U.S. and Cuban officials met in Washington this week to discuss a record number of Cubans arriving at the U.S.-Mexico border, and to determine whether Cuba is willing to start accepting Cuban deportees.
State Department spokesperson Ned Price told reporters the goal of the conversation was to promote safe and legal migration between the two countries, and to address the issue of returns and repatriation of citizens. U.S. officials released no further details.
Cuba’s foreign ministry released a statement reiterating Cuban concerns over U.S. measures that impede legal and orderly migration and insisting that the U.S. honor a commitment to issue 20,000 annual visas for Cubans to emigrate to the United States. That process was halted under the Trump administration.
Cuban officials said they emphasized there is no justification for the continued interruption of the visa service. Last month, the State Department said it would begin processing some visas for Cubans in Havana and start reducing the backlog created by a four-year hiatus.
Cuba has a history of not accepting people returned or deported from the United States, but Maria Cristina Garcia, migration analyst and professor at Cornell University, says the policy has shown a little flexibility over the years.
“You’ll recall that after the Mariel Boatlift of 1980, thousands of Cubans were detained indefinitely, across the United States, because Cuba refused to take them back. It wasn’t until the early 1990s that the Castro regime began accepting a small number of these Cuban detainees.
Garcia said that in 2005, the Supreme Court ruled 7-2 that the U.S. government had violated the law by indefinitely detaining "Mariel" Cubans who could not be deported because Cuba would not allow their return. More than 900 Mariel Cubans were released.
What is the deportation process?
During a process at an immigration court, deportation orders are usually issued after a foreign national violates the terms of their visa, is found to be undocumented or is convicted of a crime.
If the person is sentenced to prison for a crime, they may be deported after serving the sentence. If they are detained administratively for an immigration violation, they can be held for up to 180 days while federal officials try to obtain travel documents for deportation.
When the United States seeks to deport an immigrant, it generally follows a framework negotiated with the other nation; these are often detailed in writing, through a memorandum of understanding.
Countries that do not negotiate or do not follow these written agreements and refuse to accept their nationals back are deemed "recalcitrant" or "uncooperative."
Before the United States can deport someone, the other country must agree to receive the deportee. There must also be an administratively final order of removal, or deportation order, and the individual must have a travel document issued by a foreign government.
What happens when a country does not want to accept their citizens with a U.S. order of removal?
“The way the law stands now, the State Department, which handles these things at this point, is supposed to continue its efforts to negotiate with either the country in question or a third country that might be willing to take some of these people off our hands,” David Abraham, professor of law emeritus at the University of Miami School of Law, told VOA.
But if it is not possible to send someone back to their home country or a third country willing to take them, Abraham said, they sit in detention while waiting for a review of their case to determine whether they are a danger to the community. Such a review can be conducted every six months.
And if they are found not a danger to the community, they can be released with an ankle bracelet or other kind of monitoring device along with a financial bond which is usually paid by U.S. relatives.
Is Cuba on the U.S. recalcitrant countries list?
A country is placed in the “uncooperative” or recalcitrant countries list if it refuses to allow U.S. removal flights into the country, or because it denies or delays the issuance of travel documents, such as passports.
During former president Barack Obama's second term, 23 countries were categorized as "recalcitrant," or "uncooperative" with deportations. Under Trump, the number decreased to nine.
Cuba was still on that list as of 2020. VOA asked Immigration Customs Enforcement (ICE) for an updated list of recalcitrant countries under the Biden administration, and the current number of Cubans facing deportation orders. Officials did not reply before publication.
In 2020, ICE officials told VOA in an email that Bhutan, Cambodia, China, Cuba, Eritrea, Hong Kong, India, Iran, Laos, Pakistan and Vietnam were on the list of recalcitrant countries.
ICE said its assessment of a country’s cooperativeness is formally reviewed twice a year; however, it can be revisited at any time as conditions in that country or relations with that country evolve. As a result, this list is subject to change as countries become more or less cooperative.
How many Cubans are arriving at U.S. borders?
In March, U.S. Customs and Border Protection (CBP) data shows 32,396 encounters of Cuban migrants at the border. In October – the first month of fiscal year 2022 – that number was 6,067.
Cubans, who often arrive in the U.S. by illegally crossing the southern border, face a lower risk of being deported or expelled under title 42 -- a public health authority that has been used to block asylum to thousands of migrants of other nationalities due to COVID-19.
According to CBP data, there were a total of 1,529 Cuban deportees in 2020. Of that number, 238 had criminal convictions and 1,291 were non-criminal.
Can Cubans with U.S. removal orders be dropped off at Cuban ports of entry?
No. In July 2016, former ICE Deputy Director Daniel Ragsdale explained to Congress a protocol must be followed to deport a foreign national.
What happens to those with deportation orders in the U.S. but who are released from immigration detention?
David Abraham, University of Miami professor of law emeritus, said the State Department is “obligated to do its best to find somewhere to take [foreign nationals] either [to their] home country or another country that we can persuade.”
If the issuance of travel documents fails and people are released from immigration detention, Abraham said that depending on the terms of someone's bond, they might be allowed to work.
“[Or] you may find that you can only work in the shadow economy where no one is asking you for a social security number … But yes, it's a bad position to be in,” he said.