Wednesday, February 2, 2011

Illegal Immigrants from Cuba: Preferential Treatment to get Green Card

               Preferential Treatment of Cuban Migrants, Illegal and Legal
On  Jan. 12, 2010, Janet Napolitano, the secretary of homeland security, made the Obama administration’s policy clear: “It is important to note that TPS  (Temporary Protected Status) will apply only to those [Haitian] individuals who were in the United States as of January 12, 2010. Those who attempt to travel to the United States after January 12, 2010 will not be eligible for TPS and will be repatriated.” 

“In FY 2008, there were 49,500 Cubans who became legal permanent residents( LPRs)--surpassed only by LPRs from Mexico, China, India and the Philippines. Yet very few Cubans have arrived in the United States through the legal avenues proscribed by the INA.”
(Ruth Ellen Wasem, “Cuban Migration to the U.S.: Policy and Trends” Congressional Research Service, June 2, 2009.

The reasons for the differences in the way Cubans are treated from other illegals is the Cuban Adjustment Act of 1966, Cuban-U.S. migrant agreements of 1994 and 1995, and law added in 1996. The 1966 Act permitted any Cuban who had been in the U.S. for a year and a day, regardless of how they got here, to have their status adjusted to that of a Legal Permanent Resident. Through the use of political power by U.S. Cubans, they have successfully defeated every attempt to repeal the 1966 Act and have been able to add further preferences for Cuban immigrants, whether legal or illegal. It is also a matter of class and resources; Cubans in the U.S. are able to pay thousands of dollars to have traffickers bring Cubans here illegally, to give them jobs, and help them get U.S. government benefits, while most illegals from other countries do not have the same resources or influence. Class and politics matter in immigrants matters, as Napolitano’s remarks vividly point out

Rather than applying the laws that are set forth in the Immigration and Nationality Act, the U.S. treats Cubans as refugees, thereby allowing temporary entrance into the U.S., and then under the 1966 Cuban Adjustment Act, they can apply for permanent residency and eventually citizenship under expediated process designed for them. 

While discussion of migrants is an everyday event, the failure to fully discuss policies of the U.S. toward Cuban immigration is a void that needs to be corrected. While we believe the Cold War is over, there are many who want to keep it alive, if downsized, for political, partisan and policy reasons.  On January 15, 2011, we have an example of this tendency in an article in the Wall Street Journal called, “New Prize in Cold War: Cuban Doctors” about the U.S. program to encourage defections of doctors serving in foreign countries.  Not only is it an encouragement to lure illegal immigrants--the doctors do not have documents from Cuba allowing them to travel to the U.S.-- but it affects our foreign policy and diplomacy. 

The U.S. takes Cuban doctors from third world nations where they are practicing medicine, thereby removing care givers from countries that badly needs them, but it also points up the punitive nature of our foreign policy toward the sovereign nation of Cuba, and an affront to the governments of the countries that host the doctors. But this is only one of a myriad number of policies that give preferential treatment to Cubans of all types, including illegal immigrants, and demonstrate to other nations how blatantly political --and grossly unfair-- the administration of our immigration policies are. Furthermore, in January of 2011, the U.S. announced it would be expelling Haitians who were here illegally, but had been given a temporary reprieve because of the earthquake in that nation. But Cubans who arrive here illegally are given parole ( temporary permission to enter the U.S.), and all types of benefits, as I will discuss later. 

In December 2010, Bernard Pastor, an 18 year old resident of Cincinnati, was in jail for over a month in Morrow County, Ohio, waiting to be deported to Guatemala: his crime? He is an illegal immigrant because he was brought to this country when he was 3 years old by his parents who entered the country illegally.  When he was involved in a minor traffic accident, he was arrested and ordered to be deported. Fortunately, Bernard’s case was reconsidered after Ohio congressmen intervened, and he was released from jail, but his case will come up again in a year. Bernard was, according to all accounts, a model student and citizen. At the same time Bernard was being locked up, Congress was debating the Dream act that would allow children who were in the U.S. illegally before they were sixteen to be allowed to stay if they would enroll in higher education or join the military. While the bill passed the House, it was filibustered in the Senate, and the administration could not get enough votes to invoke cloture.

