Cuban Preference or Haitian Discrimination?

Birdsong teaches a course in immigration law at the Barry law School and will teach the first seminar course offered at Barry in the fall concerning refugee law. Over the years he has researched and written on refugee topics. Birdsong also, oversees, directed research papers by students interested in immigration and refugee law. From time to time Birdsong will, with the students’ permission, post here outstanding student papers on refugee and asylum law that a wider audience may wish to read.

Although Birdsong did not personally oversee the following paper, he was asked to read it and certify that it met the requirements of Barry’s Upper Level Writing Requirement. The paper certainly meets all the requirements. The paper by Rafael Rodriguezdoes an excellent job of recounting and comparing the history of Cuban and Haitian asylum policies in the United States over the last fifty years.

Read and learn:

Cuban Preference or Haitian discrimination: In the realm of Asylum and Refugee law- Which will Stand the Test of Time?

By: Rafael Rodriguez

Abstract:

Since the fall of Batista at the hands of Fidel Castro, the United States has taken a hard line against this island nation of Cuba by setting ‘the Embargo.’ Fleeing from a communist nation, Cuban refugees have often times received preferred status as applicants for asylum, as opposed to other refugee applicants including those from a similar island nation in the Caribbean; Haiti. Whereas Cubans received this preferred status among similar refugees, Haitians were treated with biased discriminatory actions by the United States – often in direct violation of treaties and Federal Statutes. The preferred status of Cubans will continue to last so long as the embargo is in place and the current administration takes a hard line against the persistent human rights abuses on the island. In the future however, with a new administration in the White House and new leadership in Cuba, the embargo may eventually be lifted, and this preferred status (including wet foot/dry foot policy) will no longer be necessary. At that time, the United States should make a concerted effort to treat all refugees as equal, regardless of race and nationality. The current double standard as applied to Haitians must end as soon as possible. The United States as a hegemonic power denounces the human rights violations of the rest of the world, and yet hypocritically continues to deny bona fide refugees the ability to apply for asylum. Pressure from the rest of the world will eventually force the United States to keep their side of the treaties they sign.

History of U.S./Cuban Relations

The United States has always taken a keen interest in Cuba; the ‘pearl of the Caribbean.’ Prior to Cuban Independence, “. . . the Caribbean Basin remained a focal point for U.S. policy. The United States was always eager to reduce, if not eliminate, the European presence in the area. The United States wanted to take advantage of promising opportunities for investment and trade.”[1] For these reasons, the U.S. was greatly involved in the Cuban independence movement from Spain. On December 10, 1898, with no Cuban representatives, a peace treaty was eventually signed ending Spanish domination of Cuba, Puerto Rico and the Philippines.[2] Although Cuba would eventually gain their independence from Spain, this did not necessarily mean independence from the United States.[3] “As Cuban leaders worked to establish a government, the United States in 1901 attached to Cuba’s new constitution the so-called Platt Amendment, permitting the United States to intervene in the affairs of the island ‘for the preservation of Cuban independence, and the maintenance of a government adequate for the protection of life, property, and individual liberty.’”[4] Once this amendment was enacted, the U.S. took full advantage of their legal right to occupy the island and guarantee that the government officials in Cuba were to their liking. This provision was in place for more than 30 years while the U.S. continued to contemplate annexation of the island during this era of U.S. imperialism.

The Platt Amendment lasted until its abrogation in 1934 during the U.S. Good Neighbor policy under Franklin Delano Roosevelt. At this time, “Washington (began an abrupt change by) withdrawing military troops, refrained from intervention, and initiated a process of consultation and cooperation.”[5] The United States began treating Cuba- as well as the rest of the Latin American nations- as sovereign entities, rather than subordinates. This change in policy brought a time of prosperity, with trade and commerce growing throughout the hemisphere. But this would be short-lived with World War II around the corner.

“World War II transformed global arrangements and elevated the United States to the status of a superpower.”[6] The war altered international alignments and the structure of relative power. The U.S. began to assume the role of global policeman of the communist movement worldwide.[7] Post World War II, the defeat of the Axis powers had left the Soviet Union in economic ruin. The U.S. and the Soviet Union eventually found themselves on opposing sides in a new war; the Cold War. Due to the ‘domino theory’ the U.S. believed that if one country fell to communism, it would immediately and automatically endanger its neighbors.[8] For this reason Cuba became increasingly important because of it’s’ size and centrality in the ‘backyard’ of the U.S.[9]

“A central goal of U.S. foreign policy was to foster and strengthen anticommunist regimes in Latin America. This often led to acquiescence in dictatorships.”[10] The U.S. began to accommodate these right-wing authoritarians throughout Latin America in their continued fight to police communism. Around this time, revolutionary rumblings were rampant in Cuba. Under President Fulgencio Batista, Cuba had experienced over a decade of corruption and scandal at all levels of civilian government. Batista himself staged a military coup in 1952 to stave off likely electoral defeat. Subsequently, circumstances in Cuba became prime for a revolution and the people of Cuba saw a rebel by the name of Fidel Castro as a better alternative to their present situation.

In 1956, Fidel Alejandro Castro Ruz launched a communist revolution from his camp in the Sierra Maestra Mountains with the support of many anti-Batista landowners alongside his rebel army. Within a few years Castro and his soldiers had taken over the island. This meant official victory for the rebels on New Year’s Day 1959, when Batista fled into exile and Castro took control of the government.

Castro’s revolution brought the Cold War right to the United States’ doorstep, only 90 miles from American soil. “Washington had greeted early signs of unrest against the Batista dictatorship with proclamations of support for the ruler.”[11] But that was short-lived. Once Castro’s rise to power seemed imminent, the U.S. abruptly halted all military aid to Cuba in 1958. Though this was a little too late, it was a sign of things to come for the future of U.S. – Cuban relations.

The U.S. began to take anti-Castro actions in 1961, including the Bay of Pigs, which would have far reaching implications.[12] Military endeavors such as the Bay of Pigs cost the U.S. $45 million, and represented a humiliating failure for U.S. strategy. [13] Contrary to U.S. intentions, this not only helped boost Castro’s political stature in Cuba and throughout the developing world, but also boosted Cuba’s relationship with the Soviet Union. “The Cuban Revolution, U.S.-Cuban relations, and the U.S.-Soviet rivalry… (would soon bring) the world to the brink of nuclear holocaust during the early 1960s.”[14]

After Castro had successfully taken control of the island, a Cuban resident remembers;

“He comes out and states that he is an atheist, he throws all the priests and nuns out of the country, he killed anyone who rose up against him, he took over all forms of private enterprises, people were made to ‘volunteer’ to work, the children were brainwashed at school, there was no freedom to speak of religion, and there was a huge lack of general goods.”[15]

The Cuban Revolution had left the island in a worse condition than it had been under Batista.[16] Castro’s Marxist/Leninist ideology directly affected the political landscape of the island nation for almost 50 years.[17] He held almost all the top positions in the government such as President of the Council of the State, Prime Minister, and the General Secretary of the Communist Party of Cuba.[18] He had been president since December 2, 1976, and in Cuba the president’s position is considered the Chief of State and head of government.[19] At the time President Fidel Castro appointed his brother, General Raul Castro Ruz as vice president.[20]

Recently, President Fidel Castro stepped down from his position as President and appointed his brother Raul Castro to take over.[21] While there is currently much speculation over how the direction of Cuba will change under new leadership, many consider Raul to hold similar if not the same ideology as his brother. No one is certain, at this point, who would be next in line after the aging Raul to hold the office of President. Several officers within the cabinet are currently vying for the position, and even though they would represent change in leadership, no one is assured that they will represent a change in the direction of the country.

