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Cuban Adjustment Act

Cuban Adjustment Act

General . The Cuban Adjustment Act (Public Law 89-732) (CAA) became law on November 2, 1966. Section 1 of the Act was designed to permit thousands of Cuban refugees to adjust to lawful permanent residence. Most of these Cubans were parolees or non-immigrants who could not return to Cuba for political reasons, but could not seek residence through other means. Similar laws have been passed over the years for other nationalities as well, e.g., Public Law 101-167 (for former nationals of the Soviet Union, Laotians, Cambodians, and Vietnamese).

(Public Law 89-732,

November 2, 1966, as Amended)

That, notwithstanding the provisions of section 245(c) of the Immigration and Nationality Act 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 one year, 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. Upon approval of such an application for adjustment of status, the Attorney General shall create a record of the alien's admission for permanent residence as of a date thirty months prior to the filing of such an application or the date of his last arrival into the United States, whichever date is later. The provisions of this Act shall be applicable to the spouse and child of any alien described in this subsection, regardless of their citizenship and place of birth, who are residing with such alien in the United States.

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Cuban Refugee Adjustment Act (cont.) SEC. 2. In the case of any alien described in section 1 of this Act who, prior to

the effective date thereof, has been lawfully admitted into the United States for permanent residence, the Attorney General shall, upon application, record his admission for permanent residence as of the date the alien originally arrived in the United States as a non-immigrant or as a parolee, or a date thirty months prior to the date of enactment of this Act, whichever date is later. [Section 3 amended § 13 of Pub. L. 89-236 (8 U.S.C. 1255(c)); omitted as executed.] SEC. 4. Except as otherwise specifically provided in this Act, the definitions contained in section 101 (a) and (b) of the Immigration and Nationality Act shall apply in the administration of this Act. Nothing contained in this Act shall be held to repeal, amend, alter, modify, affect, or restrict the powers, duties, functions, or authority of the Attorney General in the administration and enforcement of the Immigration and Nationality Act or any other law relating to immigration nationality, or naturalization. SEC. 5. The approval of an application for adjustment of status to that of lawful permanent resident of the United States pursuant to the provisions of section 1 or this Act shall not require the Secretary of State to reduce the number of visas authorized to be issued in any class in any alien who is physically present in the United States on or before the effective date of the Immigration and Nationality Act Amendments of 1976.

Eligibility: Three Basic Criteria

Be a native or citizen of Cuba.

An applicant meets

this requirement through any one of several different means.

Citizens of Cuba

A person who was born in Cuba, and is still a citizen of Cuba; A person who was born on the U.S. Navy Base at Guantanamo

Bay, Cuba. Whether this person is or ever was considered to be a citizen of Cuba by the Cuban government, and regardless of any claims to other nationalities he or she might have through his or her parents, he or she is a native of Cuba simply by being born there. (e.g., pregnant women who arrive at the Base. The babies born of those women at Guantanamo Bay meet this requirement—Haitians in the 1990’s)

A person who was born outside of Cuba but has become a

naturalized citizen of Cuba. For those who have never resided in Cuba, the most persuasive

evidence of Cuban citizenship is a valid Cuban passport.

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Other Evidence of Citizenship

If a Cuban passport is unavailable, another official Cuban document, such as a Cuban Civil Registry document, a Cuban consular certificate of citizenship, or other document signed by a Cuban official with appropriate authority over the registration of citizens indicating that a named individual is a citizen, should be sufficient to establish citizenship. Matter of Buschini (June 30, 2006), USCIS Administrative Appeals Office Adopted Decision.