Contrast the situation of Bernard and the millions of illegal children who would be allowed to remain in the U.S. under the conditions of the Dream act of non-Cuban children with Cuban children who enter the country  illegally. Cuban children enter the country every day with their equally illegal parents, but the treatment is 180 degrees different from others who do so. The parents and the children are not put in jail or deported, but, on the contrary, receive enormous amounts of benefits, even exceeding, in fact, some of the benefits U.S. citizens are entitled to in the case of visiting Cuba.

 Cuban illegals can show up anywhere on land in the U.S. and immediately be allowed to enter the country. They get a work permit, social security card, public assistance for food and accommodations, medicare if eligible or medicaid. They are not, as  refugees are, put in jail until their case is decided, but are immediately paroled, and after a year, can apply for permanent residency ( green card) and citizenship after 5 years. Children can go to school without fear of arrest, and college age children can enter the universities or armed forces without having to spend two years in a college or the military.
And remember this: each new Cuban immigrant is a potential voter added, after citizenship, to the already extremely powerful Cuban lobby and political and economic machine.  

                            The Cuban Adjustment Act of 1966
When Batista was overthrown in 1959, he and his officials fled to the United States, and other Cubans soon followed. Until 1966 hundreds of thousands of refugees were living in a legal limbo because they had expected to be returning to Cuba. When it was clear this was not going to happen, President Johnson pushed through congress a law that allowed any Cuban who lived in the country for a year and a day to apply for permanent residency (green card). This allowed several hundred thousand Cubans to immediately get a green card because they had already been living here for years, and it allowed any Cubans coming there after to have the same right, and it did not matter if they came legally or not. The law became a part of the Cold War battle of the U.S. against Cuba. The rationale was citizens were being oppressed in Cuba, and could come here as refugees. Until 1994 any Cuban who was picked up at sea was brought to the U.S. and allowed to stay here even though they were illegals. 

In 1994-95, Clinton and Castro, in order to stop large number of Cuban immigrants coming to the U.S. illegally, concluded a deal that would allow 20,000 Cubans a year to emigrate to the U.S., but those picked up at sea would be returned to Cuba or a third country (this group is designated as wet feet); those getting to land anywhere in the U.S are called “dry feet” and cannot be deported. The Cuban government, however, opposes the dry feet policy, and believes it to ba a violation of the agreements.

 Rather than stopping the flow of Cubans to the U.S. as it was designed to do, it has slowed down the number of illegals entering, or attempting to enter, the U.S., by sea but increased the numbers coming through Mexico: these are called “dusty feet”. 

In fiscal 2007, 13,014 illegal Cubans immigrants were cleared into the U.S., 11,278 of them in Texas alone, and other states cleared the remainder to enter the U.S. under parole, which, after a year and a day, allows the Cuban to apply to be a legal permeant resident.  An additional 2868 illegals arriving by sea were returned to Cuba in the same year, and in 2008, the number of illegals entering the U.S. dropped to around 11,000. In FY 2010, 2088 Cubans were captured at sea and returned to Cuba. Mexico has begun to capture and return Cubans trying to enter the United States from Mexico.

But the result of the preferential policies for Cubans is adding tens of thousands of permanent residents to the U.S., and thousands of these are migrants who arrived here illegally along with tens of thousands more who received preferential treatment to get here legally. In 2008, as mentioned previously, 49,500 Cubans were given permanent residency. 

We can now exam the specifics for illegal preferences and examine the preferential treatment for those who arrive here legally.

 As Ruth Ellen Wasem points out in her 2009 article about Cuban migrants arriving here, they are treated as refugees, and this makes them eligible for many benefits given to true refugees and asyllees. In fact, Cuban benefits overall go well beyond the way refugees and asyllees are treated because of the 1966 Cuban Adjustment Act and other provisions.  In the following analysis, we will deal with illegal and legal (those with Documents) migrants in different sections.

