TRIAL TALK - OCTOBER 1994

MASS ASYLUM, TWISTED JUSTICE
By Robert G. Heiserman

Trial lawyers are often faced with overwhelmingly complex situations involving rapidly changing circumstances. Remedies must be molded to fit into complicated statutory frameworks. Trial lawyers are all too familiar with such challenges as they press for the very best outcomes for their clients. The recent Cuban exodus dramatically illustrates the factors of flight, pursuit motivation and mercy tangled within the parameters created by legal rules, rhetoric and political influences.

All of these factors are at play in the story of the Cuban "boat people." It is a story hauled before us on television and in the press, which is so immense as to, be almost impossible to reduce to human terms. It is, however, a story of mythic proportions in the history of the United States. Americans have a love/hate relationship with the huddled masses. We raise the refugee up and tear the illegal alien down. Nevertheless trial lawyers observing this drama must abandon these myths and balance the demands of the law with their intuitive sense of justice and the demands of the heart.

This primer on the twists and turns of Cuban - American immigration policy will create a context for analysis of the vents unfolding in the Straits of Florida and on the Six O'Clock News.

THE BIRTH OF THE U.S. CUBAN IMMIGRATION POLICY

U.S. Cuban immigration policy has been driven by persistent political and personality clashes between the United States Government and Cuba's premier, Fidel Castro. Mr. Castro overthrew the Cuban government headed by President Batista on January 1, 1959. Prior to 1959, there was little immigration to the U.S. by Cubans. The 1950 census recorded only 30,000 foreign-born Cubans in the U.S. only 8,000 of which lived in Florida. By the 1960, the number of foreign-born Cubans in the U.S. jumped to 80,000. (1)

Diplomatic relations with the Castro government were severed in January 1961. This was followed in 1962 by the attempted invasion of Cuba, known as the Bay of Pigs. Between 1960 and 1965 the CIA entered into at least eight plots to assassinate Fidel Castro, ranging from the use of high-powered rifles to poisoned cigars. (2) Meanwhile, commercial air travel continued uninterrupted until the October 1962 Cuban Missile Crisis. This history of open hostility set the state for the development of U.S. immigration policy regarding Cuba. The political ambitions lurking behind this policy created a hodge podge of executive orders, preferential legislation and distorted interpretations of immigration laws to enable the admission of otherwise unqualified Cuban migrants. (3)

EXTENDED VOLUNTARY DEPARTURE AND PAROLE

The first device used to allow anti-Castro Cubans to legally immigrate to the U.S. was Extended Voluntary Departure (EVD). This was used between 1960 and the passage of the Cuban Refugee Adjustment Act of 1966 (more on this later). EVD was a humanitarian measure used to grant temporary relief from deportation. EVD did not have a statutory mechanism but was within the Executive's discretion. Under EVD all nationals of a particular country, who arrived in the U.S. prior to a certain date and who, while ineligible for asylum, were fearful of returning to conditions in their home country were allowed a temporary reprieve from deportation.

EVD was used in conjunction with another immigration device known as parole. Parole was fashioned by immigration officials to allow for the temporary entry of otherwise excludable aliens. The concept was developed to allow an alien to travel in the U.S. away from the border yet remain constructively at the border. This allowed the INS to process the alien through exclusion procedures, rather than the more complicated deportation procedures. In addition the INS insured that the alien kept the burden of proof. In exclusion proceedings an alien's silence is enough evidence to render him or her excludable. Parole was never intended to be used for groups of individuals. It was designed to insure that an alien with an emergency could tend to that emergency while out of detention. Eventually parole was used to facilitate the processing of excludable aliens who were desirable to the U.S. government, such as Cubans.

It was EVD that came to the rescue during the first instance of mass asylum from Cuba. During the Johnson Administration in September 1965, Fidel Castro announced that any Cubans who were discontented and wished to leave Cuba were welcome to leave from the port of Camarioca. For a month more that 5,000 Cubans left Cuba in small boats and rafts of all sorts. As the crisis worsened, the Johnson Administration proposed an airlift of all refugees desiring to leave Cuba. Castro agreed to allow one flight per day. This program was known as the Freedom Flights and lasted until 1973 bringing 265,000 Cubans to the U.S.