History of U.S./Haitian relations-

After a double battle for freedom and for independence, former slaves defeated Napoleon Bonaparte’s troops and the independence of Hispaniola was proclaimed on January 1, 1804, under the name of Haiti. This followed a gruesome period with an estimated 350,000 deaths between 1791 and 1804. When Haiti proclaimed its independence, Haiti became the first and only nation created by a slave revolt.[22]

Independent Haiti’s first leader, General Jean Jacques Dessalines, declared himself Emperor of Haiti, and launched a brutal campaign to eradicate the last vestiges of colonialism from the island.[23] He eventually betrayed his vow to the Haitian people that they would live free and independent. Instead, Dessalines established (what was in effect) a state serfdom. This state was short lived because he was assassinated on October 17, 1806 when a rebel army ambushed his unit.[24]

The new nation then found itself divided between a kingdom in the north, directed by Henri Christophe and a republic in the south, directed by Alexandre Pétion. Quickly, then President Jean Pierre Boyer reunified these two parts and conquered the east part of the island in early 1822, where he abolished slavery.[25] Boyer tried unsuccessfully to revive the plantation system, but the central government went broke due to his inability to free the nation from prior administrations’ land reforms and the peasantry’s unwillingness to work for wages.[26]

Haiti’s political and economic decline was exacerbated by the refusal of the United States and much of Europe to formally recognize its independence. The youthful Untied States, whose economy was dependent on slavery, kept the new Haitian republic at arm’s length. Senator Robert Hayne of South Carolina expressed the sentiments of slave-owning states when he said: “We never can acknowledge Haiti’s independence… The peace and safety of a large portion of our union forbids us even to discuss it.”[27] It was not until 1862 that President Abraham Lincoln formally recognized Haiti, but even this recognition of the independence and sovereignty of Haiti would not bring stability to the island.[28]

A long succession of coups followed the departure of Jean Pierre Boyer.

“In fact, from the overthrow of Boyer to the U.S. occupation of 1915-34, only one of Haiti’s twenty-two presidents served out his term in office. Three died natural deaths, one was blown to pieces, one was torn to bits by a mob, two were assassinated, and fourteen more were driven from Haiti by revolts.”[29]

The United States, eager to protect its hegemony over the Caribbean, watched development in Haiti with growing concern. Haiti was impoverished, with few State Heads taking care of its development. While Haitian leaders resisted U.S. interference, the country continued to flirt with economic and political disaster.[30]

On July 28, 1915 the United States took unilateral action by occupying the island. Few believed that it would be 19 years before the occupation would end. The U.S. helped install a thousand miles of roads, 210 bridges, a modern telephone system, and established hospitals, clinics and schools.[31] Although the U.S. accomplished so much during their time in Haiti, they also brought Jim Crow racism and insensitivity to Haitian culture that would lead to their withdrawal. [32] With the domestic damages of the great depression, the U.S. eventually left the island on August 15, 1934.

During the 19 year occupation, U.S. racism helped reinforce the color prejudices in Haiti, eventually paving the way for the rhetoric of the eventual dictator Francois Duvalier. After becoming president in 1957 it soon became clear that Duvalier’s chief and foremost desire was to consolidate power.[33] The Duvaliers created a system of denouncement and death squads known as Tonton Macoute, which functioned as their own personal gang and terrorist unit. With their help the Duvaliers were able to maintain control over the island until 1986.

In early 1987, the Haitian Constitutional Assembly developed a document (the eventual Constitution) that seemed to capture the spirits of the growing populist movement. It was eventually voted on with 99.8 % national approval of the new document.[34] The new government eventually called for new presidential elections. But the Macoutes were still present after the Duvaliers’ fall and did their best to stop democracy by shooting courtyards where innocent men and women waited to cast their votes (known as Bloody Sunday).[35] Fair and honest elections did not occur again until 1990 when General Prosper Avril resigned and called for new elections.

At that election, a former priest, Jean-Bertrand Aristide, won the election in December, 1990. His mandate began on February 7, 1991, but a coup d’état carried out by Raoul Cédras supported by the middle-class of businesses overthrew his government after only seven months in power.[36] In 1994, Aristide was eventually restored to authority under the pressure of the U.S. Clinton administration’s threats of military intervention and U.N. international trade sanctions.[37] Aristide eventually left the presidency in 1995, but was re-elected in 2000. After several months of popular demonstrations and pressures exerted by the international community, (especially by France, the U.S. and Canada), Aristide went into exile and was taken out of the country by U.S. soldiers on February 29, 2004.[38] This occurred when armed forces consisting of opponents and former soldiers who controlled the North of the country threatened to take over the capital Port-au-Prince.[39]

Boniface Alexandre, president of the Supreme Court of Appeal, assumed interim authority. In February 2006, following elections marked by uncertainties of the calculation of ballot papers, and thanks to the support of popular demonstrations, René Préval, near to Aristide and former president of the Republic of Haiti between 1995 and 2000, was elected.[40]

Asylum and Refugee law in the United States-

The concept of political asylum in America existed long before the passage of the Refugee Act of 1980. The foundation of the United States was built upon a mixture of immigrants, many of whom had fled religious, political, or ethnic persecution. For almost one hundred years, the United States government refused to restrict the flow of aliens into the country.[41] This failure to restrict immigration was due in part to the belief by many United States citizens that the new nation should be open to all people who yearned to be free.[42]

Beginning in 1875, the U.S. government began to enact mild immigration restrictions. But it was not until the end of World War II that any statutory legislation explicitly about refugees was adopted.[43] That era, beginning in the early 1950s and continuing to 1980, can be characterized as a period when foreign policy openly dominated refugee determinations.[44] The old liberal ideal that flourished after World War II and allowed so many war refugees to be admitted was replaced by a new school of thought that distinctly favored refugees fleeing Communist countries.[45] Both the legislation enacted and the nationalities of refugees paroled into the United States during this period indicated a distinct favoritism for those fleeing communism.[46] This shift toward admitting large numbers of anti-Communist refugees was due to the injection of the Cold War sentiment of United States foreign policy into the refugee determination process. This shift had a major influence on all subsequent refugee legislation and continued to influence refugee policy even after the enactment of the Refugee Act.[47]

In 1980, Congress enacted the Refugee Act, defining a refugee in INA §101 (a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) as:

Any person who is outside any county of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.[48]

An important objective of the 1980 Refugee Act was to eliminate geographical and ideological preferences, and to apply a neutral refugee definition across the board. It is the duty of the United States to apply the Act according to each individual applicant’s case facts. This approach uses helpful knowledge of the human rights conditions existing in the applicant’s homeland, rather than ignoring a country’s human rights conditions and focusing instead on the relations the United States has with a specific county.

