Democratic.net: [RED DEMOCRATICA] ¿ Es hora de eliminar la Ley de Ajuste Cubano en EE.UU.?

-- N E W S L E T T E R • M A Y 2 0 1 4 [pp. 4-5] --

HISPANIC BAR ASSOCIATION OF NEW JERSEY

Is it Time to Repeal the Cuban Adjustment Act?

BY: ALEXANDER L. ALUM, ESQ.*

The Cuban Adjustment Act ("CAA"), enacted in 1966, allows Cubans who have been admitted or paroled into the United States to adjust their status to that of a permanent resident so long as they have been physically present in the United States for one uninterrupted year.¹ In essence, the CAA allows nearly all Cubans who arrive in the United States by any means —legal or illegal— to bypass the normal channels for obtaining lawful status and places them on the fast-track to legal residency and eventual U.S. citizenship. Unlike other immigrants, Cubans need not possess an immigrant visa or satisfy the legal requirements for obtaining asylum to remain in the United States legally. Their primary challenge to settling in the United States permanently is reaching U.S. soil.

Why is U.S. immigration law so generous to Cubans? Among the main reasons that Congress enacted the CAA was to grant Cubans fleeing Fidel Castro's dictatorial regime refuge, and to facilitate their integration into U.S. society by providing them an easy means of obtaining legal permanent residence.² Between 1959 —the year Castro assumed power— and 1965, over 400,000 Cubans fled to the United States.³ The U.S. government granted these Cubans temporary admission into the United States through the parole power, with the expectation that they would return to Cuba upon the dissolution of the Castro regime.⁴ Without action from Congress, these Cuban parolees would have to apply for a visa to normalize their legal status in the United States and remain in the country indefinitely.⁵ To obviate the need for this, Congress enacted the CAA.

Almost five decades after its passage, the CAA remains in full force. The only change has been in its application. Faced with a migration crisis in 1994 after 35,000 Cubans fled to the United States following Castro's announcement that anyone who wished to leave the island would be free to do so, President Clinton instituted a policy of repatriating any Cuban interdicted at sea.⁶ Nevertheless, pursuant to the CAA, the U.S. government continued its policy of paroling nearly any Cuban who reached U.S. land, notwithstanding the Immigration and Nationality Act's general prohibition against admitting those entering the United States illegally.⁷ This "wet foot / dry foot" policy remains the policy of the United States.

The time has come to change this policy as it undermines the U.S. national interest, and actually serves the interests of the Cuban regime, one which the U.S. State Department and reputable human rights organizations such as Amnesty International and Human Rights Watch have consistently condemned for its flagrant human rights abuses.⁸

With President Obama's 2009 lifting of most restrictions affecting Cuban-American travel to Cuba,⁹ and a 2013 Cuban law allowing Cubans to reside abroad for a period of up to 24 months without losing their Cuban residency,¹⁰ it is conceivable for Cubans availing themselves of the CAA to maintain one residence in the United States and another in Cuba. The effect of this will be an injection of U.S.-earned dollars to the Cuban regime. This is certainly not the result Congress had in mind when it passed the CAA.

More importantly, the CAA facilitates the Cuban government's infiltration of its spies into the United States. Because of the clandestine nature of intelligence operations, it is impossible to know just how many Cuban spies have arrived in the United States illegally, adjusted their status pursuant to the CAA, and are now living among us. We do know, however, that over the last two decades Cuba's intelligence services have aggressively targeted the U.S. government and the Cuban émigré community. A few examples illustrate this point:

In the mid-1990s, the FBI dismantled a network of Cuban agents operating in South Florida. Some of these agents infiltrated Brothers to the Rescue, a Cuban exile organization that flew aircraft over the Florida straits to rescue rafters fleeing Cuba. In 1996, the Cuban government shot down two Brothers to the Rescue aircraft over international airspace, killing four individuals. Prior to the shoot-down, the Cuban government had tasked its agents to provide details about the organization's flight plans.¹¹

In 2001, the FBI arrested Ana Belen Montes, a senior analyst with the Defense Intelligence Agency. Montes acknowledged spying for Cuba for over a decade and is currently serving a 25-year prison sentence. Montes'Cuban handlers, with whom she met in the United States, have never been identified.¹²

In 2006, Carlos Alvarez—a Cuban professor at Florida International University—and his wife were arrested and charged with spying for Cuba. Mr. Alvarez admitted that he spied on Cuban exile groups for nearly thirty years. Mr. and Mrs. Alvarez pled guilty to certain charges arising from their espionage activities, and received a five and three-year sentence, respectively.¹³

On June 4, 2009, the FBI arrested U.S. State Department employee Walter Kendall Myers and his wife, and charged them with spying for Cuba for three decades. Both plead guilty. Mr. Myers is currently serving a life sentence, and his wife is serving an 81-month sentence.¹⁴

In 2013, the U.S. Department of Justice unsealed an indictment charging former State Department employee Marta Rita Velazquez with conspiracy to commit espionage. Velazquez allegedly introduced Ana Belen Montes to the Cuban intelligence service in 1984. Velazquez currently resides in Sweden and remains outside the reach of U.S. justice.¹⁵

In light of how aggressively Cuba's intelligence services target the United States and the Cuban-American community, it would be naive to believe that U.S. authorities have discovered every instance of Cuban espionage. Although some Cuban spies who have been caught over the past decades are not of Cuban origin, those who are may never have been required to obtain a visa to remain in the United States legally thanks to the CAA. To be sure, repealing the CAA would not completely eliminate the threat of Cuban espionage, but it would deprive the Cuban regime of one vehicle for infiltrating its agents into our country.

