The “wet foot, dry foot” policy and the criminal Cuban Adjustment Act encouraged illegal migration from Cuba to the U.S. - resulting in loss of life. 

Migratory relations between the United States and Cuba changed abruptly after 1959, becoming distorted when Washington decided to turn its immigration policy toward the island into another instrument of war against the Cuban revolutionary process. All Cubans who emigrated to the United States, regardless of the route and their background, were granted the status of “political refugees”, under the McCarran-Walter Act of 1952, which was designed to encourage emigration from Eastern European socialist countries; thus offering similar treatment to that received by immigrants from the socialist camp, in accordance with the intention to frame the confrontation with Cuba in the context of the Cold War. From that moment on - for the U.S. government - Cubans did not emigrate like Dominicans, Mexicans, and Puerto Ricans, but “fled the regime”, an expression of the politicization of the issue.

The first thing the Eisenhower administration did was welcome with open arms the criminals and thieves of the Fulgencio Batista dictatorship, fleeing revolutionary justice. Meanwhile, special projects and programs of assistance exclusive to Cuban immigrants were elaborated, with the aim of attracting the most qualified sectors of the workforce, thus depriving the Cuban Revolution of these valuable human resources. In December 1960, the Cuban Refugee Emergency Center was created in Miami. In those early years of the sixties, the migratory issue became one of the most crucial points in relations between the two countries.

It was not until November 6, 1965, after the so-called Camarioca migration crisis, that the United States and Cuba reached their first migration agreement, signed by Cuban Foreign Minister Raúl Roa García and the Swiss Ambassador to Havana, Emil A. Stadelhofer, representing U.S. interests on the island.

This crisis was the result of the constant United States encouragement of illegal emigration from Cuba, the granting of “refugee” status to Cubans who arrived directly to U.S. soil, including kidnappers and those who had committed other crimes, while hindering the entry of Cubans from third countries, who were subject to the same regulations as other immigrants. The possibility of a safe, legal, and orderly departure for Cubans had also been diminishing since the Kennedy administration had put an end to all flights to and from Cuba during the October 1962 Crisis. This led to several violent incidents and the hijacking of vessels.

Faced with this situation, the leader of the Cuban Revolution, Fidel Castro, announced in a speech on September 28, 1965, that the port of Camarioca, in the province of Matanzas, would be set up so that Cubans who wished to leave the country for the United States could be collected on boats by relatives already residing in the U.S. who traveled to the island from that country. In this way 28,000 people left between October 10 and November 3 of that year.

The Lyndon B. Johnson administration first sought to exploit the situation through propaganda, but later, due to the difficulties that this abnormal situation created for the United States Coast Guard, proposed negotiations with the Cuban government through the Swiss Embassy in Havana. The negotiations concluded with the signing of a Memorandum of Understanding that allowed the establishment of an “air bridge” between Cuba and the United States. Two flights a day, five days a week, departed from Varadero to Miami. The United States government promised to transfer between 3,000 and 4,000 Cubans a month. The Cuban government only objected to the departure of professionals and youths between 15 and 26 years of age, who were required to complete military service, as well as the U.S. proposal to allow the release of counterrevolutionary prisoners.

A total of 268,000 people left the country on these flights up until 1973, when President Nixon suspended the agreement, claiming that Congress had challenged the high cost of the Cuban Refugee Program ($727 million dollars between 1961 and 1972). Of course, the U.S. government and Cuban counterrevolutionaries exploited these migratory movements through propaganda, referring to them as “Freedom Flights.”

On November 2, 1966, President Johnson signed the Cuban Adjustment Act, which thereafter guaranteed preferential treatment to Cuban immigrants, becoming a permanent and powerful stimulus to illegal emigration from Cuba to the United States over the following years. Among other causes, this Act was passed in the interests of the United States government, in order to reduce the costs of the Cuban Refugee Program - the largest and most costly program ever implemented in the United States - and to regularize the preferential treatment and legal status of Cuban immigrants.

This law - still in force - overruled the immigration agreement reached with the island and states that: “...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.”

The Cuban Adjustment Act continued to provide immediate access to Cuban immigrants, and was exempt from the quota restrictions established by the Immigration and Nationality Act of 1965, which applied to immigrants from other countries. Having remained in the United States for a year, Cuban immigrants could request residency without having to leave the country, as was established for all other immigrants. However, a little known fact is that many Cubans who emigrated to the United States in those years showed little interest in the Adjustment Act while the Cuban Refugee Program was in place, as this offered economic advantages that even U.S. citizens did not enjoy, such as an exemption from paying taxes. Once the Program was suspended in 1975, the accelerated naturalization of Cuban immigrants began, together with their incorporation into U.S. political life.