Asylum and withholding of deportation are two distinct forms of relief. First, there is no entitlement to asylum; it is only granted to eligible refugees pursuant to the Attorney General’s discretion.[49] Once granted, however, asylum affords broad benefits. When granted asylum, the alien may be eligible for an adjustment of status to that of a lawful permanent resident pursuant to § 209 of the Refugee Act of 1980, 8 U.S.C.S. § 1159, after residing in the United States for one year, subject to numerical limitations and the applicable regulations.[50]

Under the U.S. Supreme Court’s analysis of the plain language of the Act, its symmetry with the United Nations Protocol, and its legislative history, the Court held that an applicant for asylum must show a “well-founded fear of persecution,” but an alien need not prove that it is ‘more likely than not’ that he or she will be persecuted in his or her home country.[51] The Court specifically declined to attempt a detailed definition of “well-founded fear,” or an explanation of how that term should be applied.[52] The Supreme Court in INS v. Cardoza-Fonseca did not attempt to define “well-founded fear.” However, the Court in dictum in INS v. Stevic, gave some guidance as to the meaning of well-founded fear: “[s]o long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility.”[53]

The 1980 Refugee Act established two procedures for a person meeting the refugee definition to obtain protection in the United States. One set of procedures, referred to as the “Overseas Refugee Program” applies to persons who are outside the United States. The other set of procedures is applicable to persons seeking protection within the U.S., or upon arrival at its borders. Although both procedures are similar in their application of the refugee definition, they are quite distinct in conception and implementation.

The Overseas Refugee Program (also known as the U.S. Resettlement Program) provides for the President, in consultation with Congress, to make an annual determination as to the number of refugees to be admitted in the coming year; the Presidential Determination also designates how these slots are to be allocated world wide.[54] The numbers and allocations are to reflect both “humanitarian concern” and “national interest.”[55] Refugees admitted subject to the annual Presidential Determination are referred to as “normal flow refugees.”[56]

Although the 1980 Refugee Act sought to eliminate geographical and ideological preferences and to apply a neutral refugee definition, the U.S. Resettlement Program is inherently non-neutral. The U.S. Resettlement Program does take into account the geographical and ideological factors that were sought to be eliminated by the 1980 Refugee Act. Under this program an apparent preference towards Cubans exists, as evidenced by the fact that they receive the greatest allocation of refugee numbers of any Latin America and/or Caribbean nation.[57]

Human rights abuses in Cuba

The 1976 Cuban Constitution condemns imperialism and imperialist intervention and only within that context “guarantees the liberty and full dignity of man, the enjoyment of his rights, the exercise and fulfillment of his duties and the integral development of his personality.”[58] However, the Cuban Constitution constrains political rights, as “None of the freedoms which are recognized for citizens can be exercised contrary… to the existence and objectives of the socialist state or contrary to the decision of the Cuban people to build socialism and communism.”[59] According to the Cuban Constitution, the state is obligated to provide essential elements required for survival (such as medical care and employment), while the population in turn is obligated to accept that “The Republic of Cuba is a socialist state” that “organizes, directs and controls the economic life of the nation in accordance with the central plan of socioeconomic development.”[60]

Under the Universal Declaration of Human Rights, the right to freedom of speech and opinion, the right of peaceful assembly and association, and the ability to freely practice one’s religion are preserved.[61] Contrastingly, in Cuba, these rights are only protected to the point that the individual acts in accordance with the promotion of the socialist state. Cuba remains the only country in Latin America that represses nearly all forms of political dissent.[62] The Cuban government enforces political conformity by using criminal prosecutions, long and short-term detentions, mob harassment, police warnings, surveillance, house arrests, travel restrictions, and politically-motivated dismissals from employment.[63] In July 2007, the Cuban Commission for Human Rights and National Reconciliation, a respected local human rights group, issued a list of 240 prisoners incarcerated for political reasons.[64] The ongoing consequence leaves Cubans to be systematically denied basic rights to free expression, association, assembly, privacy, movement, and due process of law.[65]

The Cuban government also maintains a media monopoly on the island, ensuring that freedom of expression is virtually non-existent.[66] The justification for controlling the press so tightly is that free debate and information would undermine Cuba’s propaganda efforts. This eventually might make too many Cubans question their current system.[67] As a further qualification on human rights, the Cuban government forbids the country’s citizens from leaving or returning to Cuba without first obtaining official permission, which is often denied.[68] The government also frequently bars citizens engaged in authorized travel from taking their children with them overseas, essentially holding the children hostage to guarantee the parents’ return.[69] Given the widespread fear of forced family separation, these travel restrictions provide the Cuban government with a powerful tool for punishing defectors and silencing critics.[70]

In total, the Cuban government denies committing any human rights violations by relying on its Constitutional contract with the Cuban citizens. Because the state provides the elements necessary for survival, the citizens are thereby obligated to accept Cuba as a socialist state. To do anything that may undermine this ideal agreement leads to imprisonment, torture, or even death. When all aspects of daily life are controlled by the government, the people will be neither free to think for themselves nor free to seek out alternatives to the current form of government. Cuban citizens are trapped in a society that has no intention of ever letting go.

Human rights abuses in Haiti

Haiti is the poorest country in the Western Hemisphere, with 80% of the population living under the poverty line and 54% in abject poverty.[71] Two-thirds of all Haitians depend on the agricultural sector, mainly small-scale subsistence farming, and remain vulnerable to damage from frequent natural disasters. These concerns are exacerbated by the country’s widespread deforestation. Haiti has remained the least-developed country in the Americas, largely due to political instability and repeated episodes of violence.

Throughout Haiti’s history the country has experienced massive human rights abuses by its government. During the Duvaliers’ regime the Tonton Macoutes (Duvalier’s National Security) armed themselves and dominated the country through terror, cronyism and corruption.[72] In return for their loyalty to Duvaliers, the Macoutes could rob, extort, torture, and murder at will without fear of repercussion from the government.[73]After the fall of the Duvaliers’ regime in 1986, the 22,000 member Macoutes were officially disbanded and forced into hiding.[74] Despite this fact, the Macoutes continued human rights abuses throughout the countryside in the rural areas where 75% of the Haitian population lived.[75]

The passage of the March 1987 Constitution demonstrated that the island was finally headed in the right direction. The Constitution guaranteed freedom of the press and political parties.[76] Even so, the provisional government (CNG) insisted that the restrictive press and political parties laws, passed in the previous years, remain in effect.[77] The Port-au-Prince Bar Association even suggested that the military authorities had overstepped their boundaries, since no laws should have been passed before the new constitution was adopted.[78] “When a political regime does not know the limits of its actions, it becomes an autocratic regime,” the attorneys observed.[79]

During this time the United States Congress resumed aid to Haiti under the condition that the Haitian provisional military government would end its human rights abuses, ensure freedom of speech and assembly, to investigate and prosecute those responsible for past rights violations and require former Macoutes to turn in their weapons.[80] However, the United States refused to require the CNG to immediately begin respecting fundamental human rights during this period.