A Cuban consular certificate indicating that a person was born abroad to parents, at least one of whom was a Cuban citizen at the time of the person’s birth, establishes that the person, himself or herself, was also a Cuban citizen at birth. In the absence of evidence that the person thereafter lost Cuban citizenship, the consular certificate will be sufficient to establish that the person is a Cuban citizen for the purposes of adjustment of status under the 1966 Act. Matter of Vazquez (AAO, July 31, 2007)

Nationals of Cuba

A person who was born in Cuba, but later became a citizen of some other country or became stateless

Admission or Parole

2) Have been inspected and admitted or paroled into the U.S. after January 1, 1959. Any inspection and admission or parole, regardless of the classification of admission or purpose of parole, meets this requirement. See generally Matter of Alvarez-Riera , 12 I. & N. Dec. 112 (BIA 1967) ; Matter of Rodrigue z, 12 I. & N. Dec. 549 (R.C. 1967) ; Matter of Martinez-Monteagudo , 12 I. & N. Dec. 688 (R.C. 1968) .

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Inspection and Admission

ANY lawful admission creates eligibility for CAA, including all immigrant and non-immigrant admissions such as Fiancee Visa, visa waiver, student visa, border-crossing checkpoint

212(d)(5) Parole

Regargless of the annotation on the I-94, any parole pursuant to 212(d)(5) creates eligibility

Common annotations include: “pending 240 hearing”, “DT” (Buffalo entries), “public interest”, “humanitarian” “pending removal hearing”, “humanitarian”, “pending asylum”, “public interest”

However, “conditional parole” under 236 does not create eligibility for CCA (nor 245 adjustment) Matter of Luis CASTILLO-PADILLA, 25 I&N Dec. 257 (BIA 2010) Interim Decision #3683 Decided June 18, 2010

Cuban Parole Program

CIS District Offices will parole (or renew parole) for Cubans without a final order, who are prima facie eligible for adjustment, and were not inspected and admitted.

Renaud Memo, 3/4/2008

As of February, 2010, paroles will be issued for two-year increments. Bulger Memo, 2/3/2010

Parole requirements:

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Physical Presence

(3) Have at least one year of aggregate physical presence in the U.S. before applying for benefits under section 1 of the CAA (amended from two years by the Refugee Act of 1980).

Physical presence commences from the time of the parole (or admission)—not from the date of actual presence in the U.S. (where different)

Temporary Departure

However, if an applicant was admitted or paroled and later departed from the U.S. temporarily with no intention of abandoning his or her residence, and was readmitted or re-paroled upon return, the temporary absence shall be disregarded for purposes of the applicant's "last arrival" into the U.S. See 8 CFR 245.2(a)(4)(iii) and Matter of Riva , 12 I. & N. Dec. 56 (R.C. 1967) .

Factors to consider in determining whether the applicant did in

fact have an un-abandoned residence in the U.S. are: the duration of the trip abroad; the purpose of the trip; how long the applicant was in the U.S. before departure; and the applicant's family or employment ties in the U.S. Bear in mind, of course, that a subsequent re-entry on a non-immigrant visa to an "unabandoned residence" may have been accomplished by fraud.

Discretion

An application for adjustment under the CAA may be denied as a matter of discretion if there are sufficient negative factors to overcome the positive ones. However, in weighing the discretionary factors, keep in mind the nature of the CAA and the political situation in that country (see Matter of Mesa , 12 I. & N. Dec. 432 (Dep. Asst. Comm’r, 1967)

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Bars to Adjustment

The bars to adjustment enumerated in section 245(c) of the Act are inapplicable. Thus, the following aliens may seek adjustment under the CAA:

Inapplicapble 245c Bars:

Crewmen (see Matter of Sanabria , 12 I. & N. Dec. 396 (R.C. 1967)

Transit without visa passengers; Non-immigrant overstays; Aliens who have worked without

authorization; and Aliens who were admitted as non-

immigrant visitors without visas under section 217 of the Act (the Visa Waiver Permanent Program, formerly known as the Visa Waiver Pilot Program).

J visa Fiancee Visa

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Grounds of Inadmissibility

212 grounds of Inadmissibility apply through reference in the authorizing statute:

“…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.”

