Ending the Cuban Adjustment Act?

Passed in 1966 and amended in 1996, the Cuban Adjustment Act (CAA) is a federal law whose practicality and provisions are often vigorously debated. It was originally designed to help political refugees fleeing Castro’s communist regime. Since this past summer when U.S.-Cuba relations began a new chapter in their lengthy history, many are calling for the reform or even complete repeal of the CAA. The main point of controversy is that the CAA unfairly allows Cubans who make it onto U.S. soil to stay.

The number of Cubans entering the U.S. has been rising steadily over the last 5 years. According to U.S. Customs and Border Protection, more than 43,000 Cubans arrived in the U.S. via various ports of entry in the 2015 fiscal year. That’s an increase of 78 percent over the 2014 fiscal year when the total number of Cuban immigrants was just above 24,000. Under the CAA, Cubans who reach the United States may remain in the country and apply for permanent residence after one year. Those who fail in their attempt and are captured at sea are returned to Cuba. Some argue that this “wet foot, dry foot” policy has the effect of giving Cubans preferential treatment since they are not required to come through a port of entry. Many immigrant groups have much stricter guidelines for obtaining legal residency than those applied to Cubans.

Furthermore, unlike asylum seekers from other countries, Cubans can make trips back and forth to their homeland without jeopardizing their permanent status applications. One side of the argument claims that if Cuban refugees feared persecution in Cuba, they should not wish to travel there after being granted legal U.S. residency. The other side notes that re-establishment of diplomatic relations between the countries does not mean an end to the oppressive human rights abuses that cause many Cubans to flee in the first place.

Proposed modifications of the CAA frequently involve ending or delaying the back-and-forth travel to prevent abuses rather than removing the protections that so many Cubans turn to in order to get away from an oppressive regime. Those who want or need to get out won’t stop trying if the CAA is repealed. According to a researcher who studies the Raul Castro government, ending the CAA will only serve to create “another group of immigrants in the shadows. That is not good for the United States and is not good for Cuba.” A fresh perspective on the subject of granting Cubans the uncapped ability to migrate to the U.S. when those in equal, or worse, conditions are denied refuge is to stop asking “Why only Cubans?” and instead ask “Why not all nationalities?” Studies have shown that immigration does not lead to significant long-term increases in unemployment or wage decreases for U.S. natives. Extending the spirit of the CAA and reducing migratory barriers for all those in search of a better life does not have to have negative results.

Dan Carman is a founding attorney of CF Abogados in Lexington, Kentucky. A member of the National Trial Lawyers Top 100, he is an experienced immigration lawyer who honed his skills in the United States Marine Corps serving as defense counsel, prosecutor, legal assistance attorney, and in-house counsel for an infantry battalion. He is admitted to practice in all state courts in Kentucky, the United States District Courts for the Eastern and Western Districts of Kentucky, and the United States Court of Appeals for the Sixth Circuit.