The sudden end of America’s “wet foot, dry foot” policy and special immigration privileges for Cubans may open the door for another move that would have a major impact on thousands of South Florida families: deporting convicted Cuban felons back to the island.
The U.S. government counts 28,400 of them, with the vast majority free after serving prison time for their felony convictions in the United States.
After decades of maintaining a hard line to never take them back, Cuban officials said Thursday that they would consider the proposition — which has been one of the topics in negotiations between the U.S. and Cuba since diplomatic relations were restored in 2015. It appears unlikely there would be a mass deportation by the U.S., but both sides signaled a diplomatic opening for case-by-case negotiations.
Gustavo Machin, deputy director of the U.S. section of Cuba’s Foreign Ministry, said his government would consider cases of Cubans who have “broken laws” in the United States and “can no longer remain” in the country.
The issue is controversial, to say the least, because among the large number of Cuban felons now facing removal to their homeland are those convicted of committing more than 2,000 murders in the United States, according to the Department of Homeland Security.
For decades, all of the released felons have been allowed to live in Florida and other parts of the United States under the supervision of immigration authorities because the federal government had no diplomatic relations with Cuba to deport them since the early 1960s. Of the total facing deportations, about 18,000 live in Florida.
But now that President Barack Obama has repealed the wet foot, dry foot policy allowing Cubans who reach U.S. soil to stay, the removal of thousands of Cuban nationals convicted of felony crimes in this country seems at least possible. Although there is no specific mention of the felon issue in the new U.S. migration accord with Cuba, one section addresses Cuban immigrants who “remain” in America “in violation of U.S. law.” It further says the U.S. government “shall focus on individuals ... determined to be priorities for return.”
Homeland Security Secretary Jeh Johnson told reporters on Thursday that “under our agreement with Cuba, there was also the possibility that the Cubans will accept back migrants outside of this arrangement, but on a case-by-case basis.”
Some South Florida legal experts who have been following the issue said the removal of the Cuban felons is long overdue.
“Convicted felons of Cuban origin should be deported if they cannot establish a lawful reason for the United States to refrain from sending them back,” said Miami lawyer Marcos Jimenez, a former U.S. attorney in South Florida. “And Cuba should accept them back, so Cuba honors its end of the bargain now that the countries have re-established diplomatic relations.”
Jimenez, who was appointed U.S. attorney by former President George W. Bush, said the removals “should absolutely be a priority for the new [Trump] administration.”
But at the same time, Jimenez said, the Cuban government “should deport” potentially dozens of U.S. fugitives wanted for crimes in this country “who are hiding in Cuba.”
Over the past two decades, there has been an uptick in federal crimes, such as Medicare and other government fraud, with Cuban suspects fleeing to the island with their stolen benefits — a troubling trend that compelled a few Cuban-American politicians to question the special political refugee status afforded new immigrants from the island.
For decades, Cubans — including those convicted in the United States — have benefited from unique immigration privileges while their country and America shared no diplomatic relations.
Generally speaking, the Obama administration has aggressively enforced U.S. law requiring the deportation of other foreign nationals with criminal convictions: More than one million felons have been sent back to their countries since 2009, mostly for immigration and drug-trafficking offenses, records show. But similar actions have rarely been pursued against Cubans in decades, largely owing to Havana’s refusal to take them back.
Unlike other immigrant groups, Cubans were automatically given a special status as political refugees under U.S. law in the years after Fidel Castro’s 1959 revolution. Under the 1966 Cuban Adjustment Act, any Cuban who enters the country can apply for a green card, or permanent legal residency, after one year and a day. They can also apply for U.S. citizenship after five years, if they haven’t committed a crime.
As a result, without a new immigration agreement in place with the Cuban government, the vast majority of Cuban felons who served their prison terms were released back into society. That’s because they could not be detained indefinitely under two Supreme Court decisions in 2001 and 2005 that prohibit the permanent detention of immigrants who cannot be deported. So, in the meantime, they fall under the supervision of Immigration and Customs Enforcement.
There has been only one exception to the no-deportation rule, in the aftermath of the 1980 Mariel boat-lift. The Cuban government had sent several thousand criminals and patients from mental institutions to Florida as part of an exodus of 125,000 Cuban refugees.
Afterward, under a 1984 repatriation agreement, U.S. and Cuba officials agreed to a list of 2,746 Cuban citizens who could be deported to the island. Of those, 2,022 have been sent back, according to Immigration and Customs Enforcement. Another 246 have died, and 478 are too old and sick to be returned.
But based on that agreement, Homeland Security officials said they have had little control over which cases the Cuban government would accept — including felons facing U.S. deportation orders. Indeed, the Havana government has accepted the return of only five Cubans not included on the Mariel list.
In addition, there are 6,700 Cubans facing deportations for non-criminal violations of U.S. immigration laws, including those who never applied for permanent residency after living in the country for more than a year.