                                      Illegal Entrants

1. Except for Cubans, in order to enter the U.S. , the person must present themselves at a port-of-entry, that is, a border crossing, airport or seaport where there are immigration and customs agents. As explained, this is not a requirement for Cubans; as long as they get on dry land anywhere, they are paroled and immediately released. In November, 2009, thirty three Cubans--27 adults and 5 children landed at a canal in the middle of a swamp 6 miles from the Turkey Foot Nuclear Power Plant in Florida. They called Immigration and were paroled into the U.S. where they can live legally and after a year apply for permanent residency (a green card). The children will be able to go to school or university without fear of being deported even though they entered illegally with their parents. They have the same legal status as their parents. Compare with Bernard Pastor or with those million of children who are in constant fear of deportation because their parents brought them here at a young age.

2. An illegal captured anywhere trying to enter the U.S. can be given expedited treatment which means they do not have access to courts but can be immediately deported. This law does not apply to Cubans; they are exempt from expedited removal by law. In cases where Haitians and Cubans have been captured together, Haitians have been deported while the Cuban has been paroled into the U.S.

3. An illegal alien under orders of deportation must be held in jail until deported;except for Mariel boat people, this is not true of Cubans.

4. There is often a claim that illegal aliens should adhere to a law that requires them to return to their country of origin, apply for admission and then wait their turn. Cubans do not have t return to their country of origin to apply for permanent residency. Even when the U.S. suspends temporarily the deportation of illegals, as was recently done for Haitians because of the earthquake, it was made clear by Hilary Clinton that the suspension was for 18 months, and illegal Haitians could not ask for permanent residency based on the suspension.

5. Besides being eligible for medical and social services, the Cuban illegal is not penalized for being a public charge when applying for permanent residency;  this is not true for others.

6. But, one might proclaim, Cubans are coming here because of political oppression and must be treated differently. There are all kinds of arguments against this claim, but one stands out as a very salient rebuttal: the Cubans who come here, illegally or not,  can and do return to Cuba for visits and other reasons once they get permanent residency or citizenship. In 2009, two hundred and ninety six thousand Cubans returned to the country. The further irony is that while a former illegal Cuban can go to Cuba if they have relatives living there, a natural born non-Cuban U.S. citizen cannot go. You would hardly return to a place voluntarily if you had been persecuted previously. Cubans Immigrate for economic reasons just as others do. 

7. Recently Cubans who were born outside Cuba of Cuban parents, and have never been to the island, but live in a country where they are citizens, have gone to a Cuba consulate in their home country and gotten a birth certificate as a dual citizen of Cuba. They then come to the U.S. and claim political asylum under the 1966 act, and are granted legal status to be admitted. This is true only for Cubans because a person who has been settled in another country cannot claim political asylum from the country of origin. Within the past few months, e have the additional preference given to Cubans who were released from jail and went to Spain are now “being welcomed into the U.S.”

                                                          Legal Immigrants

Cubans coming to the U.S. with legal documents also receive all types of preferential treatment. 

1. Because of the agreements between President Clinton and Castro in 1994 and 1995, the U.S. will grant a minimum of 20,000 visas a year to Cubans applying for them. Five thousand of these will be awarded on the basis of a lottery that any Cuban between the age of 18 and 55 can apply for. The 20,000 can bring spouses and children under 21.

2. The U.S. did not believe enough Cubans were applying for visas and adopted a provision that would allow for those in the U.S. to bring in members of their family such as brothers and married children, categories that previously were not included in the family members that could be brought in. This is called the family  reconciliation act. These members do not count against the quota allowed for visas under the agreement between Castro and Clinton. There is no limit on the number of these family members that can be brought here. In an National public Radio story of January 12, it was pointed out that Haitians had to wait 7 to 10 years to bring in family members while it was about 3 years for Cubans.

