JURIST Special Guest Columnist Roberto Iraola, a former prosecutor now with the US Department of the Interior, says that Cuban migrants reaching American shores after fleeing the oppressive regime of Fidel Castro should be given the benefit of the legal doubt when it comes to their eligibility to apply for US permanent residency status…

Around midnight on January 4, 2006, after a 27-hour voyage, a makeshift boat with fifteen Cubans, including four women and two children, reached Flagler Bridge, popularly known as the old Seven Mile Bridge, south of Marathon Key, Florida. The Cubans believed they had finally arrived at the land of freedom. This is because under the so-called “wet foot, dry foot” policy, which does not apply to any other group of immigrants and has been in effect since 1995, Cubans who make it to American soil are allowed to apply for permanent resident status in one year under the Cuban Adjustment Act of 1966. Those interdicted at sea, however, generally are returned to Cuba, unless they establish a credible fear of prosecution, in which case they are taken to the naval base at Guantanamo Bay and then found asylum in a third country. The genesis of this policy, in part, can be traced to the exodus of over 30,000 refugees who left Cuba in small boats and rafts in 1994 after Cuba’s communist dictator Fidel Castro proclaimed that those wishing to leave would not be prevented from doing so. The ensuing crisis resulted in the entry of migration accords between the two countries in 1994 and 1995, leading to the promulgation of the current policy. Unfortunately for the fifteen Cubans who landed on the old Seven Mile Bridge, the American government concluded that because the piling holding the section of the bridge in which they disembarked was no longer connected to the mainland at either end, they had wet feet. As a result, they were all repatriated.

The day after the Cubans were sent back, a suit was filed in district court by four of their group and other interested parties alleging that the United States Coast Guard had failed to implement the wet foot, dry foot policy reasonably when it elected to repatriate the group to Cuba. The district court agreed holding that “those Cuban refugees who reached American soil in early January 2006 were removed to Cuba illegally.” The court further directed the government to undertake its “best efforts” to provide for the return of the group. Two weeks after the entry of the court’s order, the parties settled the case. The government agreed to issue visas to fourteen members of the group (one of them reportedly had a criminal history so he was not included) and the earlier order was vacated and the case dismissed. Whether Castro ultimately will grant these brave men, women, and children permission to immigrate to the United States remains to be seen.

The decision to repatriate the Cubans that landed on the old Seven Mile Bridge produced an outcry in the Cuban exile community, was sharply criticized by Mel Martinez, Florida’s Cuban-American Senator, and raised concerns with members of Congress about the need to re-examine the policy. Putting aside the policy’s wisdom and whether it reflects a betrayal of principle (before then, most Cubans picked up at sea were taken back to the United States because it was recognized they were fleeing a communist dictatorship), the recent repatriation teaches that at times, there will be room at the joints when the issue surrounding the policy’s enforcement concerns whether a Cuban migrant has “dry feet.” This means that when interpreting or gauging the bounds of this aspect of the policy, two fundamental considerations must be kept in mind.

The first concerns the country at issue and the type of relationship which we have with that country. In this regard, while the United States, as reflected in the Cuban Adjustment Act, has warmly welcomed the Cuban people, it does not formally recognize the Cuban government, a communist dictatorship with no respect for basic human rights. Second, those that risk their lives in makeshift boats traversing the Florida Straights in the hopes of reaching American shores are looking for a chance to live in freedom – a condition that does not exist in Cuba. President Bush forcefully made this point last year when, in commemorating the 103rd anniversary of Cuban independence from Spain, he warned: “The tide of freedom is spreading across the globe, and it will reach Cuban shores. No tyrant can stand forever against the power of liberty because the hope of freedom is found in every heart.” In the meantime then, for purposes of the implementation of current policy, when a scenario arises in the future involving United States territorial waters and which calls into question whether a Cuban migrant has reached American soil, consistent with the promotion of the “hope of freedom found in every heart,” the migrant should be given the benefit of the doubt.

Roberto Iraola, a former prosecutor, is the Senior Advisor to the Deputy Assistant Secretary for Law Enforcement and Security at the Department of the Interior. The views expressed herein are solely his and do not purport to represent the views of the Department of the Interior or any of its bureaus or offices.
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