On January 12, 2017, President Obama announced the immediate end of the so-called “wet-foot/dry-foot” policy on Cuban immigration. The repeal is part of an agreement between the governments of the United States and Cuba, as memorialized in a Joint Statement.[1] Here’s what you need to know to understand the Cuban Adjustment Act, the wet-foot/dry-foot policy, and how repeal of the policy will impact our immigration system.

(I) The Cuban Adjustment Act: a Brief Explanation

There are multitudes of different of visas one might use to visit or immigrate to the U.S., but all of these visas fall into one of two categories: immigrant or non-immigrant visas.   Immigrant visas provide a path to lawful permanent residency (a “green card”). Non-immigrant visas allow a foreign national to visit the U.S. for a temporary and specified period of time. With few exceptions, both immigrant and non-immigrant visas are available only as a result of an applicant’s relationship with a sponsoring U.S. employer or U.S. citizen/resident family member.[2] In other words, the United States has a “closed” immigration system, and a foreign national cannot obtain a visa simply because he wants one. A notable and controversial exception to this rule applies to Cuban nationals.

In 1966, aiming to stop the spread of communism in the western hemisphere, Congress passed the Cuban Adjustment Act (“CAA”).[3] Under the CAA, any Cuban national may apply for lawful permanent residence (a “green card”) one year after inspection and admission,[4] or parole[5] into the U.S.. The CAA exempts Cubans from the usual requirement of proving a relationship with an employer or family-member sponsor, as well as the requirement that they “wait in line” for a visa.[6] In so doing, the CAA essentially provides per se political asylum to Cuban nationals, so long as applicants are otherwise admissible, without the usual requirement an individual to prove he would be subject to persecution upon returning to his country of origin. “This is a privilege afforded to no other nationality and has been understood ‘by generations of Cuban-Americans and many politicians to be an open-ended entitlement to permanent residence for all Cubans….”[7] Indeed, there has been a steady increase in immigration from Cuba. In 2015, approximately 40,000 Cubans were paroled into the U.S.. In 2016, we accepted 54,000 Cubans under parole.[8]

(II) The Wet-Foot/Dry-Foot Policy: a Brief Explanation

Since 1993, INS (now DHS) has employed the “wet-foot/dry-foot” policy. Wet-foot/dry-foot, while often used interchangeably with the CAA, is not part of the CAA. In fact, the wet-foot/dry-foot policy is not a law at all, and is outside the scope of congressional authority. Rather, it is an executive policy developed over a series of executive orders and INS (now DHS) memoranda.[9]

These executive orders and memoranda do not change the provisions of the CAA. Instead, they instruct immigration officials, border patrol, and immigration courts on how the CAA should be executed and applied. Taken as a whole, the group of executive orders and policy memoranda known collectively as the wet-foot/dry-foot policy have the following effects: (1) Any Cuban national interdicted at sea will be been returned to Cuba.[10] (2) Any Cuban national who sets foot on U.S. soil is automatically paroled into the U.S. (3) Once paroled, Cubans can apply for lawful permanent residence under the CAA even if they entered the U.S. illegally.

(III) How the End of Wet-Foot/Dry-Foot Impacts Intending Immigrants from Cuba

The end of wet-foot/dry-foot simply means that Cubans must now enter the U.S. lawfully if they wish to seek permanent resident status under the CAA.  Deputy National Security Advisor Ben Rhodes and Secretary of the Department of Homeland Security Jeh Johnson revealed that, in ending wet-foot/dry-foot, the aim is “to treat Cuban migrants in a manner consistent with migrants who come here illegally from other countries.”[11] DHS will no longer grant automatic “parole to people who arrive here illegally by land or by sea.”[12]

As part of the same Joint Statement on wet-foot/dry-foot, DHS announced the end of the Cuban Medical Professional Parole, which previously allowed Cuban medical professionals conscripted to study or work in a third country under the direction of the Cuban government to defect and enter the U.S. with parole. With the end of this program, Cuban medical professionals must now enter the U.S. through normal lawful channels before applying for benefits under the CAA.

(A) This does NOT prevent Cuban nationals from seeking resident status pursuant to the CAA. The CAA states that “any inspection and admission… regardless of the classification of admission” satisfies the requirement that a Cuban national be either paroled or inspected and admitted to qualify for CAA.[13] Cuban nationals who arrive in the U.S. and are inspected and admitted, or granted parole on a case-by-case basis, may still apply for residency under the CAA.