3. Every year the President decides how many refugees can be admitted t the U.S. In 2018 Bush set the quota at 80,000 for that year, and Obama did the same the following year. Cubans, as in other years, along with Iraq and Russia, could apply for refugee status previously by going to the U.S. Interest section in Cuba. In 2009, there were 5000 slots open for all of Latin America, and Cuba received a large quota. Moreover, in order to get more Cubans to the U.S., the rules were changed to allow Cubans to be transported to the U.S. while waiting for decisions on entrance.  These refugees are not counted in the 20,000 quota for Cubans; there is a given number of visas set aside for such refugees from the entire world, and Cubans have to compete with other nationals. Hence, Cuban migrants affect other nations in Latin America has an adverse results by denying others refugee status under the quotas.

4. In order to allow citizens from nations that have a very low quota for getting visas to the U.S., Congress passed the Diversity Act that allocated 55,000 visas to ensure a cross section of nationals to come to the U.S. to get permanent residency. Cuba would normally not be included since they have a very large quota, but Congress also allowed countries on the terrorist list to import citizens from those countries. Cubans who apply for these visas do not have to have relatives in the U.S. and they can bring family members with them. In recent years, Cubans have received 67%, 69% and 73% of visas for those who applied. This group can also bring a spouse and children under 21 with them. While other nationals cannot get a visa if they will become public charges, this provision does not apply to Cubans, legal or illegal.

It is, then, of little surprise when we find other hispanics protesting the differences in treatment for their nationals. But it is unlikely that the preferential treatment given Cubans will ever change because of the importance of Florida politically, the Cuban lobbyists, the Cubans in Congress and the lack of press coverage detailing the preferences given to Cubans. In many forums on immigration, I have tried to get a discussion of the differences in the way Cuban migrants are treated, but to no avail. The Cubans political influence is simply too great to get an open discussion. The Obama administration has recently reported that there was a record number of deportations in 2010; it is not fruitful for the mass media to point out that none of these were Cubans who entered the country illegally because they would have to point out that all the claims made by the American populace about how many benefits are given, and American jobs lost, are not accurate except for one group: Cubans. In fact 29,079 Cubans have been given deportation orders for criminal acts, but cannot be deported, and only a 235 are in jail, mostly those who came here in the Mariel migration. The others cannot be held in jail for more than 6 months.

The chaotic immigration situation now existing in the U.S. is further exacerbated by the existence of a group singled out for special preferences that impinge on the political, economic and social life of the population. By having a powerful political group--the Cuban lobby--exercising veto power over any attempt to establish a uniform immigration policy,  we continue to be subjected to justified criticism from other nations over our favoritism. It is not lost on other countries that their nationals are treated differently and harshly from Cubans who are immune from the normal immigration process. Our diplomatic efforts to deal rationally with these nations suffers from obvious hypocrisy when we talk about the rule of law and rational approaches to resolution of political and social problems, as well as ones dealing with immigration. The Cuban exception affects how we solve some internal problems of immigration as well. 

Senator Hatch, for example, introduced a bill in October that would change the diversity program, and would require an accounting of the costs of services used by illegal immigrants, among other provisions. But would he include Cubans exempt Cubans from any adverse changes? And would he require the assessment of costs to include the costs of providing services to Cubans who arrived here illegally? Senator Menendez also introduced legislature that would increase the number of visas for agriculture workers who are needed for harvesting crops, but would he require that some of the Cubans coming here work in agricultural enterprises in order to become permanent residents? These are only a few questions that will have to be dealt with in immigration reforms if such a thing is ever attempted. 

There have been many attempts to repeal the Cuban Adjustment Act of 1966; the latest was by Representative Barney Frank in 2006. The attempt failed, and there is not much chance of taking it up now with Illana Ros-Lehtinen becoming chair of the House Foreign Affairs Committee. And there are even many politicians and others who want to abandon the dry foot-wet foot dichotomy, and allow all Cubans who leave to come here. Former Representative Lincoln Diaz-Balert has long advocated such a course, and he has now left the House and returned to Florida where he undoubtedly will work to expand the political power of the Cuban lobby.