When Aristide won the presidency in 1990, his outspoken commitment to human rights and to ending Haiti’s legacy of dictatorship had made him very popular. Nevertheless, many Aristide detractors charged that he supported, or at least acquiesced to, mob lynching and “popular justice,” including the Pere Lebrun (the practice of necklacing a gasoline-soaked tire around a victim and setting them on fire).[81] According to a post-coup survey of Pere Lebrun incidents by the New York-based National Coalition for Haitian Refugees (NCHR), twenty-five people were reportedly killed in mob lynchings during the seven months of Aristide’s tenure. [82] By refusing to condemn Pere Lebrun, Aristide was seen as condoning this type of violence. In speeches, Aristide often told the poor and unemployed to basically take matters into their own hands against Haiti’s elite, the Macoutes, and all other non-supporters of Aristide.[83]

For all of Aristide’s wrongdoings, his eventual ousting was justified because of his mixed human rights record. Under military rule once again, human rights abuses continued, with the Haitian army massacring and wounding hundreds of civilians during and after the coup. They jailed dozens of Aristide supporters and many others were tortured. The right to free speech, public assembly, and free press was also abolished. During the three years of military rule following the coup, more than 5,000 Haitians were killed or disappeared, over 300,000 were internally displaced and another 50,000 fled the country.[84]

Haiti returned to constitutional rule in May 2006.[85] Haiti still has a long way to go in dissolving human rights abuses on the island and establishing a true democratic form of government. Haiti is still the poorest country in the Latin America and Caribbean region and amongst the poorest in the world.[86] The 2007/2008 United Nations Human Development Index ranked Haiti 146th out of 177 countries.[87] When Haiti’s violent past is combined with their bleak present, (15 governments in the last 20 years) any government will always be at risk of future conflicts. Optimistically, with the help of the IMF and foreign aid, Haiti will eventually become a secure and democratic society.

Cuba’s Preferential treatment under the Cuban Adjustment Act

For over forty year, the United States administration has used refugee policy primarily as a tool to discredit foreign policy adversaries. During the Cold War, the United States began accepting more refugees from communist regimes as a way to show the world the faults of these regimes. By accepting these refugees into the United States, the world could realize the repressive ways of these nations. As a result, democracy could be shown in a greater light. The United States accepted these refugees with open arms, especially Cubans.

As the most dominant communist nation in the western hemisphere, Cuba needed to be kept in check by the United States. The U.S. embargo was placed into effect with the intention of Cubans to realize the false misgivings of communism and Fidel Castro. During the Cold War, there was a huge incentive to have this open door policy towards refugees from Communist countries. Once the two nations severed diplomatic relations in 1961, Cubans were permitted to come to the United States on a parole basis, without the need to obtain visas, and were admitted as refugees even if they came illegally.[88]

Once in the United States, arriving Cubans did not experience some of the hardships suffered by other immigrant groups. In 1966, Congress enacted the Cuban Refugee Adjustment Act, allowing Cuban entrants to secure permanent residence in the United States.

“The Act provided, notwithstanding the collateral provisions of the INA which impose numerical limitations on those aliens whose status is adjusted, any Cuban who has been inspected, admitted or paroled into the United States subsequent to January 1, 1959 and who had been physically present in this country for two years is eligible to be adjusted to that of an alien lawfully admitted for permanent residence.”[89]

In Federation for American Immigration Reform v. Meese, the court explained that the 1976 amendments to the Cuban Refugee Adjustment Act manifested the legislature’s intent to continue the adjustment of Cubans without ‘charging back’ (reducing the current quotas) those aliens against the Western Hemisphere quotas.[90] These measures greatly increased the number of Cuban refugees to be allowed into the U.S. In 1980, Congress continued to acknowledge the viability of the Act by reducing the physical presence prerequisite from two years to one. [91]

One of the unique qualities of the Cuban Refugee Adjustment Act was that it allowed Cubans, unlike other asylum seekers, to adjust their status to that of permanent residents without showing a well-founded fear of persecution on account of race, religion, nationality, membership in particular social group, or political opinion. This preferential treatment has eased the integration of the Cuban exile population into the United States.[92]

1990’s Changes in Cuban Immigration Policy

By the 1990’s, Cuba’s international significance had diminished considerably with the fall of the Soviet Union. By 1994, as a result of the continued decline if economic and social conditions in Cuba, massive unrest and discontent continued to spread. On August 8, 1994, Castro responded to the riots by announcing that “he would not oppose the immigration of any Cuban wanting to leave for America,” that he would not block those wanting to leave the country, and that he could not guard the coasts of the United States. Immediately, Cubans rushed to the open sea on their makeshift boats and rafts without fear of retaliation from the Cuban government.[93] By September, 1994, more than 35,000 refugees had been picked up and transferred to holding centers throughout the Caribbean. Thousands more had drowned at sea.[94]

The United States responded quickly to the massive exodus. As the numbers of refugees escalated to crisis figures, President Clinton suspended the Cuban Adjustment Act of 1966, which had generously allowed Cubans to apply for permanent residency one year after arriving on American soil.[95] In other words, Cubans were no longer guaranteed the benefits of permanent residency simply by reaching American soil. Additionally, Clinton barred Cuban refugees’ direct entry into the United States, and ordered refugees found at sea to be detained at the U.S. Guantanamo Naval Base, which is ironically on Cuban soil.[96]

The crisis was not resolved until September 9, 1994, when the United States and Cuba entered into the Cuban Migration Agreement.[97] Both the United States and Cuba publicized that the agreement was aimed at saving human lives, and was enacted to encourage only legal immigration. Following the agreement, the United States promised to admit at least 20,000 Cuban immigrants annually.[98] In exchange, Cuba agreed to take effective measures to deter unsafe departures.[99] With Cuba clamping down on departures by sea, the number of illegal immigrants declined dramatically and the mass exodus came to an end by December of 1994.[100] In addition, Cuba also agreed to dissuade its citizens from leaving unsafely and promised not to retaliate against those who returned after unsuccessfully attempting to immigrate to the United States.[101]

Cubans have had a much different experience than immigrants from other countries. As recently as April 1996, when moves were made to repeal the Cuban Refugee Adjustment Act, the Senate voted by a margin of 62-37 to retain the legislation in place until a democratic government is in place in Havana, and legislation to that effect was enacted.[102] This indefinite retention of the Cuban Refugee Adjustment Act preserves the preferential treatment of Cuban nationals seeking asylum in the United States, at least until the end of the communist rule.