Moreover, Cuban nationals will continue to benefit from other specialized immigration policies. The U.S. will allow the immigration of at least 20,000 Cuban nationals each year pursuant to the so-called Cuban Lottery program.[14] If selected for the Cuban Lottery, a Cuban national is eligible to immigrate to the U.S. without an employer or immediate relative sponsor. Under the Cuban Family Reunification Program, Cubans who have applied for family-based immigrant visas which are not immediately available (i.e., there is a “line” to wait in before the visa can be approved) may be paroled into the U.S. while they wait for the visa to become current (i.e., they may be paroled in the U.S. to wait in the “line” here, as opposed to remaining abroad).

(B) The policy change does NOT affect the parole status of Cuban nationals who are already present in the U.S..

Cuban nationals who have already been paroled into the U.S. will not lose their parole status. Similarly, pending residency applications filed by Cuban nationals present in the U.S. pursuant to the CAA will not be impacted by the policy change.

(C) Cubans who arrive in the U.S. illegally, or violate immigration or criminal law in the U.S., are now subject to removal.

In negotiating an end to wet-foot/dry-foot, President Obama obtained a significant concession from the Cuban government: Cuban nationals are now subject to meaningful removal. Few people (outside of Miami) realize that our tense relationship with Cuba has prevented the U.S. government from executing orders of removal (“deportation”) for Cuban nationals. For more than fifty years, the Cuban government has refused to accept the return of Cuban immigrants ordered removed from the U.S.. Accordingly, if an immigration judge ordered the removal of Cuban national, the individual could remain at liberty in the U.S., despite the order of removal.[15] This was true even where a Cuban national was ordered removed as a result of a serious or violent crime.[16] Now, pursuant to the Joint Statement, Cuba will accept some deportees from the U.S..

Cuba has agreed to accept Cuban nationals who have been ordered removed from the U.S. if: (1) at the time DHS commences removal proceedings, less than four years have passed from the date the Cuban national left Cuba, or (2) the deportee is one of the 2,746 Cuban nationals who immigrated to the U.S. as part of the “Mariel boat lift” in 1980, or (3) when the Cuban government agrees, on a case-by-case basis, to accept the return of a Cuban national who is ordered removed from the U.S..

(IV) Cuban National Living in the U.S. with an Order of Removal? What You Should Know

If you spent four years or more inside the U.S. before an immigration judge entered your Order of Removal, this policy change will not affect you. However, DHS has made it clear that they hope to revisit and expand on the agreement with Cuba. Take advantage of your head start and consider applying for any and all relief, including but not limited to the filing of a Motion to Reopen, Motion to Vacate any criminal convictions, and/or an application for Withholding of Removal.

If you spent less than four years inside the U.S. before an immigration judge entered your Order of Removal, speak with your lawyer immediately. The language of Joint Statement leaves room for your lawyer to argue that it is not retroactive, and can only be applied to Cuban nationals ordered removed after January 12, 2017. Additionally, NOW is the time to seek any and all relief. If you believe you will be persecuted if you are returned to Cuba, you may wish to file an application for Withholding of Removal. If you entered a guilty plea upon advice from counsel that the U.S. government could not deport you as a result of your Cuban nationality, consider filing a Motion to Vacate. You may find relief under Padilla v. Kentucky, 559 U.S. 356 (2010). Similarly, if you accepted an Order of Removal because immigration counsel advised that you could not be deported, consider filing a Motion to Reopen.

(V) Donald Trump Will Likely Adhere to the Repeal of Wet-Foot/Dry-Foot

As noted supra, the wet-foot/dry-foot policy comes from memoranda and executive orders (not congress), so the decision to sign off on the Joint Statement to end the policy is squarely within President Obama’s powers as the head of the Executive Branch. Under international and U.S. constitutional law, the Joint Statement does not hold the same weight as a treaty, and is not formally binding. That said, it could be politically disastrous for an incoming president to backtrack on a significant agreement. Moreover, and probably of greater concern to the incoming president at issue, the Joint Statement that ends the wet-foot/dry-foot policy provides us with a significant benefits. To that end, back-tracking on the agreement is unlikely.[17]

[1] You can access the Joint Statement here: https://www.dhs.gov/sites/default/files/publications/Joint%20Statement%20FINAL%20-%20US%20alt.pdf

[2] Some visas, like tourist visas, or visas for individuals with extraordinary abilities, allow for self-petitioning, and allow a foreign national to apply without establishing her relationship to a family member or employer in the U.S..

