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United States Department of State

Decontrol l ed Washington, D. C. 20520

SENSITIVE BUT UNCLASSIFIED September 29, 2020

CONGRESSIONAL REPORT MEMO FOR UNDER SECRETARY HALE (P)

(U) H Tasker Number: 003918

(U) Report Title/Topic: Cuban Compliance with the Migration Accords

(U) Due to Congress: October 19, 2020

(U) Priority:
X Routine __ Priority
_ _ One-time report _ _ Quarterly Annual X Other (Biannual)

(U) Date last submitted: April 20, 2020

(U) Legislative Provision: Section 2245 of the Foreign Affairs Reform and Restructuring Act
of 1998 (Div. G, P.L. 105-277)

(U) Delegation of authority: Under Secretary Hale is authorized to approve this report under
Delegation of Authority 280-2.

(U) BLUF: The report functions as the authoritative source for U.S.-Cuban migration statistics,
which inform Congress and interagency decision-makers. As of June 30, of the minimum
20,000 annual travel documents for legal migration to the United States from Cuba under the
Migration Accords, 2,866 were issued for this fiscal year.

(SBU) Hill/Media/Public Interest: The report does not normally attract attention; there is,
however, renewed public interest in migration from Cuba, given the reduction in consular
staffing at our embassy in Havana resulting from the drawdown of embassy staff in September
2017 after unexplained health incidents. The report could be of interest to Members of Congress
who fo llow Cuba policy, specifically Senators Rubio (R-FL), Cruz (R-TX), and Menendez (D-
NJ) and Representatives Engel (D-NY), Diaz-Bala1t (R-FL), Mooney (R-WV), and Sires (D-NJ) .
b)(5)

(b)(5)
I
(SBU) Impact: The report has no direct effect on U.S. government funding levels.

(U) Decision (Action Required):

D Approve the report for transmittal to Congress
D Disapprove/request revision

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Attachments:
Tab 1 - Report Text
Tab 2 - Legislation
Tab 3 - Purple Border Tasker
___Tab 4 - Transmittal Sheet

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Approved: WHA - Michael Kozak (acting) [MK]

Drafted: WHA/CCA, ._fb_)(S_

) _ _ _ _ _ _ _____,

Cleared: H/FO: JMoore (ok)

WHA/FO: JChung (ok)
WHA/FO: JPiechowski (ok)
WHA/FO: fb)(6) I (ok)
~b)(5); (b)(6)

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Report to Congress on
Cuban Compliance with the Migration Accords
Section 2245 of the Omnibus Appropriations Act, 1999 (P.L.105-277)

The Department of State (the Department) hereby submits the semiannual report on Cuban
migration policies required by section 2245 of the Foreign Relations Authorization Act, Fiscal
Years (FYs) 1998 and 1999 (Div. G, P.L. 105-277). As outlined in the 1984 Mariel Agreement,
the Joint Communique signed by the United States and Cuba on September 9, 1994, the Joint
Statement of May 2, 1995, and the Joint Statement of January 12, 2017 (collectively known as
the "Migration Accords"), the U.S. government is committed to the safe, legal, and orderly
migration of Cuban citizens to the United States. The 1994 Joint Communique states, "The
United States ensures that total legal migration to the United States from Cuba will be a
minimum of20,000 Cuban nationals each year, not including immediate relatives of United
States citizens." This commitment was reaffirmed in the 2017 Joint Statement.

The Department ordered the departure from Cuba of non-emergency U.S. government
employees and all of their family members on September 29, 2017, due to unexplained health
incidents. The U.S. embassy in Cuba continues to operate at reduced staffing levels. In light of
this significant drawdown in personnel, all immigrant visa and refugee operations in Havana are
suspended. The Department designated the U.S. embassy in Georgetown, Guyana, to handle
immigrant visa services for Cuban citizens and nationals, although at a much-reduced capacity.
Border closures due to the COVID-19 pandemic further prevented Cuban citizens and nationals
from reaching Guyana or other embassies to apply for travel documents. As a result, it is
anticipated fewer than 20,000 Cuban nationals will receive travel documents under the
Migration Accords in FY 2020. As of June 30, 2020, embassy Georgetown issued 2,801 travel
documents in the categories specified under the Migration Accords; additionally, 65 travel
docwnents were issued at other U.S. embassies, bringing the total of Migration Accords
documents issued thus far in FY 2020 to 2,866.

