Saturday, August 20, 2011

Why the Cuban Adjustment Act is the best solution to a bad situation

Cuba is the only country in the hemisphere that systematically bars the freedom of movement in and out of the country of its nationals.

Between 70,000 and 300,000 Cubans are banned by the Castro regime from returning to their homeland reported The Miami Herald on August 15, 2011 in an article titled Many Cuban expatriates can't go home again. My parents are two of this number. Although they left Cuba during the Batista dictatorship and returned to visit family after 1959. Because my father spoke critically to a local communist official during his last visit. When he applied for a visa to return to visit an ailing mother he was refused. When my grandmother became ill and died he was unable to visit her, but only speak to her over the phone. According to The Miami Herald article this is not an uncommon occurrence:
The Cuban consulate in Washington, which must pre-approve all Cuban-American travelers, rejects about 20 of the 200 applications for permission to visit that her agency sends in monthly, according to one travel industry employee.

Migration officials in Cuba reject another one or two Cuban Americans per month after they review the passenger manifests her company sends them before departure, one official noted. The rejection reads, “Do not board for illegal exit,” she added. Another one or two per month are turned back at Cuban airports.

In addition, both Cuban nationals and Cubans who have become naturalized citizens of other countries must present a passport and a visa to return to Cuba. There is no other country in the Western Hemisphere that requires their own nationals to apply for a visa to re-enter their own country. Also those born in Cuba who have become naturalized citizens elsewhere still have to purchase a Cuban passport to be able to return to their homeland, along with the visa. The New York Times on their travel page describing entry requirements into Cuba has a special section for Cuban nationals that states the following:
The Cuban government doesn't recognize dual nationality of travelers from other countries who are Cuban-born or are the children of Cuban parents, particularly those who chose exile in the United States. The Cuban government requires some individuals whom it considers to be Cuban to enter and depart Cuba using a Cuban passport. Using a Cuban passport for this purpose does not jeopardize one's foreign citizenship; however, you will probably have to use your home country's passport to exit and enter that country. Other Cuban nationals and exiles just need a visa, but acquiring this visa is more complicated than acquiring the simple tourist visa used by most other travelers.

In other words Cubans are subject to more scrutiny to enter their own homeland than anyone else and they have to pay more than a foreigner. At the same time an unknown number, are banned from being able to do what people from other normal countries are able to do and that is travel internationally and return home. One high profile example is Cuban blogger Yoani Sanchez. Over the past four years she has filed paper work to obtain permission to travel on 17 occasions and been denied. The last being on August 15, 2011. Traveling outside of Cuba is a privilege granted by the dictatorship.

The international community recognizes that the right to freedom of movement is not a privilege to be granted but a fundamental right to be respected. This is affirmed in Article 13 of the Universal Declaration of Human Rights which states:
Article 13.
  • (1) Everyone has the right to freedom of movement and residence within the borders of each state.
  • (2) Everyone has the right to leave any country, including his own, and to return to his country.
Considering that the regime systematically violates the rest of the Universal Declaration of Human Rights and does not respect freedom of movement within its own territory these practices should not be a surprise. At the same time the extremes the dictatorship has sunk to including the mass murder of fleeing refugees necessitates that Cubans receive a special designation in immigration law. The United States in 1966 did just that with the Cuban Adjustment which is reproduced below.

Current or Recent Alien Adjustment Provisions

A. Cuban Adjustment

(Public Law 89-732, November 2, 1966, as Amended)

That, notwithstanding the provisions of section 245(c) of the Immigration and Nationality Act the status of any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to January 1, 1959 and has been physically present in the United States for at least one year, may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if the alien makes an application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence. Upon approval of such an application for adjustment of status, the Attorney General shall create a record of the alien's admission for permanent residence as of a date thirty months prior to the filing of such an application or the date of his last arrival into the United States, whichever date is later. The provisions of this Act shall be applicable to the spouse and child of any alien described in this subsection, regardless of their citizenship and place of birth, who are residing with such alien in the United States.

SEC. 2. In the case of any alien described in section 1 of this Act who, prior to the effective date thereof, has been lawfully admitted into the United States for permanent residence, the Attorney General shall, upon application, record his admission for permanent residence as of the date the alien originally arrived in the United States as a nonimmigrant or as a parolee, or a date thirty months prior to the date of enactment of this Act, whichever date is later.

[Section 3 amended § 13 of Pub. L. 89-236 (8 U.S.C. 1255(c)); omitted as executed.]

SEC. 4. Except as otherwise specifically provided in this Act, the definitions contained in section 101 (a) and (b) of the Immigration and Nationality Act shall apply in the administration of this Act. Nothing contained in this Act shall be held to repeal, amend, alter, modify, affect, or restrict the powers, duties, functions, or authority of the Attorney General in the administration and enforcement of the Immigration and Nationality Act or any other law relating to immigration nationality, or naturalization.

SEC. 5. The approval of an application for adjustment of status to that of lawful permanent resident of the United States pursuant to the provisions of section 1 or this Act shall not require the Secretary of State to reduce the number of visas authorized to be issued in any class in any alien who is physically present in the United States on or before the effective date of the Immigration and Nationality Act Amendments of 1976.

[End of Document]

At the same time one cannot ignore that the dictatorship in Cuba is also a state sponsor of terrorism and that a small number of individuals who have engaged in human rights violations and atrocities against Cubans have been rewarded by the Cuban regime with residency in the United States. At the same time the president of the United States has said that those engaged in serious human rights violations should be barred from entering the United States and on August 4, 2011 issued a presidential proclamation to that effect that states under Section 1:
The entry into the United States, as immigrants or nonimmigrants, of the following persons is hereby suspended:

(a) Any alien who planned, ordered, assisted, aided and abetted, committed or otherwise participated in, including through command responsibility, widespread or systematic violence against any civilian population based in whole or in part on race; color; descent; sex; disability; membership in an indigenous group; language; religion; political opinion; national origin; ethnicity; membership in a particular social group; birth; or sexual orientation or gender identity, or who attempted or conspired to do so.

(b) Any alien who planned, ordered, assisted, aided and abetted, committed or otherwise participated in, including through command responsibility, war crimes, crimes against humanity or other serious violations of human rights, or who attempted or conspired to do so.

Maintaining the Cuban Adjustment act as it is while applying the new presidential proclamation to those who have committed serious human rights violations in Cuba seems an approach that both takes into account the systematic violation of human rights suffered by Cubans and the need to hold human rights violators accountable.

1 comment:

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