Despite a 44 year history, the Cuban Adjustment Act (CAA) remains a mystery to many in Southern California.

Government lawyers are among those sometimes confused by CAA’s simplicity.

A Defense To Deportation And Removal

Three weeks after arriving in Mexico City, Norma finally reached Tijuana, Mexico.  The next day she went to the San Diego port of entry.  She noted her fear about returning to Cuba.  The officer granted parole, allowing her lawful entry into the U.S. and releasing her from custody.

At Norma’s deportation and removal defense hearing, government counsel objected to Norma’s request to adjust her status to permanent residency.

“Your honor, the only potential avenue of relief is her weak claim of asylum,” wrongly insisted the DHS attorney not once, not twice, but three times.

Grasping the judge’s growing frustration with this error, I asked the court for a two-week continuance to allow opposing counsel to study the issue.

What Is The Cuban Adjustment Act?

The Cuban Adjustment Act was enacted on November 2, 1966.  Like most immigration laws, it was politically inspired.  It resulted out of massive Cuban migration to the U.S. after the 1959 Cuban Revolution and failed attempts to overthrown the Castro regime.

A large part of CAA’s uniqueness lies in its “one year and one day” rule.

Cuban citizens can apply for permanent resident status if they have been present in the U.S. for at least one year after admission or parole.  They do not need to be beneficiaries of family-sponsored or employment-sponsored immigrant visa petitions.

The 1995 Wet Foot/Dry Foot Policy

Under the Clinton Administration, the Cuban Adjustment Act was revised in 1995. The changes became known as the wet foot/dry foot policy.

Under the 1995 provisions, the U.S. Coast Guard is required to repatriate Cubans intercepted at sea, those with “wet feet,” back to Cuba – unless they can prove a fear of persecution if they are sent back, in which case they are resettled in a third country.

Cubans who make it to U.S. shores, those with “dry feet,” are permitted to stay here and adjust status the following year.

The Dusty Foot Trail To Southern California

The 1995 amendments led to unanticipated consequences.

Fearing apprehension at sea, Cubans changed their route to the U.S.  Entering via Miami became a less preferred option.

Over the past decade, like Norma, Cubans have opted for traveling first to Mexico, and then entering the United States at a Mexico-U.S. port.

  • Between 2004 and 2005, Coast Guard efforts were intensified. The interdictions of Cubans more than doubled from 1,225 to 2,712.  In 2007 the high of 2,868 was reached.
  • As a result, the number of Cubans arriving through Florida began to decrease, dropping below 1,000 per year by 2006.
  • Meanwhile, the amount crossing the Mexican border rose from almost 6,000 in 2004 to approximately 11,000 in 2007 and 10,000 in 2008.

The trend, dubbed “dusty foot,” continues today.

The Difficulty With CAA Is That It’s Not Difficult

Having practiced as a San Diego immigration attorney for more than 15 years, I feel the migration patterns of Cuban immigrants should have led DHS lawyers to a better understanding of the Cuban Adjustment Act by now.

Even though the number of Cubans entering the U.S. at California and other southwestern states dropped to 5,600 in 2009, this figure is large enough to justify increased training of government attorneys.

Most immigration programs have complex requirements.  Not CAA.  Immigrants from other countries can only admire its’ leniency.

The Cuban Adjustment Act is not a difficult program to understand.

Ironically, for government attorneys accustomed to imposing barrier after barrier to permanent residence, that’s the difficulty.