One of my Refugee Law students, Minoru Ohye, has written an interesting  and timely paper wherein he argues that the U.S. should end what has been come to be called the “Wet Foot Dry Foot” policy toward accepting Cuban refugees.  Mr. Ohye was born in Cuba and escaped from there with his family as a boy.  He writes from a unique perspective. Read and learn…

Stopping Once and for All the Wet Foot Dry Foot Policy for Cuban refugees: a Student’s reasons

By Minoru Ohye


“Yo soy un hombre sincero De donde crece la palma, Y antes de morirme quiero Echar mis versos del alma”[1]. This is the first stanza of the famous poem by Jose Marti, the apostle of Cuban independence. Loosely translated, I am an honest man, and before I die, I wish to speak of what is in my soul[2]. In my soul, I carry the weight of centuries of injustice suffered by the people of Cuba. Much like Jose Marti, whose life ended in an ill-fated two-man suicide charge against the Spanish troops [3], with this article I seek to “charge” against what I see as the latest injustice to be suffered by the Cuban people… the wet foot dry foot policy of the Cuban Refugee Adjustment Act. The Cuban Refugee Adjustment Act has been the subject of much debate. Some seek to preserve it while others seek to repeal it. This article will propose the use of the Cuban Refugee Adjustment Act as it was originally intended… to offer protection to those seeking to flee the Castro regime, but also used as a cohesive part of the overall United States policy toward Cuba

         There have been numerous newspaper articles, books, magazines, and indeed even Law review articles written both in support and in opposition of the CCA[4]. The one thing that sets me apart from a vast majority of those authors is that today I am a naturalized Citizen of the United States because of the Cuban Refugee Adjustment Act.  I am a Gusano, a worm. That is a term, intended to be pejorative, used by members of the Comités de Defensa de la Revolución (Comités de Defensa de la Revolución or Committees for the defense of the revolution)[5] to refer to any Cuban who is not pro-Castro, and pro-Communism, but one that we Gusanos wear with pride. Sadly only those of United States who have made it out of Cuba can openly proclaim our dislike for communism, the Cuban government or any of its policies. The mere disapproval of the government is a crime punishable by long prison terms[6]. Those long prison terms come after the brutal torture and beatings at the hands of the G2[7].

           Many who disagree with or dislike Castro’s policies, like millions of others in oppressive countries, when they reach their breaking point, simply seek to leave. People fleeing most countries have difficulty finding another country that will take them in[8]. Cubans in contrast face a completely different problem; a problem faced today by only a small handful of nations. Cuba has a ban on Emigration[9]. Legal emigration is seldom granted to productive members of Cuban society[10].

Many attempt to flee the island nation by the only means possible; by taking to the sea in whatever floats.[11] In the past, the Cuban Refugee Adjustment Act had all but guaranteed fleeing Cubans not only acceptance to the United States, but also safe passage to freedom[12]. The Cuban Refugee Adjustment Act still allows Cubans who reach the United States a grant of asylum. Those interdicted at sea, however, are now repatriated unless they can prove their fear of persecution. If they can prove their fear of persecution, according to the Cuban Refugee Adjustment Act, they are not admitted to the United States; instead, they are resettled to one of 11 other countries who have agreed to accept them[13]. )

This new policy has become popularly known as the wet foot/dry foot policy[14] because it draws a sharp distinction between those who make it to United States soil (dry foot) and those who have not yet made it (wet foot). The policy was intended to be a step toward normalizing diplomatic relations between the United States and Cuba[15]. The intent was that those seeking to leave Cuba would apply for a visa to do so instead of embarking on a dangerous journey[16]. The outcome has been quite different though.

While this author immigrated to the United States prior to the wet foot dry foot policy, he followed the same route as many of the “dusty foot” Immigrants. In late 1979, the author, an 11-year-old child at the time, accompanied his parents and younger sister on a vacation to Mexico City. This was an extreme rarity. Normally Cubans are not permitted to travel internationally. Because the author’s father was a diplomat for the Japanese Embassy in Cuba, and because the family left a daughter behind, they were granted permission as a special privilege to travel recreationally. Through his contacts after years as an attaché to the Japanese embassy, the author’s father was able to hire a “coyote”[17] to bring the family to the United States. After a flight north, to Reynosa, in the middle of the night, the family was rowed across the Rio Grande, one at a time, then driven to McAllen, Texas where the family caught a flight to Miami. Once in Miami, with the help of relatives, the family was able to hire an attorney and apply for political asylum.

The author’s sister, who was left behind, had to disavow any knowledge of the family’s plan to defect to avoid prosecution. The sister with her husband and children had to go to the airport to meet the flight on which the family was expected to arrive and report to the authorities that her parents had not returned as planned. Still, by the time she returned home from the airport, she found her home looted and vandalized with the word “Gusano” painted across the front. Her husband, an electrical engineer who held a prominent position in Havana was instantly fired, and anyone who came to visit them was also labeled suspect.

