NOTE :: Just past midnight, four Cubans walked off the beach in the dark and began to wade through warm waves out into the Florida Straits. They walked nearly a mile in waist-high water, carrying all of their possessions above their heads. They knew to stop when they heard the mile-marker bobbing in the water. Fidgeting and nervous, they waited there for hours afraid that they would be discovered by Cuban patrols or sharks. Finally, they could see the navigational lights of a fast-boat approaching. Twenty-nine other refugees were already aboard the boat and shifted to make room for them. Together, they lay huddled on the deck, praying that the vessel would go undetected by the United States Coast Guard (Coast Guard).
The successful smuggling expedition ended shortly after dawn, when the passengers walked ashore onto a Key Largo, Florida beach. The group immediately sought out an immigration official and identified themselves as Cuban nationals. After receiving a meal and undergoing inspection according to the Cuban Adjustment Act of 1966, the refugees were paroled into the United States by the end of the day. If the refugees were of any other nationality, or had in fact been interdicted at sea by the Coast Guard, they would have been repatriated immediately.
More appealing than the fabled sirens’ song, the Cuban Adjustment Act (CAA) continues to call Cubans out to sea with the promise of “no questions asked” political asylum for those who reach the United States. In 1994, the CAA was modified by the counter-intuitive “Wet Foot/Dry Foot” policy, which reserves the preferential protections of the CAA for only those “dry foot” Cubans who reach United States soil. In contrast, the Coast Guard repatriates “wet foot” Cubans discovered at sea. Because those interdicted at sea are generally no less deserving of the safeguard of the CAA than those arriving undetected on shore, the Wet Foot/Dry Foot policy is essentially a tool to circumvent the automatic award of asylum under the CAA. Worse still, the policy incites smuggling by rewarding those who are able to evade the Coast Guard and make landfall but repatriating those discovered in transit. In addition to incentivizing smuggling, the contradiction of the CAA and the Wet Foot/Dry Foot policy creates both actus reus and mens rea defenses to the crime of smuggling a Cuban national. Notwithstanding immigration issues, the CAA creates a national security loophole, whereby terrorists might enter into and remain in the United States.
This Note analyzes the CAA and the Wet Foot/Dry Foot policy and assesses whether the justifications for enactment support the continuation of the policies today. Part II describes the history of United States-Cuban relations. Part III traces the evolution of United States-Cuban migration policy, including the enactment of the CAA and the signing of the 1994 Joint Communiqué, which gave rise to the current Wet Foot/Dry Foot policy. Part IV details how these policies incentivize smuggling. Part V demonstrates how together these policies create defenses to the crime of smuggling a Cuban citizen and examines whether Congress intended for such a result in drafting the smuggling statute. Part VI recounts the historical justifications for the CAA and considers whether these justifications have any place in modern United States-Cuban policy. Finding that the historical justifications do not outweigh the smuggling and national security issues created by the CAA, Part VII advocates for the repeal of the Act. This Note concludes that the CAA is no longer utilitarian and should be repealed in favor of a more pragmatic approach wherein Cubans migrate only through proper immigration channels.
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