Inapplicable Grounds of Inadmissibility:

The inadmissibility grounds of section 212 of the Act apply, with the exception of section 212(a)(4) of the Act (see Matter of Mesa , 12 I. & N. Dec. 432 (Dep. Assoc. Comm’r, 1967) : Public Charge (no affidavit of support required)

sections 212(a)(5) , and 212(a)(7) of the Act. Furthermore, on April 19, 1999, INS issued a memorandum to all offices

stating that “[t]he policy of the Service is that the inadmissibility ground that is based on an alien's having arrived at a place other than a port of entry does not apply to CAA applicants. All Service officers adjudicating CAA applications will do so in accordance with this policy. So long as the applicant meets all other CAA eligibility requirements, it is contrary to this policy to find the alien ineligible for CAA adjustment on the basis of the alien's having arrived in the U.S. at a place other than a designated port of entry.”

Problematic Grounds Of Inadmissibilty

Fraud—review for material fact and for timely recantation

Watch for terrorist and persecutor bars

Criminal Records—especially crimes committed in Cuba

Communist Party Membership: identified, problematic groups include,

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Crimes

When an applicant reveals that he or she has a criminal conviction in Cuba, a sworn statement will be taken, and must address these matters: (1) the date and place of the arrest; (2) the specific charges lodged against him or her; (3) the date and place of any judicial proceedings; (4) the outcome of these proceedings; and (5) if the applicant was imprisoned, the place and length of incarceration. (review for possible political motivation)

It is important to remember that a finding of inadmissibility need not be supported by a record of conviction if there is reason to believe -by the alien's own admission- that there has been a conviction and that the underlying crime involved moral turpitude under prevailing U.S. standards. See Matter of B- , 3 I. & N. Dec. 1 (BIA 1947) ; Matter of McNaughton , 16 I. & N. Dec. 569 (BIA 1978) ; and Matter of Doural , 18 I. & N. Dec. 37 (BIA 1981) .

212(a)3(D) (D) Immigrant membership in totalitarian party.-

(i) In general.-Any immigrant who is or has been a member of or affiliated with the Communist or any

other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible.

(ii) Exception for involuntary membership.-Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that the membership or affiliation is or was involuntary, or is or was solely when under 16 years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and whether necessary for such purposes.

(iii) Exception for past membership.-Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that-

(I) the membership or affiliation terminated at least-

(aa) 2 years before the date of such application, or

(bb) 5 years before the date of such application, in the case of an alien whose membership or affiliation was with the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date, and

(II) the alien is not a threat to the security of the United States.

(iv) Exception for close family members.-The Attorney General may, in the Attorney General's discretion, waive the application of clause (i) in the case of an immigrant who is the parent, spouse, son, daughter, brother, or sister of a citizen of the United States or a spouse, son, or daughter of an alien lawfully admitted for permanent residence for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest if the immigrant is not a threat to the security of the United States.

Communist Party Membership When an applicant indicates the existence of possible

ineligibility under 212(a)(3)(D)(i) of the INA, as a member of the Communist party, a detailed sworn statement will be taken. The areas which should be covered include: (1) the organization joined; (2) the date and place of joining; (3) an explanation of why the applicant joined; (4) the nature of the organization; (5) the duties and responsibilities of the applicant within the organization; (6) whether the applicant held an official title or office or was simply a member; and (7) if the applicant has terminated his or her membership, when, and in what manner, this termination took place. Keep in mind that section 212(a)(3)(D)(ii) of the Act provides an exception.

This could be an issue at Naturalization

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Problematic Groups

Waivers

An applicant under the CAA who is inadmissible to the U.S. must seek a waiver under section 212(g), (h), or (i) of the Act.

The waiver application is made on Form I-601, not on Form I-602. The I-602 may only be filed by an applicant who is a refugee or asylee who was admitted under section 207 or section 208 of the Act.

The only exception is an alien who was paroled into the U.S. as a refugee before April 1, 1980.

Under the reasoning of Matter of Mesa, the adjudicator should consider the political situation in Cuba.

Should address the added hardship of separation caused by the embargo.