U.S. /Haitian Policy-

The 1980 Refugee Act provided that every individual who came to the United States seeking protection would have the right to access adjudicatory procedures in order to apply for asylum and withholding. The only problem for the United States was applying the act equally to all individuals regardless of race or nationality. In the Haitian context, the principles of refugee protection have been abandoned time and again in favor of returning Haitians back to their country, despite a valid claim for seeking refugee status. In Haitian Refugee Center v. Civiletti, the court examined this blanket discrimination of Haitians.[103] In that case, each of the 5000 plaintiffs in the case sought asylum, and none received it.[104] They were told they had no “well founded fear of persecution” on return.[105] However, the court found uncontradicted evidence that those among them whom the Haitian government classifies as political opponents face grave dangers.[106]

The Immigration and Naturalization Service (INS) had established a Haitian Program during the spring and summer of 1978 for the purpose of disposing of a backlog of asylum claims filed by Haitian immigrants.[107] The existence of the program, and its impact, are uncontroverted. Under the I.N.S.’ Haitian Program, all of the asylum claims were denied.[108] These numbers imply more than a coincidental uniformity. But results, in and of themselves, do not always signal unfair treatment. Unfairness arises when such results are the intended result of prejudicial discriminatory actions, and when the adjudication of claims violates due process.[109] That is precisely the case here. The Haitian asylum claims were prejudged because they were predetermined to lack any merit. Accordingly, they were reviewed with the intent to deny them.[110] An expedited process was set up for the sole purpose of expediting review of Haitian asylum applications, and expelling Haitians from the United States. By its very nature and intent, that process was prejudicial and discriminatory.[111]

Despite this condemnation of the United States government’s Haitian policy in Civiletti, the INS continued to dismiss Haitian applications across the board for refugee or withholding status as economic migrants. By dismissing them as economic migrants, the United States could show that they did not satisfy one of the five enumerated classes under the 1980 Refugee act, as economic migrants are not an enumerated class.[112]

The U.S. continued this intended disparate treatment of Haitians through the INS’ improper screening and arbitrary detention system of these Haitian immigrants. In Louis v. Nelson, the plaintiff class members challenged the detention policy enforced by the defendants (members of the Immigration and Naturalization Service).[113] The plaintiffs claimed that they were entitled, under the provisions of the Administrative Procedure Act (APA), to notice and an opportunity to comment. They further contended that the new detention policy was either discriminatory on its face against Haitians or it was discriminatorily applied.[114] The district court summarily held that the new detention policy was discriminatory on its face and in its application.[115] The government then appealed the district court decision, leading to a historic 136-page decision.[116]

On appeal, the Eleventh Circuit held that excludable aliens enjoyed the protection of the First and Fifth Amendments and, most significantly, that the INS had intentionally discriminated against Haitians on the basis of race or national origin.[117] The Circuit panel described the substantial documentary and testimonial evidence of the mistreatment suffered by Haitian refugees as demonstrating a stark and “historic pattern of discrimination.”[118] This was the first decision in U.S. history to explicitly find that the federal government had engaged in unlawful discrimination on the basis of race or national origin in a non-employment context.

Adding fuel to the fire, in 1981 President Reagan instituted an interdiction policy towards Haitians. Pursuant to this policy, bona fide refugees were not to be returned to Haiti. Despite the mandate of President Reagan not to turn away bona fide refugees, since the policy’s inception in 1981 till 1991, over 23,000 Haitians were intercepted and only twenty eight were found qualified to apply for asylum in the United States.[119]

The U.S. interdiction policy has been modified to react to the changes in events in Haiti. One such modification was instituted shortly after Haitian President Aristide was overthrown by a military coup de etat in September of 1991. In response to the mass exodus of Haitians fleeing the country, on May 23, 1992 President George Bush issued an Executive Order dropping any pretense of screening for refugee eligibility, and all Haitians interdicted in international waters were directly repatriated.[120] This policy was unlike President Reagan’s mandate because here even bona fide refugees would be immediately returned to Haiti without question. Hypothetically, under this policy, if President Aristide himself was interdicted, he too would have been returned to the militarily ruled island.

In Sale v. Haitian Centers Council, the respondents were organizations representing interdicted Haitians and Haitians seeking a temporary restraining order. The respondents contended that the Executive Order violated § 243(h)(1) of the Immigration and Nationality Act of 1952 (INA or Act) and Article 33 of the United Nations Convention Relating to the Status of Refugees.[121] Prior to the executive order, the Coast Guard had interdicted over 34,000 Haitians.[122] And when temporary facilities were set up in Guantanamo, Cuba that could not accommodate any additional migrants, President Bush responded with his Executive order.

The Court necessarily had to interpret whether the changes made by the 1980 Refugee Act amendment – the addition of the phrase “or return” and the deletion of the phrase “within the United States” – provided for extraterritorial application under § 243(h)(1).[123] Both parties argued that the plain language of §243(h)(1) was dispositive. The Court held that it would have been extraordinary for Congress to make such an important change in the law without any mention of that possible effect. Not a scintilla of evidence of such intent can be found in the legislative history to apply the Act extraterritorially.[124] Therefore, the Court held that the Executive order did not violate the statute or treaty, and the President could continue to order the interdiction of Haitians on the high seas.[125] This interdiction of Haitians continued until May 1994, when President Clinton finally vindicated the Haitian plaintiffs by terminating the policy, conceding that the United States was returning bona fide refugees to torture at the hands of the Haitian military.[126]

Since the Clinton Pronouncement

After President Clinton severely criticized the Haitian interdiction policy, the United States began a screening practice on the boats that were intercepted by the U.S. coastguards. Within a short period of time the magnitude of the flows outpaced the capacity of shipboard screening, and President Clinton announced that the screening would take place at Guantanamo Bay, Cuba and other “safe havens.”[127] This Haitian refugee crisis saw no end until the Cuban military government returned power to President Aristide in October 1994. This return of power to President Aristide brought order back to the island and decreased the number of migrants dramatically.[128]

Cuban v. Haitian Comparison

Both island nations are extremely close to the United States, but the treatment of immigrants from these nations are vastly different. Since the Cuban revolution, the United States has established measures that were beneficial to Cuban immigrants, such as the Cuban Adjustment Act. Under the Cuban Adjustment Act, Cubans Nationals, unlike other asylum seekers, are able to adjust their status to that of permanent residents without showing a well-founded fear of persecution on account of race, religion, nationality, membership in particular social group, or political opinion. This biased treatment continues today, and one such glowing example illustrates. On November 8, 2002, the Bush administration announced that all illegal immigrants who arrive by sea will face expedited deportation and be detained while their cases are pending.[129] This was an effort by the administration (President George W. Bush) to deflect criticism that its treatment of Haitians is discriminatory.[130] The announcement applied to all seafaring illegal immigrants except Cubans, who continue to fall under the 1966 Cuban Adjustment Act passed by Congress.[131] Although INS declined to comment on the announcement, they did state that this was not a new policy and it only reaffirms the old policy.[132]

The United States through its’ treaties must recognize that all refugees are to be treated equally and not with bias towards some countries or discrimination towards others, strictly on the basis of political ideology. Currently the United States faces a crossroads of two different policies that need to be substantially changed in order to truly fulfill their obligations under the 1980 Refugee Act.

Future of two vastly different policies- Cuba

2008 U.S. Elections

Recently President George W. Bush made a speech in Miami where he said that he would not relax economic restrictions against Cuba until the country: releases political prisoners, allows opposing parties to organize and speak, and for Cuba to have free elections which would be monitored by objective outside observers.

