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Diplomacy in Action

6. Department of State Report to Congress: Compliance with U.S. -Cuba Migration Accords (October 2002


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CUBAN IMMIGRATION POLICIES

Report Submitted by the Department of State
Pursuant to Section 2245 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999
(P.L. 105-277)

Introduction:

The September 9, 1994 Joint Communiqu� commits the United States to permit the legal migration to the United States of 20,000 Cuban nationals each year (not including immediate relatives of United States citizens). During FY 1996-1998, this figure included an annual credit for 5,000 Guant�namo paroles, pursuant to the May 2, 1995 Joint Statement.

The May 2, 1995 Joint Statement provides for the return to Cuba of Cuban nationals who are interdicted at sea by the U.S. Coast Guard (USCG) while attempting to enter the United States, or who enter the U.S. Naval Base at Guant�namo Bay, and who do not have protection concerns. Under this Joint Statement, Cuba and the United States pledged to "ensure that no action is taken against those migrants returned to Cuba as a consequence of their attempt to immigrate illegally."

Together, these Migration Accords aim to promote "safe, legal, and orderly" migration as an alternative to illegal immigration.

U.S. Government efforts under the Migration Accords have curbed the Government of Cuba's pre-1995 practice of retaliating against individuals who have exited Cuba illegally. However, returned migrants, as well as other individuals who express an interest in immigrating to the United States, continue to report difficulties in pursuing their desire to leave.

Cuban Impediments to Full Implementation of the Migration Accords: Overview

In June 2002, the Department of State again highlighted the Cuban government's failure to live up to specific obligations under the Migration Accords and the subsequent separation of families. The Department expressed concern over Cuban government policies that have prevented qualified individuals from migrating legally, thereby encouraging legally qualified migrants to consider unsafe and illegal migration as a means of gaining entry into the United States.

Many of the issues outlined below have been raised repeatedly during numerous rounds of U.S.-Cuba Migration Talks, with the last talks having taken place in June 2002. However, the Cuban government has consistently failed to take effective action in response to our continuing and legitimate concerns.

  • Actions taken by the Cuban government against certain returned migrants as a consequence of their attempt to migrate are troubling, inappropriate and inconsistent with the 1995 accord. The GOC has taken a range of actions against returned migrants. For example, returned doctors have been demoted, transferred to remote locations, and told that they will never be able to pursue specialized studies or gain access to needed continuing education. Teachers have been declared "untrustworthy," fired from their jobs, and then offered work as janitors and cleaning ladies in the schools where they once taught. In addition, workers in the tourism sector have been fired and, while these dismissals are often tied to absenteeism, the workers are barred from other jobs where they could make best use of their education and experience. These forms of harassment, and any other form, undermine the Migration Accords.
  • Since November 2000, USINT officers have visited the homes of more than 1600 returned migrants. While USINT officers have found that the majority of those returnees did not suffer retribution from the Cuban authorities as a result of their attempt to depart illegally, we continue to come across clear and credible instances of harassment and punishment of returnees. U.S. monitors have also discovered geographic pockets of more general harassment of returnees. From November 2000 through May 2002, USINT reported 48 of the most serious cases to the Ministry of Foreign Relations. These requests for review and response have gone unanswered.
  • A number of Cuban citizens have been unable to depart Cuba legally because they have been denied permission to exit the country by Cuban authorities. For example, the GOC routinely denies exit permits to family members of persons it deems "defectors." In addition, the GOC's "Resolution 54," which is discussed below, presents for many medical professionals nearly insurmountable obstacles to immigration, often resulting in the separation of families. A list of 358 people was presented to the Cuban Government at the last round of Migration Talks. The list reflected the names of those the Department is aware were denied exit permission from June 2001 to May 2002.
  • The USCG currently carries out repatriations with 110-foot vessels. Larger cutters are needed when repatriating larger groups of migrants because crowding groups of 25 or more migrants onto a 110-foot cutter could result in unsafe conditions. However, despite our clear safety and security-based arguments, the GOC has not permitted the Coast Guard the use of a bigger port that would accommodate larger cutters. The GOC claims that the need for a bigger port has not been established, a claim we reject. Cuban cooperation in this regard would be helpful to the USCG and would help to prevent potentially unsafe conditions, especially in the event of a shipboard emergency. This issue was raised again at the last round of talks in June 2002, but the GOC stated that it saw no real need for an alternate port.

