Asylum - U.s. asylum and refugee practice: cuba and haiti




From the early 1960s Cuba has played a peculiar role in the making and conduct of U.S. refugee policy. Since Havana and Washington have periodically agreed to limit Cuban emigration and immigration, both governments have conspired to deny asylum to actual and would-be refugees. Nowhere does the interplay between the domestic and foreign spheres, or the practical limitations of multilateral commitments, appear more starkly than in the control of exit and entry between the two countries. (Article 13, section 2, of the Universal Declaration of Human Rights, for example, defines the right to leave and return to one's country as fundamental; but Cuba is not a party to the Refugee Convention or Protocol.) Given the level of official U.S. rhetoric about the denial of human rights in Cuba, the implementation of selective admission for Cuban refugees must be seen as politically inspired.

There have been three notable stages in the pattern of U.S. immigration policy toward Cuba. For two decades following Fidel Castro's assumption of power in 1959, Cuban émigrés in the United States enjoyed a privileged position as refugees not subject to the prevailing immigration regulations. The legislative pinnacle was the Cuban Adjustment of Status Act of 1966 (CASA), which permitted some 130,000 Cubans living mainly in Florida and New Jersey to become "permanent resident aliens … lawfully admitted for immigration" and thus start on the road to citizenship (and, in some states, register their professional qualifications to obtain appropriate employment). Having come as refugees, these beneficiaries of CASA had originally entered under visa waivers or as parolees (at the ultimate discretion of the attorney general), and the Hart-Celler Act had just outlawed such change of status.

The second significant chapter in the Cuban refugee story began in 1980, when as many Cubans left the island in five months as had benefited under CASA. More dramatically—and with much greater political effect—these fugitives, many encouraged by Castro himself in the Mariel boat lift episode, were joined by some 35,000 fugitives from nearby Haiti in a common armada of fragile and tiny boats sailing toward Florida. The 1980 Refugee Act had just been passed; but neither group of bolseros had been formally classified as refugees, which meant that neither they nor the host communities (Dade County and Greater Miami) would be eligible for earmarked federal funds such as Medicaid and Aid to Families with Dependent Children for individuals and a support program for school districts.

As in 1966, Congress and the president agreed on a solution, in this case to accord refugee status to the fugitives—thus repeating the process that had brought almost a million Indochinese refugees into the United States. Through the 1980s the numbers of fugitives from Cuba fell back to the hundreds, then in the early 1990s, as a consequence of the deep economic crisis following the collapse of the Soviet Union, the numbers rose to thousands, with almost 40,000 intercepted by the Coast Guard and other agents in 1994 alone. Such numbers (all potential beneficiaries of CASA) led to the 1994–1995 U.S.–Cuban compromise, whereby Washington agreed to accept 20,000 refugees while Havana would seek to discourage emigration. Those Cubans denied entry (even after an appeal along the terms of the Refugee Act of 1980) were to be repatriated without reprisals. Complicated in its details (which included using the U.S. naval base at Guantánamo Bay on Cuba as a transit camp, operating the parole provisions of CASA to increase the numbers of legal permanent residents, and instituting a "visa lottery" to bridge the gap between applicants and available places), Washington's Cuban immigration policy of the 1990s confirms the general point that asylum, despite the formidable bureaucratic and judicial framework in which it operates, has been employed in practice as a means of promoting broader foreign policy goals while responding to domestic lobbies.

A similar lesson may be drawn from U.S. policy toward Haitian refugees. During the 1980s more than 20,000 Haitian boat people were interdicted (arrested) by U.S. officials at sea—and only one in a thousand was permitted to make an application for asylum. Although the UN High Commissioner for Refugees and the Organization of American States Inter-American Commission on Human Rights demurred, the U.S. Supreme Court in 1993 ( Sale v. Haitian Centers Council Inc., et al. ) upheld 8 to 1 the authority of the executive effectively to refoul such migrants despite the explicit commitments of the 1951 Refugee Convention and 1967 Protocol and the provisions of the 1980 Refugee Act. Supporters of the interdiction policy, begun in earnest by President Ronald Reagan and continued through Bill Clinton's presidency, argued that the Haitians were "economic migrants" instead of political refugees, while some critics, particularly from the Congressional Black Caucus, detected racism at work. (The 1980 post-Mariel settlement had been less favorable to the Haitian refugees.) But there was another echo of the Cuban saga: in 1998 the Haitian Refugee Immigration Fairness Act, modeled on CASA, was passed by Congress to allow more than 40,000 Haitian asylum claimants or parolees to adjust to "legal permanent residence"—while the policy of interdiction continued.

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