This article will explain the history of the Cuban Refugee Adjustment Act in the context of United States-Cuba relations[18] and the rise of the Duty Foot phenomenon[19] due to the Wet Foot/Dry Foot policy. This article will also go further to attempt to put Cuban immigration to the United States in the context of the overall United States policy towards Cuba[20], and propose definitive and lasting solutions to the Cuban migration policy, the Cuban Refugee Adjustment Act, and the overall United States Policy towards Cuba. [21]


In 1995, the United States and Cuba struck a new agreement[22]. The United States agreed that it would stop admitting people found at sea between the two nations. Also as a result of the agreement, approximately 33,000 Cubans encamped at the United States base at Guantanamo Bay were admitted to the United States under humanitarian visas. Cuba agreed that those who were repatriated after interdiction would not be retaliated against. The United States’ State Department was required to monitor whether the repatriated Cubans suffered any reprisals. Part of the agreement was that both sides would engage in further migration discussions biennially.

While this agreement seems reasonable, when put into practice, it has become evident that Cuba entered into the agreement with less than honest intent. Cuba has refused to discuss key obstacles to enforcing the existing agreement, or amending it where needed. The State Department has therefore cancelled further talks. As a result, those interdicted at sea face the risk of repatriation without much protection at all from the agreement. As a result of this agreement, the US Coastguard returns Cubans interdicted at sea to Cuba, as the agreement requires, however, obstacles from the Cuban government prevent the US government from monitoring those returned to ensure they are not retaliated against. In light of these odds, a new route has emerged as the “preferred” route to the United States.[23] 

Cubans attempting to flee now enlist the help of friends or relatives in the United States (usually Miami). These relatives now hire a “service”. These services, utilize high-speed boats, night vision technology, GPS navigation, and a well-organized network of agents[24]. An agent would deliver a message, in person giving explicit details of the time date and location back to the would-be emigrant. The message usually tells the emigrants to wade out into the ocean into chest deep water, usually about a mile off the coast given Cuba’s shallow beaches, at a pre-assigned location somewhere off the west coast of Cuba. A speedboat with no lights speeds in under the cover of darkness, picks up the emigrant, and brings them back to Mexico, usually off the Yucatan coast. Isla Mujeres, near Cancun is a common destination. From there, the emigrant is given a change of clothes, given a few tips on how to look inconspicuous to Mexican authorities, and given a ticket north to Reynosa. From Reynosa, the emigrating Cubans simply walk across the border to the United States and upon arrival invoke the Cuban Refugee Adjustment Act. The penalty for Cubans found to be illegally in Mexico is a menial fine, and they are given 30 days to leave the country.

While this new route seems safer than taking to sea on a raft and hoping that the currents will take you to the Florida Keys, in fact it has many more perils. Usually the “service” that is hired to smuggle the fleeing Cubans has ties to organized crime. Very often, they are the same organizations who are involved in drug smuggling[25]. There are instances where the same would-be rescuers instead hold the emigrant for ransom (usually for twice the going rate of $10,000 United States Dollars).[26] Sometimes, those who are unable to pay are allowed to “work off” the ransom by carrying a shipment of drugs through the desert across the border[27]. Others who may have knowledge of the local waters in Cuba are instead forced to drive the boat for the next pickup[28].

Another common peril is the fact that the Mexican authorities imposes substantial penalties for smugglers. While the smugglers usually prefer to bribe the Navy, if pursued the boat drivers sometimes resort to cast their passengers into the sea in an attempt to escape the smuggling charges or avoid having to pay the bribes.



Since the early colonial years, the history for Cuba and the history of the United States have been deeply intertwined. During Cuba’s struggle for independence from Spain, the United States, on several occasions took on the role of protector and savior. During times of turmoil, the United States, with its military and financial might, and with its political influence often came to the rescue of their fledgling neighbor to the south. In fact, it was the United States who eventually negotiated for the sovereignty of Cuba. As the government of Cuba, with its newly gained independence, dealt with power struggles, and political unrest, the United States was able to lend stability. Sadly, when the Cuban government became corrupt, the United States, not only stood idly by, but also participated in the corruption. By the time the United States realized that the Cuban government had become a monster it could no longer control, the Cuban people had become discontent with the United States. This combination of corruption, greed, and string of blunders paved the way for the Castro Revolution.


  1. A.     Pre- Castro history of Cuba

Since the late 15th century when Christopher Columbus discovered Cuba, until the mid-19th century when Cuba proclaimed its independence, the Island survived numerous occupations, wars, and skirmishes at the hands of multiple European nations[29]. Despite their proclamation of independence, Cuba remained occupied by Spain until the end of the 19th century[30]. In 1898, As a result of the Treaty of Peace in Paris, which marked the end of the Spanish American war, Spain relinquished sovereignty over Cuba to the United States[31]. In 1901, with the passage of the act that became known as the Platt Amendment[32], the United States set out the conditions for withdrawal of troops from Cuba. 

After a failed attempt at home rule in 1902, which led to the reoccupation by United States troops, in 1909, Cuba once again, returned to home rule[33]. In 1912, again United States forces had to intervene in Cuba to help quell violent protests by blacks, descendent from slaves imported to work the Cuban plantations[34]. President Machado, although he established economic, industrial, and agricultural reform, still establishes a brutally oppressive dictatorship .

Through the 1920’s, in light of the oppression, a strong communist influence began to grow in Cuba with the lure of social reform. In 1933 President Gerardo Machado was forced to leave Cuba under pressure from the Communist party and a provisional government was implemented[35]. Less than a month later, in a revolt that became known as the “Sergeants’ Revolt”, led by Fulgencio Batista, the provisional government was toppled[36]. Batista had been the Union representative for the Cuban military so he used his influence to gain control of the Military. Although Batista himself did not take power, he remained in control of the military as other short-lived presidencies came and went. It is suspected that Batista was the force behind several puppet presidents until he himself was elected president in 1940[37].