And how are we going to deal with the very generous benefits given to Cuban immigrants whether they are legal or illegal? Ruth Ellen Wasem of the Congressional Research Service provided a summary of those benefits in 2009. The basis for Cubans receiving Federal and State social and medical benefits is the fact that they are teated as refugees, and are eligible to receive the same ones that non Cuban asyllees and refugees are entitled to; Cubans also have exemptions other immigrants do not have.  

If someone wants to immigrate to the U.S., they must have adequate resources to ensure they will not be a public charge, or they must have someone who does have resources to agree to sponsor the migrant . After five years, the LPR can apply for federal benefits.  Legal and illegal immigrants from other countries, of course, cannot be a public charge and gain entrance to the U.S.

 But these provisions do not apply to Cubans. As soon as a Cuban enters the U.S., legally or illegally, they are can get benefits if they meet the same requirements as U.S. citizens. They can get SSI for seven years, but was expanded to nine years during FY2009-2011. The maximum the person could get in 2008 was $ 637 a month for a single person, and $956 a month for a married couple. If they get SSI, they are also likely to get Medicaid from the state. If, however, the person does not receive SSI, and the person has children under 18, they are eligible for cash assistance, possibly a monthly payment (variable by state) and Medicaid. They are also eligible for refugee resettlement assistance that are designed to help migrants work toward self sufficiency . Childless females, single males, and couples who meet the requirements for programs but not otherwise eligible, can still qualify for other programs, including medical assistance. And there are other state programs that are separate from federal ones. 

An interesting question is whether, with the cutbacks of services by the Federal and state governments, the preferential benefits given to Cubans will continue in the future. We know there is a tremendous outcry  over illegal immigrants who are not getting the benefits Cubans get, and there is sure to eventually be questions asked as to why benefits that are being reduced or taken away for U.S. citizens would still be given to Cubans who are not even citizens. Some 4,000 Cubans, for example, receive disability payments and are not citizens, and cannot speak English.

Politicians will, to be sure, continue to fear cutting preferences for Cubans, but an astute non- incumbent politician can make effective campaign points by   attacking these preferences, at least in some parts of the country. And if non-Cuban illegals who came here as children are going to continue to be denied equal opportunities that Cuban children enjoy, there is sure to be animosities that will become a part of the political process and should become part of the debate about immigration. 

In public opinion polls after the 2010 earthquake about whether or not Haitians should be allowed to stay in this country or more to be admitted, Americans opposed such policies, but I am not aware of any polls asking if Cubans should be given temporary or permeant residency or about concerns noted by the report by William Gibsons’ on January 14, 2010 of the South Florida Sun Sentinel about Haitian migrants: 

“...[S}several administrations have been reluctant to grant TPS for fear it would encourage more Haitians to flee the island on dangerous voyages bound for Florida. Critics in Congress say it would reward illegal immigration and strain schools and social services in places like South Florida.”

The same reasoning does not apply for Cuban migrants who are encouraged to come because of benefits, jobs special treatment and other preferences given only to them. Smuggling for Cubans is far more extensive for Cubans than other groups; because of the benefits upon arriving in the U.S., the illegal Cuban can repay the costs within a short time.

Ironically, unlike the costs imposed by Cubans, the Haitian children that arrived here after the earthquake, according to a 2011 report, did not result in overloading public schools for the poor because large numbers of them needed advanced placement, not remedial instruction, and some even went to private schools.

The preferences given to Cubans also works against an overall solution to immigration. Cuban interest groups and politicians are not going to want reform when it will decrease the number of Cubans, legals or illegals coming to the United States. About 50,000 total Cubans arrive each year from both groups, and this is far more than quotas would ever allow under a reformed system.  

And it would be naive to think that U.S. foreign policy and diplomacy is affected by the blatant differences in the way immigrants are treated according to the country they come from.

To paraphrase George Orwell in Animal Farm: all immigrants are equal, but some are more equal than others.

V. Jerone Stephens.  Ph.D from Indiana University. I am a retired professor of political science, but continue writing about politics.