Beginning in 1973, a new phase of greater tensions between the two countries over the migration issue would start, coming to a head in a new migratory crisis in 1980, the last year of Democratic James Carter’s Presidential term.

From the end of 1979 until early 1980, the United States continued to implement its indiscriminate policy of stimulating illegal migration from Cuba, and receiving those who committed such acts as heroes, while increasingly denying visas to those Cubans who wished to leave the country legally.

This situation gradually intensified, creating the stage for a new migration crisis between the United States and Cuba, in the wake of several violent boat hijackings.

Faced with this situation of imminent danger to the security of Cuba and its legal and regulated migration policy, the Cuban government advised Washington on several occasions to take the necessary measures and change its policy of encouraging illegal emigration and receiving hijackers as heroes, or it would be forced to repeat the Camarioca experience. But the U.S. government continued with its actions and ignored Cuba’s warnings.

Since 1979, Cuba had also faced irregular events that took place in the embassies of Venezuela and Peru with extreme patience; when antisocial elements forced their way into these diplomatic sites seeking supposed “political asylum” and were received as heroes, while, paradoxically, Cubans were denied visas from these same countries when they requested them through normal and peaceful means.

The irrational U.S. immigration policy toward Cuba and the White House’s limited concern regarding provocations against the island from U.S. territory and acts of sabotage, as demonstrated in the lack of a response to Cuban diplomatic forewarnings, encouraged an antisocial group of Cubans who, on April 1, 1980, hijacked a bus and forcibly entered the Embassy of Peru in Havana, killing the Cuban security guard, Pedro Ortiz Cabrera, in the process.

This led to a statement by the Cuban government on April 4, which explained that the attitude adopted by both embassies, in “sheltering these violators of diplomatic immunity instead of rejecting such a practice,” presented risks to the security of diplomatic officials themselves, and encouraged acts of violence against other diplomatic missions in Cuba. At the same time, the statement resolutely warned that no individual who entered a foreign embassy by force would be granted safe-conduct to leave the country. The statement also emphasized that on no occasion had those individuals who had forcibly entered the embassies been implicated in political problems, and thus they had no claim to diplomatic asylum.

As a consequence of these events, and given the tolerance of the Peruvian government, the Cuban government decided to remove its guards from this diplomatic mission. Within a few hours, a large crowd had surrounded the site and U.S. media were quick to use the occurrence against Cuba.

An editorial published in Granma on April 21, 1980, made public the decision of the Cuban government that boats arriving from the United States to transport those who wanted to emigrate to that country would not be prevented from doing so by Cuban authorities. In this way, the port of Mariel was left open to those wishing to emigrate. Some 125,000 Cubans would leave Cuba from this site, while another 5,000 traveled to Peru and Panama by air following the incident at the Peruvian embassy.

Once this crisis was resolved, through various secret contacts, the first official talks between representatives of the two countries on the migratory issue took place in December 1980 and January 1981, but did not result in any concrete agreements, largely due to the uncertainty that existed given the Presidential election victory of Republican Ronald Reagan.

Talks resumed in 1984, and resulted in the second major migration agreement between the countries, through which the United States agreed to grant up to 20,000 visas per year, especially to immediate family members of U.S. citizens and Cuban permanent residents in the U.S. - a commitment it has not fulfilled. The agreement also established that the U.S. would return, and Cuban receive, 2,746 Cuban emigrants who had left via the port of Mariel, but had been declared ineligible to legally enter the United States. In addition, the Reagan administration pledged to facilitate the admission of counterrevolutionary former prisoners who wished to emigrate to the U.S. This agreement was invalidated between 1985 and 1987 following Cuba’s condemnation of the illegal broadcasting of Radio Martí from the United States. As a result of the U.S. acceptance of Cuba’s right to make radio broadcasts to the United States, together with the actual ineffectiveness of Radio Martí, new talks were held between the two countries in early 1988, and it was agreed to re-establish the 1984 immigration agreement and to continue the talks regarding AM radio transmissions from one country to another.

However, the “up to 20,000 visas” annually, established by the 1984 agreement, resulted in a number of interpretations on the part of the signatory parties. This meant the United States considered it had complied with the agreement by granting visas to just 11,222 Cubans between 1987 - the date when the 1984 agreement was resumed - and 1994, when the Balseros (Raft) Crisis occurred.

