Excerpted From: Gisell Curbelo and Sahar F. Aziz, The End of Cuban Exceptionalism in American Migration Policy, 25 Rutgers Race & the Law Review 69 (2024) (255 Footnotes) (Full Document Requested)

CurbeloAzizA steady stream of Cubans entering the United States fleeing life under a Communist dictatorship is not uncommon. Cuba's recent deteriorating political, economic, and social conditions have set off yet another mass migration wave on a scale not seen in four decades since the 1980 Mariel Boatlift. The compounding influence of the country's economic recession, intensification of economic sanctions by the Trump administration, the effects of the coronavirus pandemic, and brutal government repression of peaceful protesters propelled the largest exodus in Cuba's history between 2021 to 2023. This latest wave is comprised of more than 392,000 Cubans, more than 3 percent of the island's 11 million population, most of whom arrive at the southern border by land.

While earlier waves of migrants could rely on the Cuban Adjustment Act (CAA), a bipartisan policy passed in 1964, for a pathway to permanent residency, these recent migrants are ineligible due to the Obama administration's termination of the wet-foot/dry-foot policy. This places hundreds of thousands of Cuban migrants at risk of deportation to Cuba only to face political persecution and severe economic hardship. Despite these new legal challenges confronting the new wave of migration, the current priority of the 118th Congress is directed toward foreign policy with Cuba. Meanwhile, the U.S. embargo has endured for 60 years, failing in its initial objective of regime change and promoting democracy. To the contrary, the economic hardships caused by the embargo have contributed to the multiple waves of immigration to the United States. Washington Office on Latin America Assistant Director for Cuba Mariakarla Nodarse, declared, “The United States cannot be oblivious to the damage caused by its actions. The administration has an obligation to address the many ways U.S. policy contributes to the worsening humanitarian situation in Cuba.” The economic embargo of the United States is integral to the migratory patterns and humanitarian crisis on the island.

This article argues that the termination of the wet-foot/dryfoot policy in 2017 by the Obama administration has left the latest Cuban wave in immigration limbo, with the real possibility of deportation. Wet-foot/dry-foot was a policy created by the Clinton administration in 1995 to prevent unauthorized migration from Cuba. The policy established that all Cubans interdicted at sea would be sent to the U.S. Naval Base in Guantánamo, and deported back to Cuba. However, Cubans who reached U.S. soil by foot were given parole for entry into the United States, and after a year, they could adjust their status to lawful residents pursuant to the Cuban Adjustment Act and then be eligible for naturalization to U.S citizenship. The end of the wet-foot/dry-foot policy creates new legal hurdles for a population who no longer has access to what had become a standard legal migratory pathway. This article focuses on and critiques United States Department of Homeland Security's (DHS) failure to handle the recent surge of Cuban migration, resulting in differential treatment among Cuban nationals arriving in the United States during the same period. Relying on interviews with recent Cuban migrants, the article sheds light on a pressing humanitarian crisis that is currently being overlooked. Despite the dire situation for Cubans navigating the complexities of immigration limbo, it has received little attention in legal scholarship.

The article is divided into four sections. Section I traces the policies that have led to the making of Cuban exceptionalism by looking at the executive branch's role and the discretionary parole power granted to immigration officials. The Attorney General's parole authority allowed for presidential unilateralism when responding to Cuban migration and consolidated the executive's use of immigration as a foreign policy tool to advance U.S. foreign policy against a communist nation during the Cold War. Immigration policies converted Cuban refugees into powerful political leverage amid the tension between the U.S. and Cuba. Section II examines in depth the current wave of Cuban migration within the post wet-foot/dry-foot era, which previously granted special rights to Cubans seeking asylum in the U.S. The transition away from Cuban exceptionalism has produced legal confusion and inconsistencies for four interconnected actors: Cuban migrants, immigration attorneys, immigration judges, and DHS. With wet-foot/dry-foot policy no longer in place, not all Cubans can adjust their status to permanent residency under the CAA. Therefore, only a small portion of Cubans from the latest exodus benefit from the CAA. Section III explores how and why asylum has become the new and only legal avenue for hundreds of thousands of Cuban migrants seeking to permanent legal status in the U.S.

The final section makes two policy recommendations. First, the executive branch must end the legal confusion caused by inconsistent and arbitrary decisions by immigration judges and the DHS. Specifically, the Federal Court of Appeals should issue a ruling that allows any Cuban migrant released from DHS custody to be paroled into the U.S. for purposes of the Cuban Adjustment Act. Second, the government must change the inhumane and inefficient alternatives to detention under the Intensive Supervision Appearance Program. In its place, DHS should adopt a community-based alternative to detention that focuses on initial stabilization services and legal orientation for asylum seekers instead of electronic-intensive surveillance.

[. . .]

Time will tell how the end of Cuban exceptionalism will unfold. Cuba' worsening economic crisis and the government's heightened repression of dissidents continue pushing individuals to flee the country through dangerous routes. The 2021-2023 migratory wave is the first time since the 1980 Mariel exodus that migration on this scale has occurred. It is also the first time in history that more than 250,000 Cubans in a two-year period have presented themselves at the southwest border seeking asylum.

All the prior waves of immigration arrived through two primary channels: airplane and make-shift rafts. The previous migration, till 2017, had access to immigration relief through the CAA, and the wet-foot/dry-foot policy. This article centers itself on the alternative avenue Cuban migrants have resorted to--migrating on foot. A phenomenon that still remains to be studied in depth, especially in light of the repeal of the wet-foot/dry-foot policy. This article argues that the end of wet-foot/dry-foot also marked the end of Cuban exceptionalism. It examines the legal obstacles encountered by this group of Cuban migrants as a result of disparate treatment received from both the Department of Homeland Security, USCIS and immigration judges. This article proposes two policies; the first one resolves the legal confusion caused by the DHS, and immigration judges to the Cuban population. The Federal Court of Appeals should issue a decision standardizing the documentation provided to Cubans who no longer have access to the immigration relief outline in wet-foot/dry-foot. The second policy proposal extends a broader critique of the United States detention system, which applies to all individuals seeking asylum at the southern border regardless of nationality. The current ISAP program does not constitute an alternative to detention; instead, it allows ICE to exercise excessive electronic supervision over asylum seekers. A real alternative to detention, such as a community-based program, should rely on community monitoring and social workers. A community-based system can provide a more humane and efficient means of working with asylum seekers. Finally, the article underscores the pressing nature of the legal limbo experienced by Cuban migrants that warrant policy reform.

Holds a Bachelor of Arts from the School of Public and International Affairs at Princeton University. She has a minor in Latin American Studies, Latino Studies, and Spanish Language.

Distinguished Professor of Law and Chancellor's Social Justice Scholar, Rutgers University Law School. Author of The Racial Muslim: When Racism Quashes Religious Freedom (2021).