During his presidency, Batista, although a Capitalist, had the support of the Communist Party of Cuba[38]. Batista implemented social reform and enacted pro-union legislation. Batista’s first presidency lasted until 1944[39].

After his presidency, Batista moved to the United States where he remained until in 1952 he again made a run for the presidency. Shortly before the election, Batista, with the support of the military staged a coup against elected Cuban president  Carlos Prío Socorras [40]. Batista seized power and cancelled the election. This second presidency was very different from his first. Instead of the previous Social reform, Batista sought to increase his personal fortune. Having returned to power by force, and no longer needing the political support of the Communist party, Batista became extremely anti-communist. Batista established ties with organized crime[41] in the United States who were allowed to run casinos, drug smuggling, and prostitution rings in Cuba. Batista also had ties to legitimate United States business interests and to the United States government[42]. He allowed United States companies to operate profitably in Cuba often at the expense of the Cuban people and received weapon subsidies from the United States government.

  1. B.      The Castro era leading up to the inception of the Cuban Refugee Adjustment Act

In 1959, a young attorney Fidel Castro and his brother Raul came into power through a “revolution” in opposition to Batista’s brutal regime[43]. When it became evident that Castro’s revolution had gained the support of the Cuban people, Batista was forced to flee into exile[44]. Castro’s regime has been in place since. It has been equally brutal and equally oppressive of its people. At first Castro denied being a communist and proclaimed Cuba a democracy[45]. Castro sought support both from the United States and the Soviet Union. As he began to forge a relationship with Soviet Premier Nikita Khrushchev, the United States began to become concerned.

  1. 1.      Castro’s rise to power

In 1960, the new Castro government signed an agreement to buy oil from the Soviet Union. Another alarming act by the Castro administration was the Agrarian Reform Act which forbade ownership of more than 933 acres by anyone and nationalized large sugar plantations and cattle ranches[46]. In retaliation, the United States government ordered United States owned refineries in Cuba to stop processing and the United States itself refused to sell oil to Cuba. Further the United States began a boycott of Cuban sugar. In response Castro seized and nationalized the Texaco, Esso, and Shell Oil refineries. In all, the Cuban government nationalized over $850 million of United States owned properties and businesses[47]. Outraged by the move and insolence of the Cuban Government , the United States withdrew their ambassador to Cuba in October of 1960 [48].

  1. 2.      Bay of Pigs Invasion

By the time the United States had reached the point where they severed their diplomatic ties, the United States government began to look for ways to remove Castro form power. In 1961 United States backed Cuban exiles launched an invasion known as the battle of Playa Giron[49]. This ill-fated invasion is more commonly known in the English-speaking world as the Bay of Pigs Invasion. After only three days of fighting the invasion was defeated. The effect was that the Castro government grew immensely in popularity amongst the Cuban population, and the United States government was deeply embarrassed.

  1. 3.      Operation Mongoose

After the failed Bay of Pigs invasion, the United States sought to destabilize the Castro government in other ways. Operation Mongoose was deployed late in 1961 which consisted of terrorist activities, intelligence gathering, propaganda and psychological warfare aimed at the people of Cuba[50]. The goal was to motivate the people of Cuba into revolt against the Castro government. The program was supposedly suspended due to the Cuban missile crisis, but is suspected to have continued into the 1970’s.

  1. 4.      Cuban Missile Crisis

In 1962, the Soviet Union sought to install nuclear missiles in Cuba. United States reconnaissance showed that Cuba had begun construction of bases to house the Soviet missiles and demanded that construction be halted, the bases dismantled and the weapons removed from Cuba[51]. President Kennedy ordered an air and sea blockade of Cuba. After tense negotiations the United States and the Soviet Union reach an agreement whereby the weapons were removed from Cuba. In return the United States agreed to the removal of some of its missiles from Italy and Turkey. More importantly, the United States agreed never to invade Cuba nor support any other forces that intended to invade Cuba[52].

  1. 5.      Trade Embargo and Cuban Refugee Adjustment Act

         In 1962, the United States strengthened its trade embargo against Cuba to a near-total economic embargo, and in 1966, the United States passed the Cuban Refugee Adjustment Act[53].


  1. C.     The Cuban Refugee Adjustment Act

The concept of asylum dates back as far as the Greek and Roman empires. Asylum has been loosely defined as refuge by a foreign sovereign to someone fleeing persecution in their homeland[54]. Conventions, treaties and laws have been passed through the years to define who qualifies and what requirements they must meet to be granted asylum[55].  Although on its face, the motivation has always been to offer refuge to individuals who are in fear of persecution, often who is granted asylum, how, and why has been a largely political question[56].

In the United States, there is no constitutionally presumed right of asylum. Any right to asylum is statutorily created. Often the motivation for passage of statutes is politically motivated. Cuban Refugee Adjustment Act is no different in that respect. On its face, the Cuban Refugee Adjustment Act was intended to help those fleeing the new Castro government. It is suspected that the True motivation behind the Cuban Refugee Adjustment Act was to do a brain drain from Cuba to destabilize their infrastructure. Arguably the Cuban Refugee Adjustment Act achieved its objective as evidenced by the strong well educated and well organized and politically influential Cuban community in the United States.

