United States: The status given to Cubans who reach the Guantanamo North American Military Base, including whether such persons are automatically given refugee or asylee status; documents provided to permit such persons to remain in the USA; rights of such persons, including the right to return, to reside for an unlimited period of time, to study, to work and to access basic social services; whether they are issued re-entry permits or refugee travel documents; whether a Cuban refugee or asylee who leaves the USA without a travel document or re-entry permit would have the right to re-enter the USA

On 2 December 1997 the US Assistant Secretary of State for Latin America and the Caribbean, John Hamilton, stated in the wake of a series of talks with Cuban government representatives that illegally entering the US Naval Base at Guantanamo in Cuba would "no longer serve as a reason, advantage, or benefit in obtaining a US entry visa" for Cubans (IPS 3 Dec. 1997). The Assistant Secretary added that Cubans who enter the Guantanamo base would not be allowed to enter the US, even if they succeeded in proving that they were entitled to asylum (ibid.). Moreover, under the terms of bilateral agreements on migration between the US and Cuba that were concluded in 1994 and 1995, the US was "obliged to return to Cuba any would-be migrants interceped at sea or at the US naval base at Guantanamo" (ibid.).

Regarding residency rights for Cubans in the United States, on 26 April 1999 the US Immigration and Naturalization Service (INS) posted the following news release on its Internet Website:

In a memorandum to all INS officers last week, Commissioner Doris Meissner clarified that Cubans – along with their spouses and children – who arrive at other than designated ports of entry into the United States are eligible for parole, as well as eventual adjustment of status to that of permanent resident, under the 1966 Cuban Adjustment Act (CAA). A designated port of entry includes airports, seaports and land ports located at the border.

The memorandum is not a change in INS policy. It is a clarification that the policy applies to Cubans arriving at other than ports of entry. There has been a question about their eligibility for parole and for permanent residence under the CAA because of the changes in the Immigration Act of 1996.

"This policy clarification, effective immediately, helps define in specific terms those Cubans who are eligible for parole and adjustment of status under the Cuban Adjustment Act, regardless of how they arrived in the United States," stated INS Commissioner Doris Meissner.

Under the CAA, a Cuban national who is paroled may, one year after the grant of parole, apply for permanent residence in the United States. The fact that a Cuban national arrived in the United States at a place other than a designated port of entry will not make him or her ineligible for permanent residence under CAA (unless the individual is ineligible on other grounds such as having a criminal record).

This action removes a significant bar to permanent residence status, if the Cubans are otherwise eligible for adjustment under the CAA. A Cuban national who is in the United States without having been admitted or paroled by INS must first surrender into INS custody, and receive a grant of parole, and wait one year before applying for permanent residence under the CAA. With the grant of parole, the Cuban national will be eligible to apply for employment authorization.

Under the Cuban Adjustment Act of 1966, no Cubans who reach United States soil (i.e. who land in the US), legally or illegally, can be deported; they can adjust their immigration status and apply for work permits immediately (AFP 14 July 1999; Palm Beach Post 26 July 1999).

On 13 December 1999 a meeting between US and Cuban government officials on migration issues failed to produce an agreement on the matter of the US policy of offering residency to Cuban refugees, which the Cuban government claims encourages illegal migration (AFP 14 Dec. 1999). US Deputy Undersecretary of State William Brownfield, who participated in the talks, stated that "the principle of granting automatic residency to Cuban immigrants is something called for in US law" (ibid.).

For information on the travel rights for refugees, including those who leave the US without having acquired a travel document or authorization to return to the US, please see USA33478.E of 30 December 1999.

For information on a special program under the terms of which some Cubans in the United States will have the opportunity until 1 April 2000 to regularize their status in the United States until 1 April 2000, please see the attached document from the INS.

Regarding the difference between asylees and refugees, a representative of the US Committee for Refugees stated on 11 February 2000 that under US law, a refugee is a person who has been granted refugee status by the US government while outside the US, and who therefore enjoys that status when he or she enters the US; an asylee, on the other hand, is a person who requested asylum while inside the US or at a port of entry. The representative stated that refugees are entitled to a social assistance package known as "refugee benefits," which includes housing assistance and English lessons. Refugees are also entitled to work permits when they enter the US. Asylees, on the other hand, are not entitled to benefits, and since 1995 asylum seekers are not allowed to obtain a work permit until their cases have been pending for six months. Once asylum is granted, however, they are entitled to apply for work permits (ibid.) (Please note however, that under the Cuban Adjustment Act, Cuban asylum seekers are eligible for parole, which gives them the right to apply for work permits immediately, as stated in the 26 April 1999 INS press release reproduced above). Both refugees and asylees are entitled to apply for permanent resident status after one year in the US. For refugees, unlike asylees, once permanent residence is granted, it is considered to be retroactive from the date of their arrival in the US, which gives them an advantage should they eventually seek US citizenship (ibid.).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum.

Agence France Press (AFP). 14 December 1999. "Cuban, US Officials Conclude Immigration Talks." (NEXIS)

_____. 14 July 1999. Michael Langan. "Cuban Exile Leader to Urge Clinton to Change Immigration Policy." (NEXIS)

Immigration and Naturalization Service of the United States (INS). 26 April 1999. "News Release: Clarification of Eligibility for Permanent Residence Under the Cuban Adjustment Act." < http://www.ins.usdoj.gov/graphics/publicaffairs/newsrels/CubaRel.htm > [Accessed 9 Feb. 2000]

Inter Press Service (IPS). 3 December 1997. Dalia Acosta. "Cuba-United States: Guantanamo to Give Up Emigrant Interception." (NEXIS)

The Palm Beach Post. 26 July 1999. Erin Coyle. "Some Immigrants Find Cool Welcome to Melting Pot." (NEXIS)

US Committee for Refugees, Washington, DC. 11 February 2000. Telephone interview with representative.

United States Immigration and Naturalization Service (INS). 10 August 1999 [Last modified]. "Immigration through the Nicaraguan Adjustment and Central American Relief Act (NACARA) of 1997." < http://www.ins.usdoj.gov/graphics/services/residency/nacara.htm > [Accessed 10 Feb. 2000]