End to Cuban “Wet Foot, Dry Foot Policy”

JORDAN ISICOFF – This week President Obama announced a sea change to the two decades wet foot, dry foot policy promulgated by President Clinton.[1] Over the past 2 decades, Cubans apprehended in international waters were repatriated to Cuba, but Cubans apprehended on dry land, were not repatriated to Cuba. Instead, these Cubans were given the opportunity to apply for lawful permanent residence after being admitted or paroled into the U.S. for a one-year period. These Cubans were beneficiaries of a special law, the Cuban Adjustment Act, Public Law 89-732, enacted on November 2, 1966, which provided an expedited route to lawful permanent residence for Cuban nationals.

Though the Cuban Adjustment Act has not been repealed, the Department of Homeland Security (“DHS”) will no longer provide preferential treatment for Cubans who enter the U.S. without documentation after Obama’s repeal of the wet foot, dry foot policy, on January 12, 2017. These Cubans will be treated the same as any other foreign national unlawfully present in the U.S.

For decades, Cuban nationals have not needed to fear removal from the U.S. In December of 2014, Presidents Obama and Castro indicated that they would be working together to forge a new relationship.[2] Thereafter, Cuba’s designation as a state sponsor of terrorism was rescinded, the U.S. embassy reopened in Havana, the Cuban embassy reopened in Washington D.C., and air flights and cruise ships resumed regular operations between the U.S. and Cuba.[3] One must question, why President Obama waited until his last week in office to announce a change to a decades long policy providing special treatment to Cuban nationals and whether Trump, who has indicated that he will take a tough stance on Cuba, will continue down Obama’s path of normalization.[4] Trump has stated that he would not normalize relations with Cuban until the dictatorship demonstrates improvements to human rights.[5] Yet, with so many enterprises already engaged in business dealings with Cuba, it may be difficult to reverse course.

[1] The Day When ‘Wet Foot, Dry Foot’ Became Policy and Changed Immigration, Miami Herald (2017), http://www.miamiherald.com/news/nation-world/world/americas/cuba/article126226584.html.

[2] Charting a New Course on Cuba, The White House, https://www.whitehouse.gov/issues/foreign-policy/cuba.

[3] Id.

[4] Damian Cave, Azam Ahmed & Julie Herschfeld Davis, Donald Trump’s Threat to Close Door Reopens Old Wounds in Cuba, New York Times (2016), https://www.nytimes.com/2016/11/28/us/politics/cuba-trump-obama.html?_r=0.

[5] Trump Says Will End U.S.-Cuba “Deal” Unless It Makes a Better One, The Jerusalem Post | JPost.com (2016), http://www.jpost.com/Breaking-News/Trump-says-will-end-US-Cuba-deal-unless-it-makes-a-better-one-473884.

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