Extended Voluntary Departure served its purposed through the early sixties. It was replaced by the Cuban Refugee Adjustment Act of 1966. (4) Congress perceived the need for a statutory mechanism to allow easy processing of the steady flow of Cuban migrants. Under the following conditions of the Act, which is still in effect, Cubans have been allowed since 1959 to become lawful permanent residents: (a) they must have been admitted, inspected or paroled before January 1, 1959; and (b) must reside in the U.S. one year. The only additional requirement is that the migrant be admissible for permanent residence. The Act includes the spouse and children of the migrant, if they reside together in the U.S. Once exception contained in the legislation is that the normal exclusion ground applicable to individuals who are likely to become a public charge is now inapplicable.

The benefits of the Cuban Refugee Adjustment Act of 1966 are discretionary. Even so, according to an INS official, 57,700 Cubans benefited in 1991 under the Act. The rationale for the continuing use of the Act is that most Cubans are eligible for Asylum and the Adjustment Act is easier to administer than the asylum process. In recent years in the advent of the Refugee Act of 1980 and the Mariel Boatlift there has been much confusion and discussion about the continuing use of the Cuban Refugee Adjustment Act of 1966. President Clinton is currently facing the same dilemma his predecessors faced in years past.

THE REFUGEE ACT OF 1980 AND THE MARIELITOS

In 1973 Castro cut off the Freedom Flights begun by President Johnson. Between 1973 and 1980 there were few migrants making the journey between Cuba and the United States. On March 17, 1980 the Refugee Act of 1980 was signed into law. The goal of this legislation was to create an orderly process for determining refugee status and processing asylum applications. (5) It also explicitly limited the use of parole to refugees with compelling reasons and only on a case by case basis. (6)

It was at this moment in U.S. immigration history, on March 28, 1980, that a bus carrying Cuban citizens intentionally crashed into the gates of the Peruvian Embassy in Havana. The passengers claimed asylum. Soon 10,800 Cubans sought refuge at the Peruvian Embassy. President Carter announced that the U.S. would accept 3,500 if they were first processed in Costa Rica. Not to be outdone Castro took charge of the situation and announced that any Cuban who wanted to leave could do so by boat through Mariel harbor. Presdient Carter proclaimed that the United States would welcome the Cubans with "an open heart and open arms." The result was the Marial Boatlift that eventually brought 150,000 Cubans to Florida.

Unfortunately, not all the migrants were admissible to the U.S. Some of the Marielitos had criminal records or mental problems. These migrants were detained indefinitely. Displeased by this policy migrants rioted at detention facilities at Elgin Air Force Base and Ft. Chafee in May and June 1980. Amidst the general confusion surrounding the massive influx of Cuban migrants, there was confusion surrounding what legal authority was controlling: The Refugee Act of 1980, or the Cuban Refugee Adjustment Act of 1966. In addition, a significant number of Haitians arrived at the same time as the Cubans.

President Carter took the initiative and granted the migrants who entered between April 21, 1980 and June 19, 1980 "Cuban-Haitian Entrants [status pending]" status for six months. This status was basically a special order of parole that included employment authorization. President Carter allowed Congress six months to enact legislation to further processing of the migrants. Although legislation was introduced Congress did not take action prior to adjournment in 1980. Beginning in December 1984 the INS proceeded to process the Marielitos under the 1966 Act.

Another development in December 1984, was the agreement between Cuba and U.S. to the return of 2,746 Cubans not eligible for admission because of criminal or medical grounds. This cooperative measure was suspended May 20, 1985 by Castro to protest America's broadcasts of the Voice of America. It broadcasts news, anti-Castro commentary, features, radio drama and quotations from the Cuban patriot Jose Marti. It has been reported that Castro acted not out of anger toward the subject matter of the materials broadcast but at the use of Jose Marti's name. (7) Jose Marti was a revered Cuban writer and patriot. He led the Cuban revolution against the Spanish who ruled Cuba until 1898.

By June 1987, there were still 3,500 Mariel Cubans in detention in federal facilities. At this time the INS decided to reinstate a program to systematically review the cases of the Cubans held in detention. The Mariel Cuban Review Program held out hope to the detainees of possible release to immediate families or halfway houses. By November 1987, several hundred had been approved for release.