The Cuban Refugee Adjustment Act provided in relevant part 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 two years, 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[57]

A subsequent amendment to the Cuban Refugee Adjustment Act in 1976 shortened the waiting period to only one year. In 2006 the Cuban Refugee Adjustment Act was codified as 8 U.S.C. § 1255[58].

         In 1977, during the Carter Administration, relations between the United States and Cuba improved. The United States government established an Interest Section in Havana and the Cuban government established a reciprocal Interest Section in Washington D.C. During this era, the Cuban economy took a turn for the worst and discontent began to grow among the people of Cuba. In 1979 and 1980 several groups of Cubans, using vehicles, crashed the gates of the Peruvian and Venezuelan embassies in Havana seeking asylum. At one point as many as 10,000 Cubans crammed into the grounds of the Peruvian embassy seeking political asylum. 

         Ostensibly outraged, Castro, in a public address proclaimed that anyone wishing to leave could do so. Castro stated that the port of Mariel would be opened to anyone wishing to leave as long as they had someone who was willing to pick them up. What ensued was the largest exodus from Cuba in history. Nearly 125,000 Cubans left Mariel and came to the United States. The vast majority of those were admitted under the provisions of the Cuban Refugee Adjustment Act. The boatlift was finally ended by bilateral agreement.

         In the early 1990’s with the collapse of the Soviet Union, Cuba lost its primary source of subsidies. The economy in Cuba once again took a downturn and discontent began to grow amongst the population. Riots ensued and in return Castro began to make threatening speeches. By this point the United States held approximately 33,000 Cubans, encamped at the military base in Guantanamo Bay. These were primarily people interdicted at sea while attempting to Migrate to the United States.





Fearing a repeat of the Mariel boatlift and seizing on an opportunity to purge Guantanamo Bay of the encamped Cubans, in 1995, the Clinton administration struck a deal with the Cuban Government. The new agreement substantially changed the face of the Cuban Refugee Adjustment Act.[59]

            Ostensibly, the reason for this new agreement was an attempt to make strides to improve relations between the two countries and to normalize migration into an orderly and safe manner. The primary reason for the agreement was purportedly “safety of life at sea”. The agreement had six main parts, each conveying benefits to either side.

         One key point of the agreement was that the United States agreed to deny admission to Cubans intercepted at sea. Cubans intercepted at sea would be sent to “safe haven” camps in third locations. In exchange the Cuban government pledged to do their part to discourage Cubans from setting sail by use of “persuasive methods” (Cuban law already provided a five year jail sentence for those caught attempting to leave without permission. It is hard to imagine how much more persuasive the methods would be)

            In addition, both Cuba and the United States and were to reaffirm their support of the United Nations General Assembly resolution on Alien Smuggling. They pledged to cooperate in the prevention of the illegal transport of migrants and the use of violence or “forcible divergence” to reach the United States.            The United States agreed to accept a minimum of 20,000 immigrants from Cuba in addition to those admitted under family visa provisions. Cuba and the United States also agree to cooperate on the voluntary repatriation of those Cubans who arrived at the United States or were interdicted at sea. While an agreement was not reached regarding Cuban immigrants who are inadmissible by the INA, they did agree to continue discussion of the same. Lastly, both sides agreed to meet every two years to discuss the implementation of this new agreement and engage in further talks on this topic.

         The agreement call for the United States interest section in Havana, to monitor any Cubans repatriated after being interdicted at sea to ensure that the Cuban government does not retaliate against them. Since the 1960’s when the United States withdrew their ambassador and severed diplomatic ties with Cuba, the United States has not had an embassy in Cuba. The United States Interests Section in Havana is an annex of the Swiss embassy. Established in 1977, the United States Interests Section in Havana has served a quasi-diplomatic role performing consular services and representing United States economic and political interest[60] 

  1. A.     Cuba had no intention of upholding their end of the agreement

In 2004, Cuba broke off talks that were one of the required six key points of the agreement. Cuba broke off the talks due to refusal to discuss key obstacles to the success of the program. Key among the points Cuba refused to discuss were the issuance of exit visas to Cuban’s wishing to avail themselves of the protection of the Cuban Refugee Adjustment Act, Cooperation of Cuba of the registration for another immigrant lottery[61], permission for Diplomats to travel throughout Cuba to monitor returned migrants interdicted at sea, and Cuba’s acceptance of Cuban Nationals who are excludable from the United States.

         Even before their withdrawal from talks, the Cuban government has placed obstacle after obstacle to prevent the United States from being able to realize any benefit from the agreement.


  1. B.     The United States underestimated the administrative burden

The United States interests section in Havana has, by bilateral agreement, a staff of only 51 United States employees. The 51 employees includes a detachment of 10 Marines, motor pool, IT and maintenance staff as well as the Chief of Mission and Deputy Chief of mission who spend a majority of their time in the United States on official business. Of the remaining staff 3 are assigned to process the approximately 34,000[62] refugee visa applications that the United States Interest Section received every year. Each applicant must be interviewed prior to a determination being made about their eligibility. These 51 employees share 3 vehicles because the Cuban government has prohibited the importation of personal vehicles and forbids the sale of automobiles by Cuban citizens (after all the automobiles are state property which the citizens are simply given custody over) Furthermore. United States interest section employees are not allowed to travel outside the Havana city limits[63]. Cuba has approximately the same size and population as the state of Pennsylvania. These same 3 employees are the same employees are the ones tasked with monitoring all the repatriated escapees.