Indeed, repealing the CAA would not be inconsistent with the long-standing U.S. policy of granting refuge to Cubans who flee persecution in Cuba. Consistent with U.S. law, a Cuban who can establish a "well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion," would be eligible for asylum and allowed to establish residency in the United States.¹⁶ The fact that so many Cubans who avail themselves of the CAA return to vacation in Cuba, however, demonstrates that not every Cuban has such a well-founded fear.¹⁷ U.S. Law should be changed to reflect this reality.

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NOTAS:

1 See Cuban Adjustment Act of 1966, Pub. L. No. 89-732, 80 Stat. 1161 (1966) (codified as amended at 8 U.S.C. § 1255).

2 See Adjustment of Status for Cuban Refugees: Hearings on H.R. 15182, H.R. 15184, H.R. 16908,

H.R. 10801, and H.R. 13393 Before Subcomm. No. 1 of the H. Comm. on the Judiciary, 89th Cong. 4 (1966).

3 Joyce A. Hughes and Alexander L. Alum, Rethinking the Cuban Adjustment Act and the U.S. National Interest, 23 St. Thomas L. Rev. 187, 194 (2011).

4 Id. at 194.

5 See Silva v. Bell, 605 F.2d 978, 980 (7th Cir. 1979) ("[P]arole admittance is temporary and a paroled alien must eventually either secure a visa through regular procedures or return to his country of origin . . . .").

6 Hughes & Alum, supra at 203-04, note 3.

7 Id. at 207.

8 Amnesty International, Amnesty International Report 2013: the State of the World's Human Rights, 74-75 (2013); World Report 2013, Human Rights Watch (2013), available at www.hrw.org/world-report/2013/country-chapters/cuba (last visited Feb. 16, 2014).

9 See Press Release, White House, Fact Sheet: Reaching Out to the Cuban People (Apr. 13, 2009), available at www.whitehouse.gov/ the_press_office/Fact-Sheet-Reaching-out-to-the-Cuban-people (last visited Feb. 16, 2014).

10 Victoria Burnett, After Decades, Cuba Eases Travel Rules to Maintain Ties, N.Y. Times, (Jan. 13 2013), available at www.nytimes.com/2013/01/14/world/americas/new-rules-allow-cubansto-

keep-residency-amid-travel.html?pagewanted=1&_r=0 (last visited Feb. 16, 2014).

11 See United States v. Campa, 529 F.3d 980, 987-88 (11th Cir. 2008).

12 The Case of the Cuban Spy, Fed. Bureau of Investigation (Sept. 12, 2008), available at www.fbi.gov/page2/sept08/montes_091208.html (last visited Feb. 16, 2014); see also Jim Popkin, Ana Montes Did Much Harm Spying for Cuba. Chances are You Never Heard of Her, Washington Post Magazine, available at www.washingtonpost.com/sf/feature/wp/ 2013/04/ 18/ana-montes-did-much-harm-spyingfor-cuba-chances-are-you-haventheard-of-her/ (last visited Feb. 16, 2014).

13 Curt Anderson, Guilty Pleas in Cuba Spying Case, Washington Post (Dec. 25, 2006), available at www.washingtonpost.com/wp-dyn/content/article/2006/ 12/19/ AR2006121900553. html (last visited Feb. 16, 2014).

14 Press Release, Fed. Bureau of Investigation, Former State Department Official Sentenced to Life in Prison for Nearly 30-year Espionage Conspiracy (July 16, 2010), available at www.washingtondc.fbi.gov/dojpressrel/pressrel 10/wfo071610.html (last visited Feb. 16, 2014).

15 Jim Popkin, Woman Indicted in Cuba Spy Case is in Sweden and out of U.S. Reach, Washington Post (Apr. 25, 2013), available at www.washingtonpost.com/world/national-security/woman-indictedin-cuba-spy-case-is-in-swedenand-out-of-us-reach/2013/04/25/ de27da3c-ade7-11e2-8bf6-e70cb6ae066e_story.html (last visited Feb. 16, 2014).

16 8 U.S.C. § 1101(a)(42)(A) (2012).

17 In 2012, alone, over 400,000 Cubans residing in the United States visited Cuba, some dozens of times. See Rethinking the Cuba Perk, Chicago Tribune (Feb. 16, 2013), available at www.articles.chicagotribune.com/2013-02-16/opinion/ct-edit-cuba-20130216_1_ cubanamericans- bipartisan-immigrationreform-bill-legal-status (last visited Feb. 16, 2014).

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*Alexander L. Alum, Esq., is a federal law clerk in the United States District Court for the District of New Jersey. Prior to clerking, he practiced law for two years at Paul, Weiss, Rifkind, Wharton & Garrison, LLP. He received a law degree from Northwestern University School of Law in 2010, a master's degree in international affairs from the George Washington University in 2005, and a bachelor's degree in English and Spanish literature from Rutgers University in 2003.

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Disclaimer – The views and opinions expressed in the articles included in Abogados are those of the authors and do not necessarily reflect the official policy or position of the Hispanic Bar Association of New Jersey. Any opinions and/or advise set forth in any article should not be considered or undertaken as legal advice. Any person seeking legal opinion or advice should consult an attorney.

Hispanic Bar Association of New Jersey -- P.O. Box 25562, Newark, NJ 07101

May, 20141

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