Criminal Justice & the Rule of Law

Wet Foot/Dry Foot

Paul Rosenzweig
Friday, January 13, 2017, 3:00 PM

Yesterday, as on of his last official acts relating to immigration policy, President Obama announced the termination of the "Wet Foot/Dry Foot" policy for Cubans.

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Yesterday, as on of his last official acts relating to immigration policy, President Obama announced the termination of the "Wet Foot/Dry Foot" policy for Cubans. It's a move that Havana hailed and Cubans living in America decried. So, what exactly happened?

Let's begin with America's reaction to the Cuban revolution. Back in 1966 Congress adopted the Cuban Adjustment Act which provided a special pathway to legal residency for Cubans fleeing the Castro regime. At its simplest level, the CAA allowed Cubans who had been present in the United States for one year to apply for and secure a green card, on a path toward American citizenship.

The rub, such as it was, was getting to the United States and residing here for a year. The CAA applied in 1966 to a number of Cubans who had fled Cuba back in 1959 or 1960 and who had been living in the US since then. How would it apply to new arrivals? Initially, the US took a decision to parole everyone fleeing Cuba -- that is give them a free pass into the country -- for a year so that they then could adjust their status.

But then came the Mariel boatlift (when Castro emptied his jails) and the Cuban raft crisis (when thousands took to the ocean to try to escape an economic calamity in the early 1990s). We wanted to dissuade those types of dangerous efforts to enter America, but we did not want to turn out back on the Cubans who sought to leave their country.

Enter the wet foot/dry foot policy -- not a statute but a policy of the United States adopted in 1995. Again, in simple terms, if you were a Cuban attempting to enter the United States and you were stopped while at sea (i.e. with wet feet) you would be returned to Cuba (or to a third country), but if you were apprehended on land (i.e. with dry feet) you would be given a parole for entry into the United States and then, after a year, you could take advantage of the CAA and adjust your status to lawful resident.

And that's what changed yesterday. President Obama ended the last vestiges of Cuban parole (the dry foot component) and regularized Cuban immigration so that the application of parole is now identical to immigration from other nations. One can view it as another step toward normalization of relations with Cuba or as erecting a barrier to citizen desires to escape that country -- but whatever the characterization it just got harder for Cubans to come to America.

Notably, however, the President cannot and did not eliminate the provisions of the Cuban Adjustment Act. So we can expect that Cubans who want to leave will change their behavior to take advantage of the law that is still on the books. Today, to take advantage of that law a Cuban could probably arrive at the border and claim asylum -- a claim that would require an adjudication process which typically takes much longer than a year. After being present for a year, the CAA would apply to moot the asylum claim. And, of course, the next President can reinstate the wet foot policy with the same stroke of the pen that President Obama used to undo it.

Bottom line: Lots of important symbolism here. But the result is almost certainly going to be more Cubans arriving at the land border with Mexico to claim asylum, not less.

Paul Rosenzweig is the founder of Red Branch Consulting PLLC, a homeland security consulting company and a Senior Advisor to The Chertoff Group. Mr. Rosenzweig formerly served as Deputy Assistant Secretary for Policy in the Department of Homeland Security. He is a Professorial Lecturer in Law at George Washington University, a Senior Fellow in the Tech, Law & Security program at American University, and a Board Member of the Journal of National Security Law and Policy.

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