  1. 1.      The Refugee application process

To qualify for a refugee visa, the applicant must demonstrate persecution or fear of persecution based on the usual 5. Applications can be downloaded or obtained from the USINT. By their own admission, Cuba in general has minimal access to the Internet. Some say Cuba has an intranet without giving access to the entire internet. Alternately applicants would have to come to the USINT. This might be feasible to those who live in the surrounding neighborhoods, on the other hand, those living in the interior would have to seek permission to travel to Havana, from the same government they are presumably in fear of. The USINT’s own website explains that the process for issuance of refugee visa could take several years… a long time to wait if you are being persecuted. Every applicant must be interviewed by the USINT  at the USINT prior to a determination of eligibility. Again, those in the interior would have to request permission to travel to Havana for the interview.

  1. United States’ reactionary policy toward Cuba.

            The United States has a long history of underestimating the cunning of the Castro administration and of missing key opportunities in relations with Cuba. After all Castro came into power not so much as a result of his military victories, but rather by winning over the support of the Cuban people.

When Castro first came into power, he recognized the importance of PR. Shortly after coming into power, Castro paid a visit to the United States where he hired a PR firm and launched a PR blitz in the United States in an attempt to gain popularity with the American people. While attempting to charm the American people, Castro was simultaneously developing a relationship with Soviet Premier Nikita Khrushchev. Some argue that the United States missed a key opportunity to “offer Cuba a better deal”.

            As Castro’s alliance with the Soviet Union grew he struggled to maintain support from the Cuban people. In a brilliant move, Castro portrayed the growing discontent of the United States with his administration as a “threat to the revolution.” Appealing to Cuban recent discontent with the United States, Castro portrayed the revolution’s struggle very david and goliath-ish. Where the United States sought to vilify Castro, Castro turned the tables and instead vilified the United States, referring to the United States as Yankee Imperialist seeking to destroy the revolution and regain control over Cuba so they could oppress the people just as they had under Batista.

            Castro had begun to lose popularity among the Cuban population when the Bay of Pigs invasion took place. The failed attempt to overthrow Castro was the catalyst he had been lacking to regain popular opinion. In an exchange between president Kennedy and Che Guevara[64] Che is reported to have thanked President Kennedy for the attack.

            It has been speculated that even the Cuban Missile crisis was a carefully orchestrated plan. Supposedly the Soviet Union placed the missiles in Cuba for the purpose of forcing the United States to negotiate the removal of United States missiles from Turkey and Italy. Out of the exchange, Cuba got the agreement from the United States that the United States would neither invade nor support the invasion of Cuba. General Curtis LeMay is reported to have told President Kennedy that the outcome of the Cuban Missile Crisis was the “greatest defeat in our history.” Regardless of the Soviet Intent or the whether the United States reaction was warranted, the fact remains that Castro got what he wanted out of the situation… the United States’ pledge not to invade Cuba. Once again the United States missed the opportunity to “drive a harder bargain”

            In 1979, when the Cuban economy took a downturn, political unrest began to grow in Cuba. Faced with a failing economy, political unrest and jails full of criminals, Supposedly out of frustration, Castro announced that anyone wishing to leave Cuba could do so. In reality what Castro did was empty his jails and mental health facilities that were a drain on the state economy and purged the Cuba of the vast majority of those discontent with the current state. It is estimated that approximately 31,000 “undesirables” were among the 125,000 people who immigrated into the United States. Cuba refused to accept any of those undesirables back and the United States was forced to “deal with them”

            In 1991 the Soviet Union finally collapsed. Since Castro’s rise to power in the 60’s, subsidies from the Soviet Union were the main source of income for the Cuban economy. The effects of the collapse of the Soviet Union were immediate and devastating. The Soviet Union purchased 80% of Cuba’s sugar production and 40% of Cuba’s Citrus crop. Without the Soviet subsidies, Cuban economy collapsed and again unrest began to resurge. Castro again, began to make speeches that sounded eerily similar to the ones he made just before the Mariel Boat lift. Castro attacked the Cuban Refugee Adjustment Act calling it “ La ley Asesina (the murderous Law) that entices Cubans to take the sea in pursuit of the empty promises of the Yankee Imperialists. The United States once again bought into Castro’s propaganda.  Fearing a repeat of the Mariel boatlift, and fearing the negative publicity that the Cuban government was producing, the Clinton administration struck a deal with Cuba that Castro had no intention to uphold. President Clinton was quoted as saying that “The Cuban government will not succeed in any attempt to dictate American immigration policy”[65] Still, Cuba continues to realize benefits from this agreement at the expense of the United States and at the expense of those Cubans who wish to flee.

           By virtue of this agreement, the Castro government no longer needs to police its potential defectors. By virtue of the agreement, the United States Coast Guard now patrols the waters between the United States and Cuba and returns any interdicted Cubans. It is no longer the Cuban government who is preventing Cubans from leaving. It is now the United States who does not want them and will return them into the hands of the Cuban authorities.