On November 30, 1987 Cuba and the U.S. agreed to reinstate the 1984 agreement for return of the detainees to Cuba. Cuba agreed to accept the return of the inadmissible refugees, while the U.S. agreed to accept 3,000 political prisoners and resume normal immigration procedures with Cuba. The announcement of this agreement sparked riots in the INS detention facility in Oakdale, LA on November 22, 1987. Cuban inmates fearful of returning to Cuba took control of the facility - seized twenty-six hostages and set fire to most of the facility's 14 buildings. The uprising lasted nine days. A similar uprising occurred in the federal detention center in Atlanta, GA where Cuban inmates held eighty-nine hostages for eleven days. Negotiations produced an agreement by the Justice Department for fair and expeditious review of the cases of detainees to determine whether to parole or send them back to Cuba. (8) As of this date, there are still 1,500 Mariel criminals in federal prisons in the United States. (9)

DETENTION AS AN IMMIGRATION POLICY

Detention is a process that has its own interesting history which is highly relevant to the situation facing President Clinton today. From 1892 to 1954 the U.S. maintained a policy of detention upon arrival. Sometimes detention was brief, sometimes prolonged. In 1954 detention was abandoned except in situations where there was a risk that the alien might abscond on her freedom of movement could be adverse to national security. This policy was suspended in 1980 and replaced with a policy of detention on an ad hoc basis.

In 1981 a new wrinkle was added to the policy of detention. Interdiction was introduced as a means to deal with an influx of Haitian migrants. The Alien Migrant Interdiction Program was implemented by Presidential Proclamation on September 28, 1981. (10) The Program implemented the terms of an agreement between U.S. and Haiti under which Coast Guard personnel are allowed to hoard Haitian flag vessels. If they determine that an offense against U.S. immigration laws is "being committed." Haiti agreed to prosecute "illegal traffickers" returned by the U.S., but not non-traffickers. The United States agreed that it did not intend to return to Haiti any Haitian migrants whom the United States authorities determined to qualify for refugee status.

Between its implementation in 1981 through 1991, 24,000 Haitians were interdicted under the Program. Interdiction was enforced by the U.S. Coast Guard who intercepted Haitian boats, transferred the passengers to Coast Guard vessels and destroyed the boats. On board interviews were provided to determine eligibility for asylum. Those found to be likely refugees were taken to Guantanamo Bay for asylum processing. (11) Of 22,940 Haitians interdicted between 1981 and 1990 only 11 were allowed entry to the U.S. to apply for asylum. The rest were forcibly repatriated to Haiti. (12) The numbers of Haitians drastically increased following the overthrow of President Arstide in September 1991. Between September 1991 and May 1992 34,5000 Haitians were interdicted. Forced repatriation was temporarily halted by order of a federal court in Haitian Refugee Center, Inc. v. Baker 953 F.2d 1498 (11th Cir. 1992). This measure was short lived as the U.S. Supreme Court upheld the policy. (13) In February 1992 the House of Representatives passed legislation to suspend Haitian repatriation. (14) The Senate however failed to act.

In May 1992 President Bush issued an executive order instructing the Coast Guard to interdict Haitians and forcibly repatriate them without any screening for asylum. (15) The rationale given by the Bush Administration was that the policy was required to deal with a dangerous and unmanageable situation at Guantanamo, and to protect the lives of Haitians leaving in unseaworthy boats. The dangerous situation at Guantanamo was caused by the overcrowding due to the processing of Haitian asylum claims. Haitians who were interdicted and returned to Haiti were encouraged to apply for asylum in Haiti. President Clinton has continued this policy.

Meanwhile, Haitians and Cubans who reach the United States are routinely detained n the Krome Detention Facility outside Miami. A 1992 Government Accounting Office statistic demonstrates the disparity in treatment between Cuban and Haitian detainees. The average length of stay at Krome for Cubans was sixteen days, for other nationals, eighty-three days, and for Haitians, one hundred and one days. (16)

THE CURRENT CRISIS

As of August 1994 Cubans and Haitians picked up at sea were treated differently. One reason for this was that the U.S. has no agreement with Cuba to repatriate Cuban migrants. Another reason was the continued use of the myth that Cubans were fleeing political repression while Haitians were fleeing economic hardship. Over the years, Congress has passed legislation in an attempt to put Cuban and Haitian migrants on a more equal footing. (17) However, once again, for the third time since 1965 the threat of mass asylum is serving to garner immigration benefits for Cubans that are not available to other foreign nationals.