However, many believe that the upcoming 2008 U.S. presidential election could change this policy and spark hope for the repeal of the Embargo. Both Democratic candidates recognize the failures in the current Cuban policy while the republican nominee, John McCain, is vastly against repealing the Embargo. He has stated in the past that when he was a prisoner in Vietnam, a Cuban instructor tortured his fellow-inmates (though this seems inconsistent with his leading role in restoring relations with Vietnam). If John McCain were to win November’s presidential election, such an effort to repeal the Embargo would be unlikely, since he is a strong supporter of the embargo.

However, on the Democratic side, Hillary Clinton’s campaign says that she recognizes that the embargo has failed.[133] But the only candidate to have proposed a new policy is Barack Obama. In an article in the Miami Herald last year, he said he would reverse Mr. Bush’s clampdown on travel and remittances.

These divisions of opinion could become a factor in November’s election—but the congressional race is whole different ballgame. Three districts in south Florida have long been dominated by hard line Cuban-American Republican voters. For the first time since 1992, the Democrats are mounting a strong campaign for Raúl Martínez, a feisty former mayor of Hialeah, and Joe García, a former spokesman for the Cuban-American National Foundation.[134] They both support the embargo but are campaigning against the travel crackdown and stressing non-Cuban issues. (A third Democrat, Annette Taddeo, Colombian-American businesswomen, has also entered the race, but is virtually a political unknown.)[135]

If just one of those available seats were to by won by the Democrats, the floodgates of change in Cuba policy could open. “When Congress realizes there is no unanimity on the embargo, the policy breaks down,” says Silvia Wilhelm, an opponent of the embargo who heads the Cuban-American Commission for Family Rights.[136]

Prior to his withdrawal from the presidential campaign, Democratic candidate Chris Dodd sought to one-up his more popular rivals by going to Miami to demand an end to the trade embargo with Cuba.[137] In a statement given to The Miami Herald, Dodd favored opening a U.S. embassy in Havana, allowing Americans to do business there, and nixing TV Martí, the U.S.-funded broadcast routinely blocked by Cuba.[138]

”I believe the time has come to say publicly what many Americans believe — our Cuba policy has neither served America’s interests nor brought democracy to Cuba,” reads the speech Dodd plans to give in Miami today. “It has only served to strengthen the current regime. It has been an abject failure.”[139]

Change in Cuban Leadership

After almost half a century of Fidel Castro’s imposed communism and defiance of a unilateral American embargo, on Tuesday February 19th, 2008 he announced his retirement as Cuba’s president and as its “commander-in-chief.”[140]

With Raúl Castro at the helm, there will surely be no major shift in Cuba’s political or economic model. No social upheaval is expected.[141]Indeed, the new president has indicated that there are no plans to reform the one-party political system. And he has said he will consult with his older brother on all major decisions.[142]

The government is not expected to make any sudden changes in the overall economic policy stance in the year ahead. However, adjustments in some areas, including price reforms, and liberalization in food production and distribution, are likely to emerge from the discussion of economic efficiency and living standards. On the other hand, progress in improving the efficiency of economic management will be constrained by conservatism, price distortions and the government’s commitment to full employment. Certainly, full market liberalization of the type envisaged in the “transition” economies of the former Soviet bloc is not on the agenda.[143]

Still, given Raúl’s own advanced age, speculation will continue as to who will be the next leader of the communist nation, perhaps in five years when the Raul’s term ends and he might not seek another. By then the balance of power between the older revolutionaries and the younger leaders may well have changed, raising the possibility of a truer transition to a post-Castro era.[144]

How the Cuban Embargo should eventually be lifted

With both changes in the administration in the United States and leadership in Cuba coming, now is the appropriate time to reevaluate the necessity of the Embargo. Cuba’s future has become an important economic and social issue that the United States must not turn a blind eye to any longer.

At the time the embargo was first considered, the United States accounted for more than two-thirds of Cuba’s trade, supplied three-quarters of Cuba’s imports, and purchased two-thirds of Cuba’s exports.[145] By all estimates the Cuban Embargo would have been thousands of times more costly to the Cuban economy than it would have been to the U.S. economy. However, it is now evident that the Embargo failed because of Cuba’s ability to circumvent the embargo (turning to the Soviet Union). Also, U.S. policymakers underestimated Fidel Castro time and again, and the goal of the embargo was flawed to begin with. These reasons should persuade the United States to consider overturning this flawed foreign policy against Cuba in hopes of leading to a capitalistic and democratic society.

The embargo, as it stands, should not be abandoned abruptly, but should be phased out gradually. The United States should first consider relaxing the travel ban to Cuba. At first, travel by Americans is not likely to have a major impact on the Cuban economy if the United States continues to keep its current spending limits for travelers.[146] However, the ramifications of allowing travel by Americans are great. A free discourse of ideas between both Americans and Cubans alike will slowly develop. This free exchange of ideas will soon open the eyes of Cubans who have no outside knowledge of what a democratic society is or how it would benefit the Cuban people as a whole.

Secondly, the United States should slowly decrease the current trade restrictions with Cuba. This would allow the United States to retain the respect of the hard line exile Cuban community and also promote relations with the country over a number of years before repealing the Embargo entirely. Cuba would be a valuable trade ally in the future due to its location (90 miles of the coast of the U.S.). Cuban investors cite the ability of Cuba’s new Mariel port set to open in 2012, as an ideal port to aid in U.S. import and export industry.[147] The port would be able to handle the transfer of goods between large container ships arriving at the port to smaller vessels which could then reach dozens of harbors in the southern United States.[148] In addition, the tourism industry would see a major boom if American tourists were given the ability to visit Cuba (directly) once again.

The goal of this policy change toward Cuba would be multi-faceted: 1) repeal a foreign policy that has outlived its use, 2) establish relations with the new leadership of Cuba who would be more open to the possibility of having democratic elections and open the island to capitalism, 3) new markets for trade, and 4) open discourse with the Cuban people will eventually lead to a call for democratic elections and capitalism.

The original intentions of the Embargo were to oust the existing government by imposing economic sanctions. I propose the exact opposite: by completely abrogating the Cuban Embargo it will eventually lead to end of socialism on the island and an eventual shift toward a capitalistic/democratic society in Cuba.

Ramifications of a Post Embargo Cuba on U.S. Asylum and Refugee law

The future of immigration policy towards Cubans will likely change once (if) the Cuban Embargo is lifted and both governments support a democratic transition on the island. For almost four decades, the United States has accepted hundreds of thousands of Cubans, bypassing the standard rules for granting asylum or admitting aliens as permanent residents.