I. MIGRATION METHODS

A) The Cuban Family Reunification Parole (CFRP) Program

1n FY 2020, the U.S. Citizenship and Immigration Service (USC1S) approved and forwarded 159
petitions to the National Visa Center. Due to the drawdown in staffing at the U.S. embassy in
Havana, CFRP services in Havana were suspended on September 29, 2017.

No documents have been issued in FY 2020 under the CFRP.

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B) Safety of Life at Sea

The U.S. Coast Guard (USCG) continues to repatriate Cuban migrants interdicted at sea per the
1995 Joint Statement. Prior to June 2018, USCG and USCIS provided credible fear screenings
to all Cuban migrants interdicted by the USCG who were subject to direct repatriation to Cuba;
effective June 8, 2018, USCG and the Secretary of Homeland Security ended this policy. USCIS
continues to provide at-sea credible fear screening for any Cuban migrants interdicted by the
USCG and referred to USCIS who manifest a verbal or non-verbal fear of persecution. As of
August 18, 2020, no Cuban migrants have been referred for screening by the USCG, and, as a
result, USCIS has not conducted at-sea credible fear screenings of Cuban migrants in FY 2020.

Maritime attempts to enter the United States by Cuban nationals have significantly decreased
since the end of the "wet foot/dry foot" policy on January 12, 2017. Under the previous policy,
Cubans who were encountered in the United States ("dry foot") were normally granted parole,
whether they arrived by land or by sea. The primary method of maritime entry continues to be
makeshift vessels. In FY 2020, the USCG's estimated Cuban maritime flow is 116 migrants.
See Table 2 below for additional details and a comparison with FY 2018 and FY 2019 figures.

Table 2: USCG Interdiction ofMi,nants at Sea

Location of TOTAL TOTAL TOTAL
Enforcement Encounter FY 2018 FY2019 FY2020
Total Migrants
250 327 90
Interdicted
Known Flow· of Cuban 116
338 481
Mi!!rants at Sea
FY 2020 data updated as of[August 13, 2020.J
Source: U.S. Coast Guard

USCG and the Cuban Border Guard (TGF) routinely cooperate in all aspects of Cuban maritime
migration. "Active target hand-off' operations, in which the TGF pursues a vessel until it leaves
Cuba's territorial waters and then allows USCG to interdict the vessel, are common, though the
frequency of these hand-offs has decreased since the January 2017 Joint Statement went into
effect.

C} Alien Smuggling

Cuba's efforts to prevent alien smuggling include land patrols of its coastal zones and substantial
criminal penalties for offenders. Although the repeal of the wet foot/dry foot policy in the
January 2017 Joint Statement resulted in a dramatic decrease in unlawful immigration, the TGF
continues to prevent illegal departures by rafts/makeshift vessels.

• ''Known flow" includes all known events that occur in the maritime domain, to include: U.S. Government
interdictions at sea and encounters on land (with a maritime nexus), partner nation's interdictions at sea and
encounters on land (with a maritime nexus, successful evasions, deterred, presumed deceased (being reported lost at
sea), and known deceased (recovered at sea).
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D) In-Country Refugee Program

The In-Country Refugee Program, where USCIS conducts refugee interviews in Cuba, is
suspended and is not accepting new applications. No interviews have taken place this fiscal
year.

