In 1966 the United States Congress enacted the Cuban Adjustment Act (CAA). The CAA was placed into law in response to the large influx of Cuban citizens fleeing to the United States to escape Fidel Castro’s regime after he took power in 1959. By meeting specific eligibility criteria, the CAA provides a pathway for Cuban immigrants to adjust their status to that of a lawful permanent resident (green card holder). To qualify for benefits under the CAA, Cuban citizens or natives must:
1. Have been physically present in the United States for at least one year before applying.
2. Be physically present in the United States when applying for adjustment of status.
3. Be admissible to the United States. This means they should not have any disqualifying factors, such as criminal convictions.
4. Have been inspected and admitted or paroled into the United States after January 1, 1959
Up until the mid-1990s the United States had an “open door” policy for Cuban refugees. But in 1995, the wet-foot/dry-foot policy took effect wherein Cubans intercepted at sea, trying to make it to the United States, were returned to Cuba. On the other hand, Cubans who were detained at ports of entry were not subjected to expedited removal but rather they were afforded humanitarian parole under section 212(d)(5)(A) of the Immigration and Nationality Act (INA). This allowed them to later adjust status under the CAA.
At the end of his presidency, President Obama ended the wet-foot/dry-foot policy. This means that Cubans attempting to enter the United States without proper documentation will be detained and subject to removal from the United States. Although the wet-foot/dry-foot policy ended in 2017, many deportation officers have continued to release Cubans at the border while they await their court hearings. For some they are released under INA 212(d)(5)(A), “humanitarian parole” while others are released under INA 236(a)(2)(B), “Release on conditional parole.” These two groups are issued either an I-94 or Form I-220A, respectively.
Only parole under 212(d)(5)(A) allows for a Cuban citizen to adjust status under the CAA. But following the 2018, Jennings v. Rodriguez, 138 S. Ct. 830 (2018), Supreme Court decision, arguments were made that in light of Jennings even a release under
236(a)(2)(B) qualifies a person for adjustment under the CAA. This is because some argue that pursuant to Jennings, the only authority deportation officers have to release detainees is under 212(d)(5)(A) no matter if they are given an I-94 or Form I-220A.
Some people released under 236(a)(2)(B) successfully argued this point and were able to adjust status under the CAA. Unfortunately, this argument seems to have been short lived and is no longer viable. On September 11, 2023, the Board of Immigration Appeals (BIA) settled the question in its decision of Matter of Olty CABRERA-FERNANDEZ, 28 I&N Dec. 747 (BIA 2023). In its decision the BIA held that they do not read Jennings to mean that any release of a detainee is under 212(d)(5)(A). It is possible this question will be brought up on appeal but for the time being the BIA has effectively settled the matter and any release under INA 236 (a)(2)(B) will not work to qualify a person for the CAA.
With this decision, Cubans who are detained should do all they can to try and obtain an I-94 if they are released from custody. Although the BIA’s decision seems to have taken away some Cuban citizens’ ability to adjust status in the United States, there are still other options available.
Many Cuban citizens who fled their country may qualify for asylum based on their political opinion, nationality, race, religion, or particular social group. Additionally, Cuban citizens who are outside the United States and lack documents to enter the United States may be considered for a temporary period of parole for up to two years for urgent humanitarian reasons or significant public benefit if they meet certain requirements.
If someone you know no longer qualifies for adjustment of status under the CAA, contact one of our offices for a consultation with an attorney who specializes in immigration to see what other options are available. We offer telephonic, video, and in-person consultations at our offices in Orange, Riverside, San Diego, Fresno, Sacramento, and San Francisco, California; Phoenix, Arizona; Salt Lake City and Orem, Utah; and Boise, Idaho.
ABOUT THE AUTHOR(S)
Derek Poulsen is the managing attorney of Wilner & O’Reilly, APLC San Diego Office Location. He focuses his practice 100% on Immigration Law. He graduated from Utah State University where he earned his Bachelor of Arts degree in Sociology with a Minor in Spanish. He earned his Juris Doctor degree from Creighton University School of Law. During law school, he was selected to be on Creighton’s National Trial Team and earned the Honorable Lyle E. Strom Trial Advocacy Award. His previous practice included criminal defense, where he gained valuable knowledge of the negative immigration consequences that differing criminal activity has on an individual’s ability to remain in the United States.