The current situation began in July 1994 with the death of thirty-two Cubans. The tugboat they hijacked was rammed and sunk by a Cuban patrol boat. Tensions escalated on August 4, 1994 when a Cuban police officer was killed in conjunction with the hijacking of a ferryboat by Cubans fleeing Havana Bay. The following day thousands of Cubans rioted as government authorities retrieved the ferry. As a result of this unprecedented outcry, Fidel Castro declared that if people wanted to leave so badly that they would hijack boats, he would let them go.

On August 18, 1994 in a surprising reversal of years of precedent, the U.S. announced that the Coast Guard would interdict the fleeing Cubans and detain them at Guantanamo Bay. As of September 11, 1994, 30,304 Cubans had been interdicted. Guantanamo Bay's population of refugees is approaching 40,000. Twenty-six thousand of the detainees are Cuban and fourteen thousand are Haitian. Conditions in the camps are primitive as best. Only one camp has running water. The Cuban and Haitian camps are separated by several miles of scrub brush. In mid-September 2,000 Cuban detainees had managed to breach the wire enclosure of the camp and 200 Cuban detainees were peacefully occupying a downtown area of the base. (18) On September 12, 1994 one of these protesters died while attempting to escape. (19)

Conditions such as these combined with the specter of the 1980 Mariel fiasco led the Clinton Administration to seek a dialogue with Fidel Castro. Although Castro insisted that the talks include the subject of the 32-year-old trade embargo, President Clinton insisted that the talks be limited to the signing of an agreement on the "boat people" crisis. Like his predecessors, President Clinton made concessions to Mr. Castro that once again place Cubans on a different footing than other foreign nationals.

THE SEPTEMBER AGREEMENT

The details of the United States-Cuban agreement are set forth in a Joint Communiqué issued September 9, 1994. Under the agreement, the U.S. will expedite legal entry of Cubans in exchange for Cuba stemming the flow of illegal entry. This will be accomplished through a combination of normal U.s. immigrant visa processing and a relaxation of some immigration rules. In 1993 only 2,700 immigrant visas were granted although the legal ceiling for Cubans visas was 27,485. Under the current agreement the U.S. will grant entry to at least 20,000 Cubans every year. In addition to these 20,000 the U.S. will allow all of the 19,700 Cubans on the waiting list to jump the line and receive visas this year. (20) Normal processing of immediate family petitions will continue.

Portions of the agreement conflict with existing U.S. immigration law which operates based on a ceiling number for issuance of immigrant visas set by Congress. Prior to the Joint Communiqué the ceiling for Cuba was 27,485 visas per year. This Communiqué sets a floor of 20,000 visas per year. It is not clear under what circumstances these 20,000 immigrants will qualify for the quota number of visas. The Attorney General stated that the number will be achieved through a variety of measures, including normal immigrant visa and refugee processing and making up the difference through the use of the parole authority of the Attorney General. (21) In other words if only 10,000 immigrant visas are approved, and 5,000 asylum applicants are granted, the Attorney General will be obliged to parole 5,000 unqualified Cubans into the United States.

This agreement is sure to create an outcry from other visa seekers. Currently there are 3,442,000 persons on the waiting list for visas. Some have waited 10 years or longer. Their petitions have already been reviewed and approved. Non-Cubans will have just cause for complaint as they face months and years of waiting while unprecedented accommodations are made only for Cubans. In addition many Cuban-Americans in exile for 35 years have become more American and less Cuban. Just like other Americans they fear the influx of thousands of jobless people. Many Cuban-Americans now see a greater need to cure Cuba's economic problems and end the real reason that Cuban migrants come to America.