  1. D.    Questioning the need for the Cuban Refugee Adjustment Act

            The question has been raised of whether the Cuban Refugee Adjustment Act is even really necessary[66] or whether it has outlived its original intent…arguably, the Cuban Refugee Adjustment Act is really not necessary except for a few of its provisions. Under the INA, Refugee status is reserved for those who can demonstrate a well-founded fear for persecution in their country of nationality on the basis of race, religion, nationality, membership in a particular social group, or political opinion[67].

  1. 1.      Ideological Divergence

Most Cubans who today are seeking to leave Cuba do so because of the poverty and hunger, not because they are being particularly persecuted. On the other hand, the mere disapproval of the economic condition on Cuba is illegal. “El diversionismo ideológico, arma sutil que esgrimen los enemigos contra la Revolución.”( Ideological divergence is a subtle weapon wielded by the enemies of the Revolution. )[68]. La ley del Diversionismo Ideologico, the law of Ideological Deviationism is a the law against Wrong Thoughts.  Divergence or Deviation is punishable by up to 15 years in prison. Trying to leave the country without permission from the government (which is almost never granted) is usually punishable by 5 years in prison. [69]

            Arguably, the violation of such basic human rights as free thought would meet the definition of persecution. If not the fear of long prison terms, beatings, and brutal torture including electric shock “therapy” for disagreeing with the policies of the Castro government surely must.

  1. 2.      Cuba’s intelligence apparatus

When Castro first a came into power, one of the first things he did to secure his position was to establish the Comités de Defensa de la Revolución. The slogan was, and remains to this day “en cada barrio Revolución”, in every neighborhood, revolution. Of the approximately 11.2 million population of Cuba, 8.4 million are registered as members of the Comités de Defensa de la Revolución[70] . The Comités de Defensa de la Revolución has been called the eyes and ears of the revolution. Each block has a local office of the Comités de Defensa de la Revolución and the Comités de Defensa de la Revolución official has the responsibility of maintaining a file on each person on their respective block. These are civilian volunteer “Chibatos”, snitches who make it their business to know the dynamics of most households. The Comités de Defensa de la Revolución claim as their responsibility the monitoring of  the individuals’ political and moral background. The Comités de Defensa de la Revolución in turn report their findings to the G2[71].

G2 (Seguridad de Estado, the State Security Directorate of Cuba’s KGB trained secret police) corrects any “Divercionismo Ideologico”, Ideological Divergence. Cuban intelligence services have been applauded by many as being among the best. Founded and run by Raul Castro, Fidel’s brother, the Ministry of the Revolutionary Armed forces runs military intelligence operations while the subservient Ministry of the Interior is broken into the G2 and the DGI (General Intelligence Directorate). This multilayered design with multiple overlaps has served the Castro brothers well. A notable design characteristic is that the entire apparatus has always been controlled by, and subservient to the Castro brothers, primarily, now-president Raul.

  1. E.     Dusty Foot

The intent of the Cuban Refugee Adjustment Act was never to grant rights of asylum to Cubans who were not entitled to it under the INA[72]. The intent of the Cuban Refugee Adjustment Act has always been and continues to be destabilize the Castro regime by making it easier for Cuban refugees to be granted asylum into the US and therefore enticing them to leave Cuba.       

            The most recent amendment to the Cuban Refugee Adjustment Act has had many negative consequences for the US but few if any for Cuba. The purported intent of the amendment was to normalize migration from Cuba. Arguably, that intent has been defeated. Cuba’s refusal to continue talks to remove obstacles to the effectiveness of the program have been a huge contribution in that area. Another stated goal of the agreement was to prevent fleeing Cubans from embarking on a dangerous sea journey to the US. Cubans wishing to flee now face far greater danger by staying in Cuba for years while they wait for the US Interest section processes their application as refugees and during which time they have labeled themselves Gusanos by the mere application or face the gauntlet of the Dusty Foot Route.

            Many of the fleeing Cubans, preferring to take their chances outside Cuba opt for the Dusty Foot route. Aside from the obvious perils to the migrants themselves, this new “route” has many negative consequences of its own. First, the relatives of the Cubans seeking to leave Cuba in essence end up paying organized crime to smuggle their relatives and at times even pay ransoms providing a stream of revenue for those organized crime factions involved in this trade. The US has been reluctant to take any enforcement action against those US based relatives.

            Another somewhat related negative impact of the dusty foot phenomenon is that because of the revenue stream and because the smuggling operation can be so lucrative, rival criminal syndicates in Mexico are fighting over rights to the “business”.        


Bottom line is the United States policy toward Cuba has failed. It has failed because of the lack of resolve on behalf of the United States government and because the United States continues to waver in its policy toward Cuba. The Castro regime has masterfully taken advantage of these inconsistencies. They have exploited every economic advantage possible from our weak policies and put a political spin on every one of the United States decisions toward Cuba.

            The Cuban Refugee adjustment act was intended to be an integral part of US-Cuban policy rather than a disjointed act. To analyze it devoid of this context would lead to flawed conclusions. Viewed in this context, the Cuban Refugee Adjustment act is now more necessary than ever. In fact, the Cuban Refugee Adjustment Act should be strengthened. The 1995 agreement which weakened the Cuban Refugee Adjustment Act should be repealed. Originally the Cuban Refugee Adjustment Act was intended to be a temporary solution. This fact was reinforced with the ??? amendment to the act which called for an end to the Cuban Refugee Adjustment Act once a democratic government was established in Cuba.