Cuban Impediments to Migration Accords: Exit Permission Denial

The GOC continues to deny exit permission to individuals who possess valid U.S. entry documents. These denials have affected individuals who possess travel documents from one of the U.S. Government-run immigration programs currently operating in Havana: refugee processing, immigrant visas, diversity visas, and the Special Cuban Migration Program (a.k.a., "The Lottery").

In FY 2002, the U.S. Interests Section (USINT) presented the GOC with five diplomatic notes listing 695 individuals who, between June 2001 and August 30, 2002, reported to USINT their inability to obtain exit permission. Most of the affected individuals were denied exit permits by the GOC because they were medical professionals, or other highly skilled professionals. Additionally, the GOC typically does not grant exit permits to individuals who have not completed their military service obligations. Others were denied exit permits because they were the family members of "defectors," i.e., individuals who have migrated to the United States without GOC permission. The lists presented by USINT did not include family members who were also adversely impacted by the GOC's decision to deny an exit permit to a spouse or parent. We remain concerned with GOC policies that impede legal departures, and could therefore have the effect of encouraging unsafe and illegal migration. We will continue to raise this with Cuban government until we receive a meaningful response.

Cuban Impediments to Migration Accords: Resolution 54

A policy enacted on June 28, 1999, by the GOC, known as "Ministerial Resolution 54," has created obstacles to legal migration from Cuba by medical professionals.

Resolution 54 outlines the application process medical professionals must follow to request exit permission to emigrate. This process requires that, from the date of application, professionals must work three to five years, after which their travel request will be "analyzed." Approval is not guaranteed, and will be given only if a "correct labor attitude" has been maintained. Even if all requirements have been met, permission can still be withheld.

The United States is monitoring the impact of Resolution 54, including the number of instances in which the resolution may have encouraged illegal exit attempts from Cuba. Initial reports indicate that some medical professionals have indeed chosen to depart illegally, with varying degrees of success, rather than await the outcome of the prejudicial process mandated by this resolution.

Cuban Migrants Interdicted, Interviewed, and Repatriated:

Due to budgetary constraints and smugglers' increased reliance on high-speed vessels, the U.S. Coast Guard's success rate for interdictions remains low.

In FY 2001, the U.S. Coast Guard interdicted 777 migrants. Of these, 670 were returned to Cuba; 19 were taken to Guant�namo Bay Naval Base for more extensive INS interviews, 25 were brought to the U.S. under medical emergencies and exceptional circumstances, and 63 were landed in the Bahamas because they were interdicted in Bahamian waters. In FY 2002, the U.S. Coast Guard has interdicted 666 migrants. Of these, 568 were returned to Cuba, 11 were taken to Guant�namo Bay Naval Base for more extensive INS interviews, 13 were brought to the United States, presumably for emergency medical treatment, and 68 were returned to The Bahamas because they were interdicted in Bahamian waters.

Migrants who enter Guant�namo Bay Naval Base directly undergo the same screening process as those migrants who are taken to the Guant�namo Bay Naval Base after being interdicted at sea. Those determined, through comprehensive INS interviews conducted at the Guantanamo Bay Naval Base, to have legitimate protection concerns are scheduled for third country resettlement. Those determined not to have such concerns are repatriated to Cuba. Of the Cuban migrants with protection concerns who have chosen to complete the assessment and resettlement process at the Guant�namo Bay Naval Base--both those interdicted and those who directly entered the base, 156 have traveled to third countries. An additional 3 are currently awaiting such resettlement.

Cuban Impediments to Migration Accords: Treatment of Returned Migrants

Immediately upon their return to Cuba, all repatriated migrants are met by officials from USINT and informed of the GOC's obligation not to take action against them for their attempt to migrate illegally. They are also provided with a packet containing detailed information about legal migration opportunities and a refugee program questionnaire that enables them to apply to the in-country refugee program in Havana should they believe themselves at risk at some point in the future. In FY 2001, USINT processed 3,231 individuals for U.S. refugee resettlement. In FY 2002 USINT processed 2,541 individuals for U.S. refugee resettlement.


