Last week, President Obama issued the first major change in U.S. immigration policy towards Cubans in over 20 years. On January 12, 2017, President Obama announced that the 1995 immigration policy designed specifically for Cuban nationals, known as “Wet-Foot/Dry-Foot”, would be abolished immediately. That means that Cuban nationals arriving at air, sea and land ports would now be subject to expedited removal (they were not previously) and that the Cuban government has agreed to review Cuban nationals with final orders of removal on a case by case basis to determine if they would allow them to be deported to Cuba. In addition, Cubans who arrive in the U.S. without visas and without having been admitted or paroled will not receive special parole consideration. They will be considered for parole like any other foreign national. Parole is the primary way that Cubans become eligible to adjust status in the U.S. and get their green cards.
This is a major, major change to how the U.S. government treats Cuban nationals coming to, or attempting to come to the United States. No longer will they be welcomed into the air, sea and land ports, automatically given parole into the U.S., and a year and day later, be allowed to apply for adjustment of status under the Cuban Adjustment Act.
Just for background, the 1995 Wet-Foot/Dry-Foot Policy, enacted by President Clinton, restricted Cuban nationals, who would be paroled into the U.S. and allowed to apply for green cards, to those who actually made it to U.S. soil before immigration officers caught them. Previously, Cuban nationals caught on boats or rafts in the Florida Straits, on their way from Cuba to the U.S., were brought to the U.S. and paroled into the country, rather than being sent back to Cuba. Wet-Foot/Dry-Foot greatly limited the number of Cuban nationals who made it to the U.S.
Now, even those Cuban nationals who make it to the U.S. will no longer be automatically paroled in and allowed to apply for lawful permanent residence, they will be treated like all other foreign nationals. This similar treatment extends to the use of expedited removal against Cuban nationals. This form of summary removal has not been used against Cubans in the past and is a giant shift in policy.
Expedited Removal allows immigration officers, who arrest a foreign national at or within 100 miles of a land border within 14 days of an illegal entry, to order that person removed from the United States. This order happens without the person seeing an immigration judge and usually without a chance to talk to an immigration attorney. Expedited removal can also be used against foreign nationals who arrive by sea without being inspected, admitted or paroled if they are caught within two years of their arrival.
Expedited Removal is a powerful immigration enforcement tool and one ripe for abuse and overuse. Until now, immigration officers could not use Expedited Removal against Cuban nationals because these individuals could not be removed to Cuba—so it was a waste of time and resources. Now, Cuban nationals can be subjected to Expedited Removal just like other non-citizens. They can be detained, ordered removal and actually removed to Cuba. The same goes for Cuban nationals who fly into the U.S. or arrive at a land border and attempt to enter without a visa. Worse yet, if a Cuban national is arrested within two years of arriving by sea without having been inspected, admitted or paroled, they can also be subjected to Expedited Removal.
One of the only ways to avoid Expedited Removal for any foreign national is if that person has a credible fear of persecution or torture if they are deported to their home country. If a person is subjected to Expedited Removal and tells the immigration officer that they are afraid to be deported to their country, they should be referred to an asylum officer for a credible fear interview. If the asylum officer finds the person’s claim of fear honest and believes they will be persecuted because of their race, religion, ethnicity, political opinion or membership in a particular social group or be tortured by the foreign government, there is hope.
A finding of a credible fear will make the immigration officers take away the Expedited Removal order and send the person to see an immigration judge so they can apply for asylum. This can also lead to release from immigration detention and most importantly for Cuban nationals, an I-94 card with parole into the United States. That is the same parole that allows them to apply to adjust their status and get their green card a year and a day after arrival.
If you are a Cuban national who is currently in the United States and has not been admitted or paroled or who arrived on or after January 12, 2017, you are facing a very different set of immigration policies than those who came before you. These policies are changing all the time and are not set in stone. You need an experienced immigration attorney who is on top of the changes in the law and who is ahead of the curve. Call us today for a consultation to see how we can help you with your immigration case.
If you need an immigration attorney anywhere in the United States, but certainly if you live in Orlando or Jacksonville, please call Shorstein, Lasnetski & Gihon.
If you are not a citizen and concerned about your immigration options, call us today for a consultation.
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