California Service Center has been very ungenerous in granting waivers and in exercising discretion.

Denial of waiver may be appealed to the AAO (but not the underlying adjustment)

Dependents

Dependants of Cubans who did not adjust through the Cuban Adjustment Act may also be eligible for CAA

Dependants of Cubans who have already naturalized are not eligible for CAA. The naturalized Cuban is no longer an “alien.”

Step children are eligible so long as they meet the INA definition. However, a marriage fraud analysis of the marriage

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Parole of Dependants

Not available under the reasoning that the Meissner Memo specifically references “Cubans.” CIS has limited parole solely to Cuban citizens (there may even be reluctance to grant to Cuban nationals with dual citizenship).

Denial

A denial of an application under the CAA by CIS is final and un-appealable unless certified to the Office of Administrative Appeals (AAO), when the applicant is in a lawful status or when deportation proceedings should not be instituted because of humanitarian factors or if CIS determines the case presents a novel legal issues

Attendant waivers are appealable to the AAO

Recission

As with any other lawful permanent resident, an alien adjusted under section 1 of the CAA may have his or her residence rescinded under section 246 of the Act if it is determined within five years of adjustment that he or she was ineligible.

Moreover, the five-year period of statutory limitations begins to run from the actual date the application for adjustment was approved, and not from the retroactive date of permanent residence (the rollback date). Matter of Carrillo-Gutierrez , 16 I. & N. Dec. 429 (BIA 1977) .

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SEC. 606. CONDITIONAL REPEAL OF CUBAN ADJUSTMENT ACT. (a) In General.--Public Law 89-732 is repealed effective only upon a determination by the President under section 203(c)(3) of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 (Public Law 104-114) that a democratically elected government in Cuba is in power. (b) Limitation.--Subsection (a) shall not apply to aliens for whom an application for adjustment of status is pending on such effective date.

Sunset Provision

Determinations SEC. 206. REQUIREMENTS FOR DETERMINING A

DEMOCRATICALLYELECTED GOVERNMENT. For purposes of this Act, a democratically elected government in Cuba, in

addition to meeting the requirements of section 205(a), is a government which—

(1) results from free and fair elections— (A) conducted under the supervision of internationally recognized observers;

and (B) in which— (i) opposition parties were permitted ample time to organize and campaign

for such elections; and (ii) all candidates were permitted full access to the media; (2) is showing respect for the basic civil liberties and human rights of the citizens of Cuba; (3) is substantially moving toward a market-oriented economic system based

on the right to own and enjoy property; (4) is committed to making constitutional changes that would ensure regular

free and fair elections and the full enjoyment of basic civil liberties and human rights by the citizens of Cuba;

(5) has made demonstrable progress in establishing an independent judiciary; and

(6) has made demonstrable progress in returning to United States citizens (and entities which are 50 percent or more beneficially owned by United States citizens) property taken by the Cuban Government from such citizens and entities on or after January 1, 1959, or providing full compensation for such property in accordance with international law standards and practice.

Jurisdiction

CIS

Removal, Deportation, Exclusion

Arriving Aliens

Asylum only proceedings

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Arriving Aliens

The implementing regulations of IRAIRA introduced the term and precluded jurisdiction of the IJ over any forms of relief other than asylum

Cubans paroled into the US directly are properly classified as “arriving aliens”

Initially, the immigration judge did not have jurisdiction over CAA, nor did INS/CIS because the aliens had been placed in removal proceedings, thereby precluding CAA for Cuban paroles (other than those “paroled in place”)

The BIA allowed the IJ to take jurisdiction of CAA for arriving aliens

Orders of Supervision Naturalization Public Benefits Asylum/Withholding/Convention Against Torture Cuban Haitian Entrant Act NACARA 202 Cuban Lottery Cuban Family Reunification Program Cuban Medical Parole In-Country Refugee Processing/Asylum Diversity Lottery

Haiti Issues

Parole Renewal

TPS

Deferred Action

Asylum

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