What’s to come of the Cuban Adjustment Act?

MIAMI — After Barack Obama and Raúl Castro on Dec. 17 announced publicly their decision that both governments should reestablish diplomatic relations after more than 50 years of political disconnect, a debate has arisen as to the possibility of revoking the Helms-Burton Act and end the economic and trade embargo.

Also, if it’s pertinent or not to retain the Cuban Adjustment Act, which allows citizens from the island, whether they have another citizenship or not, to normalize their status as residents after spending 1 year and one day on U.S. soil.

Lawyers and political analysts have made it clear that a full revocation of both laws will depend on the U.S. Congress, although the President can make decisions that amend both the embargo and the application of the Adjustment Act process.

Among many Cubans who have recently arrived in the U.S. and are considered refugees under parole, and among those who expect to emigrate soon, Dec. 17 also brought a climate of uncertainty.

If the Cuban Adjustment Act were repealed or amended, how would all those people be affected? If the Act is amended, would the people on parole stop receiving the benefits the Act implies (Social Security number, work permit, driver’s license)? Will they become undocumented in 2016?

According to the 7th Division of the U.S. Coast Guard, there was an unusual increase in the number of Cubans intercepted at sea in the last two weeks of 2014. Last December, 481 Cubans followed that route, most of them after the 17th. In December of  2013, the number was 222. Press reports indicate that, until Jan. 5, 96 more people were rescued.

On the other hand, thousands of Cubans who entered the U.S. through border points or by sea are here under parole and still have not applied under the Cuban Adjustment Act because they haven’t spent the 1 year and one day on U.S. soil. Until last November, more than 22,000 Cubans had arrived in this country and opted for the status of refugee to resort to the Act.

On Jan. 21-22, representatives of the governments of Cuba and the U.S. will hold a round of talks. One of the announced issues is migration. U.S. State Department spokeswoman Jen Psaki recently stated that the conversations will focus on “how to create a secure, legal and orderly migration between the United States and Cuba.” The last meeting on migration was held in Washington in July 2014, while the secret negotiations revealed on Dec. 17 were still going on.

By e-mail, Progreso Weekly contacted Cuban-born attorney José Pertierra at his Washington office to clarify some of the questions associated with the Cuban Adjustment Act.

PS: Please describe the process needed to repeal the Cuban Adjustment Act. How long would it take? Can the U.S. president, without the support of Congress, amend and/or regulate the Act? What type of modifications could he make?

JP: The Cuban Adjustment Act was passed by Congress in 1966 to legally protect the alleged political refugees that arrived from Cuba. Because (until 1980) there was no asylum law, there was no legal mechanism to process them in. Congress invented the Adjustment Act for the purpose of facilitating the legalization of Cubans who claimed to be refugees.

The Act gives the Executive the discretion to allow a Cuban who entered the U.S. with a visa or on parole to become a permanent resident of the United States after 1 year and one day. The Executive “may in his discretion” grant him residence.

The key is in the words “may” and “discretion.” This means that the President “may” use his discretion and presidential authority to grant residence to those Cubans. Or not. It is not automatic, as many people — including lawyers — erroneously think.

In other words, if the President decides tomorrow that it is not convenient for the United States to grant residence to Cubans who arrived with visa or on parole more than a year ago, he could change the rules of the game with a stroke of the pen, and the Adjustment Act — as we know it now — would cease to exist. The legislation would remain, but only as a shell.

Same as the Act gives the President the power to — in his discretion — grant residence to Cubans, it also says that the President has the power to — in his discretion — deny it to them. That’s called presidential authority and is the same power that Obama used to give licenses to several commercial and financial activities that had been previously banned because of the blockade against Cuba.

Another variation is for the Congress to repeal the Adjustment Act. That process would be longer and more complicated. The House of Representatives would have to approve the Act’s repeal in committee and later in the full House. The Senate would have to do the same. Then, the President would have to sign the bill. It would be quicker to disable the Act through presidential authority, because Obama can do that with a stroke of the pen.

To repeal the Act by legislative means would take one year, if there is political will in Congress, or many years, if the legislators are divided on the issue. The U.S. Congress is contaminated with politicking that has paralyzed the legislative process in general. I don’t believe that those petty politicians will be willing in the future to act on the issue. If the Adjustment Act is disabled any time soon, it will be by the President, not by Congress.

PS: If the Cuban Adjustment Act is repealed or amended, where would that leave the people who have not  spent 1 year and one day here and are trying to firm up their legal status?

JP: I am not surprised that many are thinking that the Cuban Adjustment Act can be repealed. Even some influential persons have made statements about that. For example, 10 days after Obama’s announcement, the former chief of the U.S. Interests Section in Cuba, Vicki Huddleston, wrote in The New York Times that the Adjustment Act should be repealed “to foster safe and orderly migration and to save lives.”

It is an anachronistic law. It is also an unfair law, because it grants permanent residence only to Cubans. The rest of the undocumented migrants are left out. Finally, it is a law that stimulates illegal immigration to the United States. Washington has always worried that a wave of rafters will flood the country and this law encourages people to reach U.S. soil one way or another.

It’s impossible to predict exactly what will happen if the Adjustment Act is repealed or amended. Of course, it is logical to assume that anyone who hasn’t applied for residence at the time the Act is repealed will be left unprotected. But I prefer not to speculate, because the President has the power to decide the details of any change he wishes to make to the implementation of the law.

The President can annull it, amend it, expand it, or simply leave it in place. He has that power. I expect that the Adjustment Act will be one of the topics of conversation between Cuba and the U.S. in Havana, at the meeting set for Jan. 21-22.

PS: The Cuban Adjustment Act allows refugees to upgrade their status to temporary residents and — after five years — to American citizens. If the Act is repealed, could the process of citizenship be interrupted for those who have residence? Why?

JP: After someone received permanent residence in the United States, he has nothing to worry about. Residence is, by definition, permanent. The track to possible citizenship in the future is also safe. The people who need to worry are those who have not been granted residence at the time a change occurs.

PS: There have been reports of a greater number of Cubans crossing the Straits to reach U.S. shores in the past several weeks. Do you think that the Cuban Adjustment Act can remain in effect much longer?

JP: I don’t know. Everything is possible in the vineyards of our Lord. For example, I didn’t think that the blockade could last for very long — and it lasted for 54 years. Same as the blockade, the Cuban Adjustment Act is not convenient for the United States. It stimulates illegal immigration. It is not convenient for the Cubans who ask for visas to visit relatives in the U.S., either. The fact that there is a law that rewards those who stay in this country illegally runs counter to one of the key elements for qualifying for a visitor’s visa: the applicant must prove that he has a residence in Cuba to which he plans to return.

If the U.S. consul thinks that the applicant for a temporary visitor’s visa would remain in the States, then the consul is more likely to refuse him the visa. Without the Adjustment Act, the consulate would grant more visas to Cubans. Finally, many Cubans have died trying to cross the Florida Straits on precarious boats to apply for protection under the Adjustment Act and fulfill their ephemeral dreams in the United States.

There are other ways to emigrate legally to the United States that until now have not been accessible to the Cubans, due to the blockade. For example, the H-1B and L-1 visas for professionals. Also the process known as Labor Certification allows people whose work is requested by a U.S. company to get their residence.

Until now, those paths to emigration have not been available to Cubans because of the blockade’s restrictions. When those restrictions come down, it will be possible for some of those who wish to emigrate can do so without endangering their lives and those of their children.