[3] PL 8-732, 80 Stat. 1161 (1966); reprinted in 1996 U.S.C.C.A.N. 3792. See AFM 23.11 for a breakdown of the elements of the CAA.

For a political history of the passage of the CAA, and the development of the wet-foot/dry-foot policy, see Irreconcilable Regulations: Why the Sun Has Set on the Cuban Adjustment Act in Florida, Fl. L. Rev., Vol. 63, Issue 4, 1020 (2013) http://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1099&context=flr

[4] This term refers to “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” INA §101(a)(13)(A).

[5] An individual who is granted parole is allowed to enter the U.S. but is not granted the legal benefits associated with a formal admission. As part of the wet-foot/dry-foot policy, Cubans have been granted per se parole pursuant to the humanitarian reasons ground set forth in § 212(d)(5).

[6] The lengthy wait times for many types of immigrant visas are well known, yet few understand why these waiting periods exist. Any visa which does not derive from a foreign national’s relationship with an immediate relative has a numerical cap. (Congress, in order to prevent an unsustainable influx of immigrants, limits the number of visas which will be issued each year.) If more persons apply for a particular type of visa than the number of visas that may be issued under the numerical cap, a lag in the approval of visa applications will occur, and visas are approved on a first-come-first-served basis. (For example, unmarried sons and daughters of U.S. citizens are currently subject to a seven year wait after they apply for lawful permanent residence.) An individual’s visa application is said to be “current” when she has waited out this lag, a process often referred to as “waiting in line”, though no physical line exists.

Wait times for visa applications are published each month by the Department of State in a Visa Bulletin. You can access current and past Visa Bulletins here: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html

[7] Irreconcilable Regulations: Why the Sun Has Set on the Cuban Adjustment Act in Florida, Fl. L. Rev., Vol. 63, Issue 4, 1020 (2013) (citing The Cuban Adjustment Act of 1996: Mirando por los Ojos de Don Quijote o Sancho Panza?, 114 Harv. L. Rev., 902, 903-04 (2001)).

[8] Deputy National Security Advisor Ben Rhodes, speaking at the On-the-Record Press Call on Cuba Policy Announcement on January 12, 2017. https://www.whitehouse.gov/the-press-office/2017/01/12/record-press-call-cuba-policy-announcement

[9] If you’re curious about the political history surrounding the development of the wet-foot/dry-foot policy, see Irreconcilable Regulations: Why the Sun Has Set on the Cuban Adjustment Act in Florida, Fl. L. Rev., Vol. 63, Issue 4 (2013), available here: http://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1099&context=flr

[10] See DOJ Office of Legal Counsel, “Immigration Consequences of Undocumented Aliens Arrival in United States Territorial Waters” (1993), available at https://www.justice.gov/sites/default/files/olc/opinions/1993/10/31/op-olc-v017-p0077.pdf

[11] Secretary of the Department of Homeland Security Jeh Johnson, speaking at the On-the-Record Press Call on Cuba Policy Announcement on January 12, 2017. A transcript of the call is available here: https://www.whitehouse.gov/the-press-office/2017/01/12/record-press-call-cuba-policy-announcement

[12] Deputy National Security Advisor Ben Rhodes, speaking at the On-the-Record Press Call on Cuba Policy Announcement on January 12, 2017. https://www.whitehouse.gov/the-press-office/2017/01/12/record-press-call-cuba-policy-announcement

[13] See AFM 23.11(b)(2), relying on Matter of Alvarez-Riera, 12 I&N Dec. 112 (BIA 1967).

[14] Joint Statement, paragraph 3. https://www.dhs.gov/sites/default/files/publications/Joint%20Statement%20FINAL%20-%20US%20alt.pdf

[15] Cubans living in the U.S. following an order of removal were placed under an “Order of Supervision”, and released. The Order of Supervision simply required the individual to report to DHS from time-to-time, usually once every six months, year, or two years.

[16] According to the Miami Herald, more than 2,000 convicted murders have been allowed to remain in the U.S., despite having been ordered removed, as a result of their Cuban nationality. http://www.miamiherald.com/news/politics-government/article64863992.html

[17] While Donald Trump has not spoken extensively on wet-foot/dry-foot, he did indicate, in a February 2016 interview with the Tampa Bay Times, that he does not view the policy as one which is fair. The interview is available here: http://www.tampabay.com/news/politics/stateroundup/exclusive-interview-donald-trump-talks-cuba-oil-drilling-and-badly-hurt/2265296