In addition, USINT actively monitors the treatment of returned migrants. Officers from the Consular Section of USINT periodically visit returned migrants throughout Cuba. In FY 2001, 977 returned migrants were visited. In FY 2002, 642 returned migrants were visited.

USINT officers continue to discover cases of governmental harassment of repatriated Cubans. Rarely is there overt harassment in and around Havana, for example, but there are consistent complaints from Villa Clara Province, from which it appears that the highest percentage of people attempt to leave Cuba. Some people lost their jobs or were demoted for trying to leave Cuba. They were told that "jobs in the Revolution are for revolutionaries, not disloyal people who wanted to leave the country." Although this pattern continues, it appears now that the Cuban government may be singling out repatriated Cubans for fines for non-repatriation-related incidents - sometimes as much as two years' wages - or are charging them for non-repatriation-related incidents.

Cuban Impediments to Migration Accords: Panel Physician Program

USINT and the Centers for Disease Control and Prevention (CDC) continue to be concerned by weaknesses in the medical screening program for Cuban migrants, a program the Cuban Government insists on managing itself. These weaknesses are in large part the result of the GOC's unwillingness to facilitate U.S. consular officers' normal oversight function vis-�-vis the Panel Physician Program. In virtually every other country in which the United States issues immigrant visas and other immigrant travel documents, consular officers and the CDC maintain a regular and on-going dialogue with host country "panel" physicians to ensure that medical examinations for prospective immigrants to the United States are conducted in accordance with guidelines established by the U.S. Public Health Service. This is not the case in Cuba, and we remain concerned about Cuban immigrants arriving in the United States with communicable diseases of public health significance, despite medical screening by the Cuban Government.

USINT's Principal Officer and other Mission officers have met with officials of the Cuban Ministries of Foreign Relations and Public Health on several occasions during the past year to drive home the level of concern we have over the lack of consular oversight and possible substantive failings of the Cuban medical screening program. Visa officers have documented cases of incomplete or inaccurate medical examination reports and have demanded corrected versions from the applicants.

Two CDC officials visited Cuba March 11-18, 2002. Cuban Foreign Ministry officials permitted the CDC medical/laboratory evaluation team and consular officers to meet with Ministry of Public Health Immigrant Exam team leaders from the Havana region, as well as with team leaders and laboratory technicians from Cuba's central provinces. However, the Cuban Foreign Ministry did not permit CDC officials to visit examination facilities and observe medical screenings and laboratory procedures as requested (which is essential to determine the quality of the medical screening process). During a review of about 40 X-ray films presented by applicants during their immigrant visa interviews, the CDC officials found that one-fourth were of poor quality. The CDC officials also determined that fraud prevention procedures should be tightened, and that laboratory testing for syphilis, HIV, and acid-fast bacilli (TB) required further on-site evaluation. They also concluded that the number of facilities performing the examinations (16) is excessive for reasonable quality control, but also recognized that the extraordinary shortcomings of inter-provincial transportation systems may limit the feasibility of reducing the number of participating facilities to a more manageable level.

Efforts by the GOC to Implement the Migration Accords:

Under the Migration Accords, the Government of Cuba (GOC) has both the responsibility to deter illegal migration from Cuba and to refrain from retaliation against those returned directly from the Guant�namo Naval Base or migrants returned to Cuba by the USCG after interdiction at sea. Cuban government activities during FY 2002 to deter illegal migration consisted of:

  • Cuban Border Guards contacted the USCG with coordinates and descriptions of vessels departing Cuban territorial sea in the direction of the United States. Such vessels are presumed to be involved in illegal smuggling activities, including alien smuggling. While this practice resulted in a number of USCG interdictions, the USCG does not always have vessels in the area that can be used for this purpose. Consequently, Cuban cooperation in interdiction could be improved by following standard international maritime rules for stopping suspicious vessels.
  • The continued presence of the Cuban Border Guards and other Cuban security forces remains an effective deterrent ashore to illegal exit attempts.
  • High-level Cuban officials continue publicly to discourage illegal exit. Although in June 2002, Cuban President Castro intimidated that Cuba might unilaterally abrogate the Migration Accords, Cuban Border Guards established a heightened preventative presence in locations from which illegal migration attempts had been staged, and there was no surge in illegal migration. Also in June, Cuban officials at the biannual Migration Talks indicated their government's continuing commitment that only safe, legal, and orderly migration take place from Cuba to the United States.
  • Cuba continues to accept the return of migrants interdicted by the U.S. Coast Guard. Immediately upon their return to Cuba, these migrants are allowed to meet with U.S. consular officials who inform them, both orally and in writing, of legal immigration opportunities. Returned migrants are also advised that they may contact the U.S. Refugee Program in Havana, Cuba, if they are interested in applying for refugee resettlement in the United States. In FY 2001, U.S. officials repatriated 670 Cuban migrants. In FY 2002, U.S. officials repatriated 568 Cuban migrants.
  • Cuba prosecutes alien smugglers who are caught in Cuban territory. Criminal penalties under recently enacted alien smuggling laws in Cuba are substantial.
  • Cuba has complied with requests by the United States for assistance in specific U.S. criminal investigations and prosecutions related to alien smuggling.
Conclusion:

The United States remains committed to fully implementing the Migration Accords, as an effective tool to encourage safe, legal, and orderly migration.

Despite the overheated commentary of President Castro, the Cuban government takes appropriate actions to stem illegal migration from Cuba and is complying with the Migration Accords. There are still areas of concern, which the U.S. Government has raised, with the GOC. Implementation could be improved and the Migration Accords could be more effective if the GOC were willing to take the following actions:

  • Discontinue the denial of Cuban exit permits to individuals with valid U.S. travel documents, whether obtained through the in-country refugee program, immigrant visa issuance, the Diversity Visa Lottery, or the Special Cuban Migration Program (a.k.a. "The Lottery").
  • Ensure that the policy of not taking action against individuals who express an interest in emigrating to the United States, or those returned to Cuba by the U.S. Coast Guard after an irregular departure, is fully implemented by all levels of the Cuban government.
  • Permit continued technical discussions between U.S. consular and INS officials, and their Cuban counterparts, on document fraud prevention issues.
  • Insist that local authorities allow all persons who have departed irregularly to resume their former employment, if they have not committed a criminal offense in addition to leaving Cuba illegally. If another person has been hired in their absence, returning migrants should be allowed to seek and obtain comparable employment.
  • Ensure that medical screening of prospective migrants complies with guidelines established by the U.S. Public Health Services requirements.

SEC. 2245. REPORTS TO CONGRESS CONCERNING CUBAN EMIGRATION POLICIES.

Beginning not later than 6 months after the date of enactment of this Act, and every 6 months thereafter, the Secretary of State shall supplement the monthly report to Congress entitled "Update on Monitoring of Cuban Migrant Returnees" with additional information concerning the methods employed by the GOC to enforce the United States-Cuba agreement of September 1994 and the treatment by the GOC of persons who have returned to Cuba pursuant to the United States-Cuba agreement of May 1995.

Dear Mr. President:

On behalf of the Secretary of State, we are transmitting to the Congress a report concerning compliance by the Government of Cuba with the U.S.-Cuba Migration Accords of September 9, 1994, and May 2, 1995. This report is required pursuant to section 2245 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (Public Law 105-277).

The May 2, 1995, Joint Statement calls for the return to Cuba of Cuban nationals interdicted at sea by the U.S. Coast Guard while attempting to enter the United States, or who illegally enter the U.S. Naval Base at Guant�namo Bay without legitimate protection concerns. Pursuant to this joint statement, the United States and Cuba pledged to "ensure that no action is taken against those migrants returned to Cuba as a consequence of their attempt to immigrate illegally."

We hope this report is useful to you. As always, please do not hesitate to contact us if you have further questions.

Sincerely,

Paul V. Kelly
Assistant Secretary
Legislative Affairs

Enclosures:
As stated.

The Honorable
Richard B. Cheney,
President of the Senate.



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