This preferential treatment given to Cuban immigrants will almost certainly cease with the end of communism in Cuba. With changes in leadership in Cuba and the United States, a reevaluation of current guidelines toward the granting of asylum and withholding will inevitably occur. The current preference towards Cubans, under the Cuban Refugee Adjustment Act, is scheduled to be repealed upon the establishment of a democratic government in Cuba.[149] Therefore, Cubans would probably be treated like any other aliens in regards to the 1980 Refugee Act, and not be given special benefits based on the lone fact that the are former citizens of Cuba. One of the major goals of the 1980 Refugee Act was to eliminate geographical and ideological preferences, and to apply a neutral refugee definition across the board. By repealing the Cuban Adjustment Act, the United States would be doing just that.

With a democratic form of government on the island, it is assumed that the human rights abuses currently on the island will diminish. This will ultimately lead to an even greater number of Cuban refugees being denied asylum simply because the majority will not fall under one of the enumerated classes of the 1980 Refugee Act. Eventually these future immigrants will face the same plights of current Haitian refugees, being painted as economic immigrants rather than political immigrants based on the current status of their democratic government.

Future of Asylum for Haitian refugees

Under the auspices of the 1980 Refugee Act, Haitians have continually sought asylum in the United States based on their well-founded fear of persecution. One of the major objectives of the 1980 Refugee Act was to eliminate geographical and ideological preferences, and to apply a neutral refugee definition across the board. However, when it comes to refugees of Haitian descent the act has not been applied in a case by case basis focusing on the individual seeking asylum. Instead the United States, for years, has overwhelmingly denied Haitian immigrants as economic immigrants, thereby excluding them from being granted asylum.

Since many asylum officers find the distinction between economic and political refugees fraught with interpretive difficulties. Asserting that the refugees are fleeing Haiti for economic rather than political reasons ignores the fact that retaliation against opposition members often will be economic in nature. In countries such as Haiti, where political turmoil is constant, the ruling government controls scarce resources such as jobs and food. Regardless of the opposition level, whether grass roots or through an organized party, one of the most effective tools for suppressing dissent is denial of the opportunity to earn a livelihood. Although U.S. courts have continually recognized that this denial can amount to persecution, INS officers continue to neglect to draw this conclusion.

Sadly, the current status quo will likely continue in the United States with regards to the treatment of Haitians under asylum and refugee law. With a current democratic government in Haiti, every Haitian national seeking asylum will continue to have to overcome the stigma of initially being seen as an economic immigrant based solely on their descent. In addition, the fact that the current government has sought help from the IMF and other foreign entities, will bolster the Haitian government and place more weight on Haitian nationals to show that they have suffered persecution that the government has either been apart of or chosen to do nothing about.

The 1980 Refugee Act should be applied according to each individual applicant’s case facts and other human rights conditions existing in the applicant’s homeland. However, so long as the Haitian government is seen as moving in the right direction and U.S. courts will continue to turn a blind eye to the apparent discrimination of Haitians in the refugee context, and the status quo will reign.

What we can do to change the Haitian situation?

In order for change to occur, the Haitian community in the United States must continue to pressure their representatives to apply the 1980 Refugee Act in a just and fair manner. They must continue to place constant pressure on the U.S. President and Congress to treat Haiti fairly. U.S. activists need to explore ways to empower their own populations to affect U.S. domestic and foreign policy. The greatest thing these Haitian activists can do – aside form changing U.S. policy – is to reach out and support grassroots movements on the island.

When Aristide took office in February 1991, he suggested to a visiting group of Haitian emigrants that they form a Tenth Department organization.[150] The island was divided into nine different departments (like counties in the states) and the tenth department could be Haitians living abroad. The organization was formed and soon held numerous fundraising appeals, which raised hundred of thousands of dollars to help the new government.[151] After the coup against Aristide occurred the organization managed to spearhead several successful political actions, including a protest with over 60,000 people blocking downtown Manhattan, demonstrating their disapproval of the tacit U.S. support of the military coup.[152] The Tenth Department was also involved with helping turn out between 260,000 and 300,000 Haitian Americans to vote for Bill Clinton in the 1992 election (seeing a Democrat as a preferable substitute to then incumbent Bush administration).[153] The greatest way to bring about change is for these Haitians abroad to continue to exert pressure on the international community to recognize their plight as U.S. asylum seekers.

The United States should take careful consideration with how they treat the nation of Haiti and no longer treat its nationals discriminately. “The United States is best served by a democratic and stable Haiti which is able to pursue economic and social development for its entire population,” Haitian Foreign Minister Claudett Werleigh.[154]

The Haitian supporters abroad should show the international community that the United States is not holding up to their treaties and needs to apply them across the board rather discriminating against some countries (Haiti) and preferring others (Cuba) based upon political reasons. They should also find out how each presidential candidate for the upcoming 2008 election will deal with these Haitian discrimination policies. Then they could rally support, like they did in 1992 to elect Bill Clinton, and support their top choice. Hopefully with a new administration some of the guidelines towards the granting of asylum or withholding would be reviewed and revised.

Conclusion

This paper illustrates the obvious differences that the current U.S. refugee policy has towards refugees of one country over another. An important objective of the 1980 Refugee Act was to eliminate geographical and ideological preferences, and to apply a neutral refugee definition across the board. Haitian nationals seeking asylum in the U.S. are often the victims of indiscriminate policies of INS officers. Meanwhile, Cubans are given preferential treatment under the Cuban Adjustment Act and are granted asylum without fulfilling the requirements of the 1980 Refugee Act. The United States must fulfill their obligations under the 1980 Refugee Act and apply a neutral refugee definition. With changes in leadership in all three countries and international pressure to fulfill obligations under the 1980 Refugee Act, the United States should approach this issue and delineate the proper changes in INS protocol and apply a neutral refugee definition. The discriminatory status quo is no longer good enough; the United States must change their policy and adhere to their international obligations.

[1] Peter H. Smith, Talons of the Eagle: Dynamics of U.S. – Latin American Relations 32 (Oxford University Press, 2000).

[2] Leslie Bethell, Cuba: A Short History 36 (Cambridge University Press 1993).

[3] Marifeli Perez-Stable, The Cuban Revolution: Origins, Cause, and Legacy 37 (Oxford University Press 1999).

[4] Donna Rich Kaplowitz, Anatomy of a Failed Embargo: U.S. Sanctions Against Cuba 17 (Lynne Rienner Publishers 1998).

[5] Smith, supra note 1, at 63.

[6] Id. at 118.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 128.

[11] Smith, supra note 1, at 165.

[12] Bethell, supra note 2, at 102.

[13] Kaplowitz, supra note 4, at 51.

[14] Smith, supra note 1, at 168.

[15] Telephone Interview with Zenaida Mantel, in Orlando, Fl. (Nov. 31, 2005).

[16] Id.

[17] Perez-Stable, supra note 3, at 83.

[18] The World Fact book, Central Intelligence Agency, available at https://www.cia.gov/library/publications/the-world-factbook/geos/cu.html#Govt (last visited 4/25/08).

[19] Id.

[20] Id.

[21] The Comandante Retires- Sort Of, The Economist (Feb. 19, 2008) available at https://www.economist.com/displayStory.cfm?story_id=10715023 (last visited 4/25/08).

[22] Ralph Pezzullo, Plunging into Haiti: Clinton, Aristide, and the Defeat of Diplomacy 36 (University Press 2006).