The 30,000 Cubans stranded in Guantanamo Bay must make a choice as to their future. The Joint Communiqué allows for the voluntary return of the detainees to Cuba. Those who refuse to return face a bleak future of detention with little hope of admission to the United States. Meanwhile, the United States faces the looming possibility that repatriation will no longer be feasible for Haitian migrants. Haitian President Aristide has informed President Clinton that he will allow the interdiction treaty to expire and terminate on October 6, 1994. (22) The population at Guantanamo could skyrocket if interdiction continues. As of September 1, 1994 Panama agreed to hold 10,000 Cubans for 6 months in U.s. military bases. Honduras had expressed willingness to take 5,000. It is unknown what will happen at the end of six months.

CONCLUSION

It seems clear from the history of Cuban-American immigration struggles that U.S. authorities should take Fidel Castro seriously when he says, "Revolutionaries never abandon the battlefield." (23) Sometimes it takes time to process and decipher the events of the day. The Joint Communiqué continues historical U.S. policies of bending the rules to facilitate immigration for Cubans. The new Cuban interdiction policy represents a break with the historical treatment of Cuban "boat people". Immigration lawyers have long sought equal treatment for Haitians and Cubans. Unfortunately, at this point, the only equal treatment Haitians and Cubans will receive will be in the detention camps at Guantanamo Bay.

FOOTNOTES

1. R. Daniels, Coming to America 373 (1990).
2. "Alleged Assassination Plots Involving Foreign Leaders." S. Rep. No. 94-465, 94th Cong. 1st Sess. 71 (1975).
3. The term migrant is used to refer to Cubans who flee to the United States. Cuban migrants often do not meet the stringent definition of "refugee" set out in the Refugee Act of 1980. Act of Mar. 11, 1980, Pub. L. No. l 96-212. 94 Stat. 107 (1980).
4. Act of Nov. 2, 1966, 80 Stat. 1161 (as amended by Refugee Act of 1980. 94 Stat. 102, March 17, 1980).
5. The definition of a "refugee" includes the requirement of "persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion." INA sec. 203. Migrants fleeing solely because of poverty are considered "economic refugees" and do not qualify for asylum.
6. INA sec. 212(d)(5).
7. T. Szulc, Fidel: A Critical Portrait, 29 (1986)
8. Cuban Inmates End Uprising, 64 Interpreter Releases 1331 (12/7/87).
9. "A Slow Motion Mariel", 71 Interpreter Releases 1091 (8/122/94).
10. Presidential Proclamation 4865.
11. Guantanamo Bay is a U.S. Naval base originally leased from Cuba in 1903. Despite many efforts, Cuba has not been able to oust the U.S. from this facility. It is approximately 35 square miles in size.
12. INS Revises Policy for Screening Haitians Interdicted at Sea, 68 Interpreter Releases 793 (7/1/91).
13. Haitian Refugee Center, Inc. v. Baker, 112 U.S. 1245 (1992).
14. Haitian Refugee Protection Act of 1992 H.R. 3844.
15. Executive Order 12807, May 24, 1992.
16. GAO Examines INS Detention Policies, 69 Interpreter Releases 772 (6/29/72).
17. See INA 245A, Cuban/Haitian Entrants legalization program, and Section 2(¡) of Immigration Technical Corrections Act, waiving grounds for exclusion based on fraud or misrepresentation for Cuban/Haitian aliens.
18. T. Golden, "Cuba Begins to Cut the Flow of Migrant Rafts" The New York Times, 9/12/94. P. A4.
19. "Cuban is Killed in Accident During Protest atGuantanamo" The New York Times. 9/13/94. P. A4.
20. The Attorney General estimates that only 4,000 or 6,000 people are actually waiting for a visa. "Attorney General's Talking Points United States/Cuban Migration Talks." 9/9/94.
21. "Attorney General's Talking Points." P 1.
22. March 18, 1994 letter from President Aristide to President Clinton.
23. L. Rohter, "Best of Enemies" The New York Times, 8/28/94, p. 1 E. Spoken by Fidel Castro in Colombia in early August.

Robert G. Heiserman practices immigration law in Denver, Colorado. He is Trial Talk's Immigration Law Editor. He is an adjunct professor at the University of Denver.

This article was researched and prepared by Barbara Lutes, a May 1994 graduate of the University of Colorado School of Law. Ms. Lutes is employed in the office of Robert G. Heiserman, Denver, Colorado. The firm limits its practice to immigration and nationality law.