Border bill would eliminate obstacles preventing Cuban migrants from getting green cards

By Nora Gámez Torres and Syra Ortiz Blanes

On February 6, 2024

A bipartisan immigration bill hammered out in the U.S. Senate includes a provision that would eliminate a major hurdle faced by Cuban migrants coming through the U.S.-Mexico border, and that so far has caused thousands to remain in limbo while trying to get their green cards in the United States.

Cuban migrants may apply for permanent residence after a year of living in the United States, thanks to the 1966 Cuban Adjustment Act. But the law requires them to have been “inspected and admitted or paroled” into the U.S. in order to qualify.

For many years, Cuban migrants were released with a so-called “parole” document, but President Barack Obama ended that policy. And increasingly, border officers have been releasing Cuban migrants with other documents, which immigration judges have said are not valid to apply for a green card. The majority of those Cubans have been released into the U.S. with an I-220A form, which is technically an order to appear before Immigration and Customs Enforcement. An immigration appeals court ruled last year that Cubans released with an I-220A cannot adjust their status — meaning they cannot apply for permanent residency.

The Senate bill, unveiled Sunday after weeks of negotiation —and which may not pass either chamber — would fix the problem by including a special rule stating that the Cuban migrants released under new border processing rules do not have to meet the “inspected and admitted or paroled” requirement to get a green card under the Cuban Adjustment Act. The rule also clarifies that Cuban and Haitian migrants released at the border continue to be eligible to receive aid as refugees, including services such as Medicaid, food stamps and cash.

At the same time, the bill would make it more difficult for Cubans and other migrants to stay in the United States by tightening the asylum system and setting a shorter time frame for the adjudication of cases and deportations. The bill also gives the president authority to shut down border processing to a minimum if the number of migrants encountered exceeds 4,000 a day for a week. And decisions by immigration officials at the border could not be appealed in court except in rare cases, the bill says.

Around half a million Cubans have come to the United States since October 2021, the largest exodus in several decades, driven by the deterioration of living conditions and increased political repression on the island. Most of them have come through the U.S.-Mexico border, though another 67,000 came through a special humanitarian parole program created by the Biden administration last year.

The special rule in the Senate bill benefiting Cubans is not retroactive — meaning those already here with I-220As would not benefit. Still, some lawyers consulted by the Miami Herald interpreted the language as offering a potential solution for the thousands of pending cases of Cubans who have not been granted green cards because they were given documents other than parole when they entered the country.

“Lawyers across the country are arguing that the way that the border is handled by using these alternative documents instead of giving people parole is wrong. By taking away the requirement of admission of parole, the fact that they weren’t given a parole document is no longer a problem,” said Mark Prada, an immigration lawyer who has argued in several cases that the government cannot legally release Cubans with just an I-220A document. He told the Herald that while the rule is not “expressly retroactive,” it creates a new benefit.

But Senate staff involved in the negotiations surrounding the bill denied that the special rule would benefit those already here.

Even so, the inclusion of the special rule suggests that the Department of Homeland Security, which was actively involved in its writing, is aware of the problem caused by what many immigration lawyers view as a lack of clear policies at the border. The Herald has talked to Cubans who have received different entry documents even when they are members of the same family. Sometimes, the documents even lack the most basic data needed to continue their journey through the immigration system.

Randy McGrorty, director of Miami-based Catholic Legal Services, said that the bill showed that Washington had heard the years-long demands of South Florida immigration advocates and service providers to address the situation of Cubans with I-220A documents.

“It recognizes that Cubans fleeing Cuba are fleeing political oppression, not just economic turmoil, and that was the reason for the Cuban Adjustment Act 60 years ago. It recognizes that lots of Cubans are coming and that they do offer important skills, talents, and workers for our economy. And it recognizes that they have made a mess of the way they are releasing Cubans,” McGrorty said.

But Wilfredo Allen, a Miami-based attorney who has been practicing immigration law for over 35 years, said that the special rule raises more questions than answers. He said that the rule could be “disastrous” and would not fix the immigration limbo of the thousands of Cubans already in the United States with I-220As.

“Cubans might interpret it as an invitation to run to the border or leave by boat…. You are, to some extent, giving a privilege to a particular group, and it’s a group that is coming in historic droves,” Allen said.

Influential Cuban Americans, including Miami U.S. Rep. María Elvira Salazar, have urged Homeland Security Security Alejandro Mayorkas, himself a Cuban American, to provide a solution for the thousands of Cubans who were handed I-220A and are in limbo.

Ahead of a House Republican effort to impeach Mayorkas, a group of prominent Cuban Americans, including Miami businessman Mike Fernandez, former Miami Dade College President Eduardo Padron, and former Miami-Dade County Mayor Alex Penelas, penned an open letter against the ousting of the Homeland Security chief.

“Secretary Mayorkas desperately needs assistance from Congress in order to change the outdated immigration laws causing the crisis at the border. Instead of an adversary, Congress should treat him as an ally,” said the letter obtained by the Miami Herald.

Immigration advocates have criticized the Senate bill, arguing it weakens asylum protections and eliminates almost all judicial oversight on the process. Some Democrats seemed angry the text does not provide a path to regularization for millions of undocumented migrants already in the country, including for so-called Dreamers, immigrants who came to the country as youth and whose protection from deportation is at the heart of fierce federal litigation.

Mayorkas has pushed against criticism of the bill, highlighting in a statement that the legislation would reduce deportation times, “from years to months.” of those who could not establish a legitimate claim to stay in the United States, while at the same expediting work authorizations for those who do.

But the bipartisan proposal, which ties border security to aid to Ukraine, faces an uphill battle in Congress. Following opposition to the proposal by former President Donald Trump, House Speaker Mike Johnson said the bill would be “dead on arrival” in the House.

It is unclear whether the bill would pass the Senate, as around a dozen senators have already said they would oppose it.

This piece was republished from the Miami Herald.