This, together with the disastrous effects in the Cuban economy of the collapse of the socialist camp, generated new instability in migratory relations beginning in 1991, leading to the crisis of 1994, when illegal attempts to leave increased significantly, resulting in several violent acts. The leadership of the Revolution decided to stop blocking the exit of those who wanted to leave the country - as long as no attempts were made to hijack ships and planes - and denounced the United States’ immigration policy toward Cuba. The Clinton administration, pressured by the Cuban-American mafia led by Jorge Mas Canosa, responded with more sanctions against the island: blocking remittances to Cuba, suspending flight connections and expanding TV and Radio Martí. While the economic blockade and subversion against Cuba from the United States - which increased after the fall of the socialist camp - were the main causes of the migratory crisis, the United States government responded with an intensified blockade and more subversion.

Although those attempting to reach the U.S. on rafts were intercepted by the U.S. Coast Guard, taken to the Guantánamo Naval Base, and threatened with the possibility of never being allowed to enter the United States, the exodus did not stop. Finally, the crisis itself brought the two countries back to the negotiating table, making use of secret diplomacy.

A Joint Communiqué was signed on September 9, 1994, in New York. On this occasion, the maximum of 20,000 visas to be annually granted to Cubans was changed to become the minimum amount, and the United States government committed to transferring Cuban migrants who were rescued at sea attempting to enter its territory to shelter facilities outside the U.S. In addition, the two governments pledged to cooperate to adopt timely and effective measures to prevent the illicit transportation of persons bound for the United States, and to oppose and prevent the use of violence by any person attempting to reach, or reaching the United States from Cuba, through the hijacking of aircraft and vessels. The agreement established a mechanism for biannual rounds of talks to verify compliance with the agreements, which were unilaterally suspended by President George W. Bush in January 2004 and resumed in July 2009 by President Barack Obama.

The Communiqué also noted: “The United States and the Republic of Cuba are committed to directing Cuban migration into safe, legal, and orderly channels consistent with strict implementation of the 1984 joint communiqué.” This was something that the United States government continued to violate by implementing the “wet foot, dry foot” policy and the parole program for Cuban medical professionals, established during the George W. Bush administration.

On May 2, 1995, a Joint Statement was signed in addition to the agreement signed in 1994, establishing the gradual admission, within the 20,000 visas to be granted each year, of a group of Cubans who had been intercepted at sea in 1994, and were detained at the illegal U.S. Naval Base in Guantánamo. The statement made clear that Cuban emigrants intercepted at sea by the United States, as well as those attempting to enter U.S. territory via the Guantánamo Naval Base, would be returned to Cuba. Both countries agreed that migrants returned to Cuba as a result of their attempt to emigrate illegally would not be subject to any penalty, and that those Cuban citizens at the Guantánamo Naval Base, who U.S. authorities considered ineligible to be admitted to their country, would be returned to Cuban authorities.

Although both parties reaffirmed their commitment in this statement to take measures to prevent dangerous exits from Cuba that could pose a risk of loss of life, and to oppose acts of violence associated with illegal emigration, the United States did not fulfill its commitment once it began to apply the well-known “wet foot, dry foot” distinction. This meant that those who by sea or land managed to reach U.S. territory, without being detected by the authorities of that country, automatically enjoyed the privileges offered to Cuban emigrants under the Cuban Adjustment Act. The “wet foot, dry foot” policy, rather than a legal document, was an almost immediate practice established by the United States government after the 1994 and 1995 agreements were signed.

However, on April 19, 1999, the Commissioner of the U.S. Immigration and Naturalization Service (then a bureau in the U.S. Department of Justice), Dorys Meissner, issued a Memorandum - which some consider the legal interpretation of the wet foot, dry foot policy - that confirmed the privileged eligibility for permanent residence under the Cuban Adjustment Act of Cuban immigrants who arrived in U.S. territory, despite not doing so by the established ports of entry.

The Cuban Adjustment Act continues to be a major incentive for Cuban emigration as it offers, for purely political reasons, benefits to Cuban immigrants in the United States that are not available to those from any other country. This politicization of the migration issue has continued ever since this Act was passed, remaining today as a vestige of the Cold War. However, the new migration agreement signed between Cuba and the United States on January 12, 2017, is an important step forward and, in practice, eliminates the most negative components of this law, by discouraging irregular migration, by any means, whether maritime or terrestrial; but also by discouraging irregular stays in U.S. territory, even when the individual has legally and safely left Cuba.