            US Cuba relations are soon coming to a crossroad. Fidel Castro has already stepped down from power due to his age. His younger Brother Raul is also getting older. The time will soon come for him to step down as well. Fidel himself has been quoted as saying “ The Cuban model does not even work for us anymore”[73] Yet the Castro brothers have taken steps to ensure a transition of power to whomever they have chosen to succeed them. It has been suggested that the US should spend $80million to ensure that does not happen.

            It is this author’s opinion that the US should take immediate and radical action to ensure that its interests are protected. It is further this author’s opinion that from now until the transition of power happens in Cuba, the Cuban Refugee Adjustment Act should play a key role in US – Cuba policy.

            The “lukewarm” United States policy has served to perpetuate the Castro regime. There are two extreme opposite views in the US regarding the “best way” to deal with Castro.

On the one side there are those who feel that the only way to defeat the Castro regime is through strengthening of the embargo and even call for the use of force to remove Castro. In recent history, the US has taken steps, in that direction with 1990 Mack Amendment, 1992 Torricelli Cuban Democracy Act

Those on the other side argue that the best way to deal with Cuba is to lift the embargo and open Cuba up to free market economy. Proponents of this approach claim such victories as the suspension by President Clinton of Title III of the Helmes Burton Act, the establishment of the policy by the Clinton Administration which allowed Cuban Americans to send up to $1200 a year to relatives in Cuba, the subsequent amendment to that policy allowing anyone, not just Cuban Americans to send up to $1200 a year each to Cuba, the 2007 Freedom to Travel to Cuba Act and most recently the Obama administration easing of travel restrictions and raising of the amount of money that can be sent to individuals in Cuba.

Ironically, both sides can mount compelling arguments for their side, and both sides can point to other examples throughout the world where their view has been successful. Those seeking examples of the tough approach can point to recent examples in Iran and Libya. Those seeking examples of what happens when oppressed people are given access to free markets can look at Cuba’s own mentor state, the Soviet Union.

It is this author’s opinion that either strategy would work. What has kept the Castro brothers in power for 52 years is the fact that the US has vacillated between  the two extremes. Some will argue that whenever the US has been close to achieving its goal of either strangling the Cuban economy or flooding it, we have changed administrations, and the change in policy has had the effect of re-invigorating the Revolution.


The Cuban Refugee Adjustment Act is a law that should have never been. But for the greed, corruption, and blunders of the United States government Cuba would have never been an oppressive dictatorship. But for the oppressive dictatorship, the people of Cuba would have no more reason to leave Cuba than the citizens of any other country have to leave theirs. But for the fleeing Cubans, there would be no need for the Cuban Refugee Adjustment Act in the first place and especially not any of the subsequent amendments to it.

It was the greed of corrupt US politicians that allowed Batista to rise to power. It is the political ambition of politicians today that leads them to write laws and policies designed to gain popular opinions and therefore votes. It is these same weak laws and policies that still keeping the Castro regime resolutely in power.

I implore the current Congress and the Current President of the United States to take decisive action to ensure an end to the Castro regime in Cuba. Hopefully, within the next few years, the US will have an opportunity that comes along once in a generation. When nature takes its inevitable course and the Castro brothers die, the US will once again be in a position to help the people of Cuba to take back their country. The US now, needs to take steps to ensure that such an opportunity is not squandered.

Callo, y entiendo, y me quito

La pompa del rimador:

Cuelgo de un árbol marchito

Mi muceta de doctor.[74]

            -Jose Marti-

I am silent, and I understand,

and I doff my poet’s pomp;

I hang from a withered tree

my doctor’s robe.

[1] Harley D. Oberhelman, Versos Sencillos by José Martí. A Translation by Anne Fountain; José Martí, Vol. 84, No. 3, Hispania, 474,475 (2001)

Publisher(s): American Association of Teachers of Spanish and Portuguese


[3] Jose Marti; Dos Rios; Breve Cronoligia 1895, (Dec.11, 2011), https://www.damisela.com/literatura/pais/cuba/autores/marti/vida/index.htm Jose Marti at the battle of Dos Rios during the war for Cuba’s independence, frustrated at the fact that General Maceo was pinned down by the opposing Spanish Army’s ambush, Mounted his white horse, took out his revolver, turned to Maceo’s aid and shouted “Joven, a la carga” Charge, young man. The two men rode into the enemy line. The aide’s horse was wounded, but Marti made it almost 20 meters past the enemy lines before he was mortally wounded.

[4] Bing (Nov.3 2011) https://www.bing.com/search  An internet search yielded over 12,000 results.

[5] See infra Part IV(D)(2)

[6] Travel.state.gov (Nov. 1, 2011) https://travel.state.gov/travel/cis_pa_tw/cis/cis_1097.html Immigration violators are subject to prison terms ranging from four years for illegal entry or exit to as many as 30 years for aggravated cases of alien smuggling.

[7] Secretos de Cuba (Nov. 3, 2011 03:04) https://secretoscuba.cultureforum.net/t2298-g2-seguridad-del-estado-en-santa-clara This is a blog of personal accounts of torture and executions  at the hands of the G2 at their headquarters in Santa Clara. Ironically, it is located next door to a children’s recreational facility.