[23] Id. at 53.

[24] Id. at 54.

[25] Id. 55.

[26] Id.

[27] Id. at 56.

[28] Id. at 56-7.

[29] Id. at 57.

[30] Pezzullo, supra note 22, at 58.

[31] Id. at 79.

[32] Id. at 77.

[33] Id. at 85.

[34] Id. at 115.

[35] Pezzullo, supra note 22, at 116.

[36] Id. at 147.

[37] Id. 106.

[38] Id. at 271.

[39] Id.

[40] The World Fact book, Central Intelligence Agency, available at https://www.cia.gov/library/publications/the-world-factbook/geos/ha.html (last visited 4/25/08).

[41] Maureen O’Connor Hurley, The Asylum Process; Past, Present, and Future, 26 New Eng. L. Rev. 995, 1000 (1992).

[42] Id.

[43] Id.

[44] Id. at 1005-06.

[45] Id. at 1006.

[46] Id.

[47] Id.

[48] INA §101 (a)(42)(A), 8 U.S.C. § 1101(a)(42)(A)

[49] Ins v. Cardoza-Fonseca, 480 U.S. 421, 429 (1987).

[50] Id.

[51] Id. at 449.

[52] Matter of Mogharrabi 19 I. & N. Dec. 439 (BIA 1987)

[53] INS v. Stevic, 467 U.S. 407 (1984).

[54] INA § 207, 8 U.S.C. § 1157

[55] Id.

[56] Id.

[57] Karen Musalo et al., Refugee Law and Policy: A Comparative and International Approach, 76 (Carolina Academic Press 2007).

[58] Constitution of the Republic of Cuba, 1976: Art. 8, 12.

[59] Id. at Article 61

[60] Id. at Article 1; Article 16

[61] Universal Declaration of Human Rights, December 10, 1948, available at https://www.un.org/Overview/rights.html (last visited 4/25/08).

[62] Cuba, Events of 2007, World Report 2008, Human Rights Watch available at https://hrw.org/englishwr2k8/docs/2008/01/31/cuba17767.htm (last visited 4/25/08).

[63] Id.

[64] Id.

[65] Id.

[66] Id.

[67] Jane Healy, Let Americans learn firsthand about Cuba’s lack of free press, Orlando Sentinel, Oct. 28, 2002.

[68] Cuba, Events of 2007, supra note 62.

[69] Id.

[70] Id.

[71] The World Fact book, Central Intelligence Agency, available at https://www.cia.gov/library/publications/the-world-factbook/geos/ha.html#Econ (last visited 4/25/08).

[72] Haiti: Dangerous Crossroads 165 (Deidre McFadyen, et al., eds. 1995).

[73] Pezzullo, supra note 22, at 84.

[74] Haiti: Dangerous Crossroads, supra note 72 at 167.

[75] Id.

[76] Id. at 169.

[77] Id.

[78] Id. at 170.

[79] Id.

[80] Id. at 173.

[81] Id. at 176.

[82] Id.

[83] Id. at 177.

[84] Id.

[85] The World Fact book, supra note 71.

[86] Haiti: Joint Staff Advisory Note of the Poverty Reduction Strategy Paper, IMF Country Report No. 08/114 available at https://www.imf.org/external/pubs/ft/scr/2008/cr08114.pdf (last visited 4/25/08).

[87] Id.

[88] Matias F. Travieso-Diaz, Immigration Challenges and Opportunities in a Port-Transition Cuba, 16 Berkeley J. Int’l L. 234, 239 (1998).

[89] 8 U.S.C. § 1255.

[90] Federation for Am. Immigration Reform v. Meese, 643 F. Supp. 983, 988 (D. Fla. 1986).

[91] Id.

[92] Id.

[93] Id.

[94] Id.

[95] see David Lyons, Asylum Rule Change Decried: Administration Says It Has Discretion to Alter 1966 Cuban Adjustment Act, Nat’l, Sept. 5, 1994, at A6 (stating that legal scholars conclude that case law supports the legality of Clinton’s executive decision).

[96] Id.

[97] see Joint Communique on Migration, Sept. 9, 1994, U.S.-Cuba, 5 U.S. Dep’t State Dispatch 37 (1994).

[98] Id.

[99] Id.

[100] Id.

[101] Id.

[102] Pub. L. No. 104-208, Title VI, 606, 110 Stat. 3009-695, 8 USCA 1255 note (1996).

[103] Haitian Refugee Center v. Civilletti, 503 F. Supp. 442 (S. D. Fla. 1980).

[104] Id.

[105] Id. at 474.

[106] Id.

[107] Id. at 510.

[108] Id. at 511.

[109] Id.

[110] Id.

[111] Id.

[112] Id.

[113] Louis v. Nelson, 544 F. Supp. 973 (S.D. Fla. 1982).

[114] Id.

[115] Id.

[116] Jean v. Nelson, 711 F.2d 1455 (11th Cir. Fla. 1983).

[117] Id. at 1509.

[118] Id. at 1491.

[119] Cheryl Little, Untied States Haitian Policy: A History of Discrimination, 10 N.Y.L. Sch. J. of Hum. Rts. 269, 269-303 (1993).

[120] See Exec. Order No. 12807, 57 Fed. Reg. 23133 (1992).

[121] Sale v. Haitian Ctrs. Council, 509 U.S. 155 (U.S. 1993).

[122] Id.

[123] Id.

[124] Id. at 176.

[125] Id. at 187.

[126] See Remarks Announcing William H. Gray III as Special Adviser on Haiti, 30 Weekly Comp. Pres. Doc. 1010 (May 8, 1994).

[127] Musalo, supra note 57, at 130.

[128] Id.

[129] Rafael Lorente, et al., Illegal migrants to be held, U.S. says, Orlando Sentinel, Nov. 9, 2002.

[130] Id.

[131] Id.

[132] Id.

[133] Movement in Miami, The Economist (Feb. 21, 2008) available at https://www.economist.com/displayStory.cfm?story_id=10731584 (last visited 4/25/08).

[134] Id.

[135] Id.

[136] Id.

[137] Beth Reinhard, Dodd wants to end Cuba embargo, The Miami Herald (Sep. 8, 2007) available at https://www.miamiherald.com/campaign08/story/229915.html (last visited 4/25/08).

[138] Id.

[139] Id.

[140] The Comandante Retires- Sort Of, supra note 21.

[141]Raul’s rise, The Economist (Feb. 26, 2008) available at https://www.economist.com/displayStory.cfm?story_id=10754689 (last visited 4/25/08).

[142] Id.

[143] Id.

[144] Id.

[145] Kaplowitz, supra note 4, at 198.

[146] Healy, supra note 67.

[147] Bye-Bye embargo?, The Economist (Nov. 22, 2007) available at https://www.economist.com/displayStory.cfm?story_id=10180002 (last visited 4/25/08).

[148] Id.

[149] 8 U.S.C. § 1255.

[150] McFadyen, supra note 72, at 202.

[151] Id.

[152] Id.

[153] Id.

[154] McFadyen, supra note 72 at 69.