or readying boats to leave the island. It also raises many questions about Donald Trump's approach to Cuba policy when he enters the White House on Jan. 20. Until those questions are answered, here is some key information:
1. What happens to Cubans who arrive after Thursday?
The change means that any Cubans who enter the United States on foot or arrive by boat will be treated in the same manner as any other migrants. It is likely that many will apply for political asylum in hopes of being able to remain legally. Those who try to enter U.S. territory without documents and cannot demonstrate a “credible fear” of persecution if they are returned to Cuba “will face a process of deportation,” Cecilia Muñoz, White House director of domestic policy, told Univision.
“Those who arrive now must seek political asylum, just like a Honduran, a Salvadoran or a Mexican. They have to be interviewed for 'credible fear,' and they have to explain why they should not be returned to their country,” said immigration lawyer Willie Allen. It is likely, he added, that those Cuban migrants making their way by land to the United States will be asked why they did not seek asylum in other countries. That happened with Haitians who arrived recently from Brazil, who were denied entry. The change also implies that Cubans who request asylum will not be able to return to the island until their request is decided, which can take two to four years. Until now, Cubans could become legal residents under the Cuban Adjustment Act after just one year and one day, and then could return to the island.
Those who ask for asylum will also have to wait 150 days to obtain a work permit – not the current three months. “They will also lose all economic aid, except in those cases where asylum is granted, because then they can ask for some assistance,” Allen said.
2. What's the process for applying for asylum?
Cuban migrants who want to apply for asylum must first pass the “credible fear” interview. If they do, they may be released under parole or bail to await processing.
“Once free, they will have to appear before an immigration judge and fight to obtain political asylum. And winning political asylum is difficult,” said Allen, adding that most migrants who apply are denied. “Even in the worst times in Cuba, at the end of the 1960s, 70 percent of Cubans saw their asylum applications denied.” The lawyer added that each asylum application is considered individually, and that those who apply must explain and document as much as possible what they did in Cuba that sparked their persecution, and what danger they would run if they are returned to Cuba. “Sometimes there's no documentation to prove what you say. It's your word. I have won asylum cases with little evidence, and I have seen cases lost that had a lot of false evidence,” he said. “They have to be stories that are credible, consistent and with as much documentation as possible. It's your obligation to submit evidence that can be reasonably obtained.”
3. Will Havana accept the return of Cubans deported by other countries?
Yes. Under the U.S.-Cuba agreement announced Thursday, Havana agreed to accept the return of Cubans who are deported, just as it has been accepting the return of Cubans intercepted at sea, according to a White House statement. That could become a headache for the Trump administration, Allen noted, because the new president will be the one who will have to deal with Cuba on deportations.
4. Will Cubans continue to receive benefits not available to other migrants?
Yes. The Cuban Adjustment Act of 1966 continues. That means Cubans who enter the United States legally with a visa can still obtain legal residence after one year and one day. “All Cubans who arrive at an airport with visas or passports from Spain, Colombia or any other country can legalize their stay after one year and one day. That part of the law remains in place,” Allen said.
5. What kind of visas can Cubans obtain?
Cubans can apply for any type of visas for legal entry to the United States. If they ask for a B2 visitors' visa, for example, they have to show in an interview with U.S. consular officials that they do not intend to stay and live in the United States.
Immigration lawyer Grisell Ybarra warned that U.S. authorities could reject applications for residence from Cubans who arrived on visitors' visas and overstayed their time, if they believe that the Cubans lied in their visa applications.
“The person who goes into a U.S. consulate and asks for a tourist visa and tells the consul, 'I don't have any intention to stay – you pick up the visa on Tuesday, you arrive on Wednesday and you stay – they could be denied residence based on that person lying to the consul,” she said. The U.S. government however retained its Humanitarian Reunification program for Cuban families, which allows some Cubans in the United States to seek migrant visas for relatives on the island.
6. How will this affect other migrants who request asylum?
Allen said the change could significantly add to the wait list for considering and deciding asylum applications. The U.S. asylum office is currently giving preference to unaccompanied minors who walked across the border with Mexico, and mothers with small children. “Normal asylum cases are taking almost two years to be approved or go to trial. Although the number of judges has been increased in recent months, I don't believe they will be enough if Cubans continue to enter and request asylum.”