How to Amend the Cuban Adjustment Act

Tuesday, October 20, 2015
The Sun-Sentinel has published a series of investigations into how the Cuban Adjustment Act is being incrementally manipulated by those seeking to commit Medicare fraud and abuse our welfare system.

It has also published Congressional reaction to these investigations.

As the conversation over how to address the Cuban Adjustment Act gathers steam, below are excerpts from the June 1, 2012 testimony of CHC Editor Mauricio Claver-Carone in the House Judiciary Committee, which forewarned about these problems and how to simply address them.

From Claver-Carone's testimony:

The Cuban Refugee Adjustment Act of 1966 gives Cuban nationals -- once they reach the United States and stay for a year -- a right to become legal, permanent residents. Cubans are the only nationality to which the U.S. Congress has awarded this special privilege.

The legislative history of the CRAA holds that immigrants from Cuba are refugees under international law, hence its original name.

Under the United Nations Convention Relating to the Status of Refugees of 1951, a refugee is a person who "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country."

Undoubtedly, Cubans remain persecuted for their political opinions by the Castro dictatorship, which remains as brutal as ever. Thus, it is not yet time to repeal the CRAA [...]

However, some things have changed since the CRAA was originally enacted.

In 1994, as rising political pressure and economic woes threatened the regime’s post-Soviet existence, Fidel and Raul Castro resorted to their old tactic of creating a migration crisis (i.e. Mariel boatlift of 1980), but with a new twist. Thus, they began allowing Cubans to take to the sea in makeshift rafts.

From this crisis, the Castro regime extracted a migration accord ("1994 Accord") from the Clinton Administration, which allocated a minimum of 20,000 yearly visas to residents of Cuba -- regardless of their political status vis-à-vis the dictatorship.

Since the 20,000 minimum visas per year could not be met through the Immigration and Nationality Act (“INA”) preference system, the Clinton Administration decided to use the CRAA as its legal authority to allow this new category of Cubans to come to the U.S. and become legal, permanent residents. It even created a “visa lottery” program to randomly select -- once again, regardless of political rationale -- who receives a visa -- in clear violation of the CRAA’s original intent.

Pursuant to the 1994 Accord, nearly half a million Cubans have entered the U.S. and become legal, permanent residents under the CRAA. Although no longer a pre-requisite, most have nonetheless had a political rationale for fleeing the island -- others have not.

Yet, both are equally afforded the benefits of the CRAA. Not only regarding their migratory status, but also the generous means-tested public assistance programs afforded to refugees and to which they qualify thanks to the CRAA. These include Supplemental Security Income (SSI) and Temporary Assistance for Needy Families (TANF). Such public assistance is meant to help Cuban refugees settle in the U.S. However, many non-refugee Cubans currently use these benefits, which can average more than $1,000 per month, to immediately travel back to the island, where the average income is $20 per month, and comfortably reside there for months at a time on the taxpayer’s dime.

The time has come to legally ensure that only Cubans who come to the U.S. as refugees are afforded the special privileges provided under the CRAA -- and thus, restore the law’s original intent.

This does not mean that Cubans who are not refugees should be denied entry into the U.S. It simply means that they should be subject to the same set of immigration rules as Mexicans, Canadians, Filipinos or any other nationalities patiently waiting to do so [...]

Otherwise, this current backdoor loophole risks altogether ending the needed special protections the CRAA originally intended for those persecuted by the Castro regime -- further endangering lives, while granting a calculated victory to the island's cruel dictatorship.

The Castro regime has manipulated the 1994 Accord to create a system of travel back-and-forth to the island for tens of thousands of non-refugee Cubans, who nonetheless adjusted their status under CRAA. Meanwhile, it continues to deny the right of return to those who have fled for political reasons -- keeping their names on an infamous “black list.” This travel network carries minimum political risk for the regime, as it fully controls access to the island, while delivering huge financial benefits for its totalitarian economy -- thanks to the constant stream of desperately needed hard currency it creates. It has also facilitated the Castro regime’s ability to establish and repatriate funds from lucrative criminal enterprises, including billionaire Medicare fraud schemes.

These incongruences are further exacerbated by the fact that the U.S. government outsources the first-tier screening of Cubans chosen to be paroled into the U.S. under the CRAA to the Castro regime. That’s right; the U.S. Interests Section in Havana hires Castro regime personnel to interview Cubans seeking visas. Thus, adding insult to injury, current U.S. policy allows the persecutors to choose who will be afforded the privilege of the CRAA.

The result is a process whereby thousands of Cuban non-refugees are being admitted to the U.S. under CRAA, while many who are genuinely persecuted for their political views are being denied entry [...]

The fairest and easiest way to legally classify those Cubans who have a legitimate political rationale for seeking refuge in the U.S. versus those who do not is by identifying those who quickly turn-around and travel back to the island.

Identifying those who travel back in order to determine a political rationale for CRAA purposes is not a new rubric. It is how U.S. law distinguishes legitimate versus fraudulent refugee claims for every other nationality in the world.

Under Section 208.8(b) of Title 8 of the Code of Federal Regulations, an asylum applicant who leaves the U.S. pursuant to advance parole and returns to the country of claimed persecution is presumed to have abandoned his or her asylum application. Such an individual’s underlying asylum status may be terminated even if the individual has already become a lawful permanent resident.

Therefore, in order to rightfully restore the original intent of the CRAA, Congress should [apply refugee parity], which would make [CRAA] consistent with Section 208.8(b) as applied to Iranians, Syrians, Sudanese and other source-nations of refugees, whose asylum status may be terminated if they choose to return to their country of feared persecution, until they become U.S. citizens.

It is the most reasonable way to ensure the CRAA continues to protect Cuban refugees who are fleeing the Castro regime’s persecution, without providing a financial lifeline and an additional control mechanism to their persecutors.