[8] UNHRC Global Trends, United Nations (2010)(US)

[9] After the fall of the soviet bloc, only a small number of nations have a ban on emigration. Notable among them are North Korea, 

[10] See Dowdy, Alan (1989), Closed Borders: The Contemporary Assault on Freedom of Movement, Yale University Press,

[11]See NY Times slams Andrew Zimmer (Oct 13, 2011) https://www.capitolhillcubans.com/2009/09/new-york-times-slams-zimmern.html Cubans are rarely allowed on boats much less own them, therefore fleeing Cubans often make their own “vessels” most of which are crude rafts made from inner tubes or barrels. More memorable examples are rafts made from a 1951 Chevy Pickup truck, a 1959 Buick, and a 1949 Mercury taxi.

[12] Dianne E. Rennack, US Cuba Relations: An analytic Compendium of U.S. Policies, Laws & Regulations, The Atlantic Council of the United States (2005)(US)

[13] See UNHRC supra note 8.

[14] See Joint Statement on Migration, May 2, 1995, U.S.-Cuba, 6 DEP’T ST. 397 (1995)

[15] Cite authority

[16] Id.

[17] Coyote is a term used to describe local smugglers who help people across the UNITED STATES-Mexico border. This is in contrast to the large syndicates who now run large complex operations.

[18]See infra Part III

[19] See infra Part IV


[20] See infra Part IV

[21] See infra Part V

[22] See infra Part IV

[23] The Deadly Road Through Mexico, The Miami Times (2008) (US)   

[24] Id.

[25] The Deadly Road Through Mexico, The Miami Times (2008) (US)

[26] Id.

[27] Id.

[28] Id.

[29] See Cuba Timeline, BBC (Oct. 23, 2011) https://news.bbc.co.uk/2/hi/americas/1203355.stm

[30] Id.

[31] Id.

[32] 31 Stat. 897

[33] See Cuba Timeline, note 29

[34] Id.

[35] See Cuba Timeline, note 29

[36] Id.

[37] Id.

[38] See 500 years of Cuban History (Oct 27, 2011) https://www.historyofcuba.com/

[39] Id.

[40] Id.

[41] T. J. English, Havana Nocturne: How the Mob Owned Cuba and Then Lost It to the Revolution,  (William Morrow, 2008). Batista was reputed to have ties to such infamous American Mafia figures as Meyer Lansky and Lucky Luciano. The largest gathering of the American underworld took place in the Hotel Nacional in Havana in 1946

[42] See 500 years of Cuban History, note 38

[43] Id.

[44] See 500 years of Cuban History, note 38

[45] Id.

[46] Id.

[47] Id.

[48] See 500 years of Cuban History, note 38

[49] Id.

[50] Operation Cuba (Sep 16, 2011) https://en.wikipedia.org/wiki/Cuban_Project


[51] See 500 years of Cuban History, note 38

[52] Id.

[53] Cuban Adjustment Act of 1966, Pub L 89-732, 80 Stat 1161 (codified as amended at 8 § 1255 (2006)).


[54] The 1951 Convention defines the term refugee as 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 or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence . . . is unable or, owing to such fear, is unwilling to return to it.

Convention relating to the Status of Refugees, art. 1A(2), July 28, 1951, 189 U.N.T.S. 150, reprinted in GUY S. GOODWIN-GILL & JANE MCADAM, THE REFUGEE IN INTERNATIONAL LAW 573 (3d ed. 2007).  

[55] Give a history of asylum from birth to present.

[56] Give a history of the politics behind asylum

[57] Cuban Adjustment Act of 1966, Pub L 89-732, 80 Stat 1161 (codified as amended at 8 § 1255 (2006)).

[58] Id.

[59] See Joint Statement on Migration, May 2, 1995, U.S.-Cuba, 6 DEP’T ST. 397 (1995)

[60] US Interests Section in Havana (2011) https://havana.usint.gov

[61] The United States found it necessary to hold a special immigrant lottery to be able to meet the minimum 20,000 immigrants it has pledged to accept. 

[62] US Interests Section in Havana (2011) https://havana.usint.gov

[63] See in General Report of Inspection U.S. Interests Section, Havana, Report No. ISP-I-07-27A Cuba, U.S. Dept. of St. and the Broadcasting Board of Governors, Office of the Inspector General (2007)


[65] 1994 WL 446481 (White House), 1

[66] See H.R. 5670 [2006]

[67] 8 U.S.C.A. § 1101 (West)


[68]Raul Castro

[69] Cuban communism, 1959-1995. By Irving Louis Horowitz


[71] Secretos de Cuba (Nov. 3, 2011 03:04) https://secretoscuba.cultureforum.net/t2298-g2-seguridad-del-estado-en-santa-clara. This is a blog of personal accounts of torture and executions at the hands of the G2 at their headquarters in Santa Clara. Ironically, it is located next door to a children’s recreational facility.


[72] See H.R. 15183 [1966]

[73] https://www.theatlantic.com/international/archive/2010/09/fidel-cuban-model-doesnt-even-work-for-United States-anymore/62602/

[74] This was the final stanza in Jose Marti’s poem Versos Sencillos (Simple Verses) With this final verse Marti conveys the message that he has said what he has to say and he will say no more.




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