II- CUBA'S OBLIGATIONS UNDER THE MIGRATION ACCORDS

The 1994 Joint Communique reflects the agreement between the United States and Cuba "to take
measures to ensure that migration between the two countries is safe, legal, and orderly."
The United States has concerns that certain actions of the Government of Cuba may impede safe,
legal, and orderly migration, including the following:

A) Cuban Government Exit Permission Policy

Although Cuban citizens no longer require an exit permit to leave the country, the Cuban
government has been arbitrarily prohibiting certain citizens from traveling abroad without
advance notice. For example, specialized medical personnel are not permitted to travel without
individual authorization, which is obtained by only a small percentage of doctors. This policy is
entirely separate from the border closures the Cuban government enacted in response to the
COVID-19 pandemic.

B) Cuban Government Migration-Related Fees

Cuban passports are prohibitively expensive by local standards, costing $100, when the average
monthly income is approximately $25.

C) Removable Aliens

Cuba has historically demonstrated an unwillingness to accept the return of its nationals ordered
removed from the United States. U.S. Immigration and Customs Enforcement (ICE) envisioned
the 2017 Joint Statement, in which Cuba agreed, subject to certain exceptions, to accept back its
nationals found removable by the United States after January 12, 2017 ("post-January 12, 2017,"
category), would establish a mutually agreeable, repeatable process for removal. As of August
12, 2020, Cuba has denied ICE's requests to repatriate a total of 564 of the 4,578 total cases
nominated for removal in the post-January 12, 2017, category. Of the total, 590 requests are still
pending a decision, while 20 of the aliens nominated for removal have been granted asylum. In
total since January 12, 2017, ICE has removed 2,969 aliens who fall under the post
January 12, 2017, category, while 187 are pending removal and 248 appealed their cases after
being ordered removed.

Also included in the 2017 Joint Statement was Cuba's commitment to accept the return of
individuals included on a list of2,746 Cuban nationals who departed Cuba from the Port of
Mariel in 1980 but were deemed legally inadmissible to the United States, or to accept
replacement removable Cuban nationals who departed Cuba for the United States in 1980 via the
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Port of Mariel and were found by U.S. authorities to have tried to unlawfully enter or remain in
the United States in violation of U.S. immigration law (the "Mariel Cuban Substitution"). As of
August 12, 2020, only three Cuban nationals from the list were repatriated in FY 2020, and since
the enactment of the 2017 Joint Statement, 13 Cuban nationals on the original Mariel List have
been repatriated. During that same period following the enactment of the 2017 Joint Statement,
Cuba has repeatedly and without justification (beyond the COVID-related border closure in FY
2020) denied ICE's requests to repatriate 1,264 Cuban nationals in the Mariel Cuban Substitution
category- 78 percent of the 1,603 total Substitution category cases ICE has nominated -
enabling ICE to remove only 201 aliens in that category. Moreover, the Cuban government
failed to render a decision on 132 substitution requests, 115 of which have been pending more
than 60 days.

The Joint Statement also established a category for repatriation, on a case-by-case basis, of other
Cuban nationals who were found removable prior to January 12, 2017. The Cuban government's
failure to cooperate on this repatriation category, however, renders it nearly ineffective. From
April 10, 2017, to August 12, 2020, the Department, on ICE's behalf, submitted 4,998
case-by-case category repatriation nominations for the Cuban government's consideration. The
Cuban government approved only 24 - less than 1 percent - fewer removals since this
repatriation category went into effect.

As the Cuban government has refused to accept for removal the majority of ICE's case-by-case
removal nominations, ICE was forced to release 422 Cubans with final orders of removal into
U.S. communities in FY 2018, 169 in FY 2019, and 81 in FY 2020 (as of August 1, 2020).
Without the Cuban government's acceptance of their nationals, ICE will continue to release
Cuban nationals from custody per Section 241 (a)( 6) of the Immigration and Nationality Act
(INA), which states that any foreign national under orders of removal cannot be detained for
longer the 180 days if there is no significant likelihood of removal. The scope of this challenge
continues to widen with. at present, approximately 41,000 Cuban nationals with final removal
orders residing in the United States awaiting removal and an additional 73,374 in removal
proceedings.

As such, on October 22, 2019, then Acting Secretary of Homeland Security McAleenan notified
the Secretary of State that Cuba, "has continued to deny or unreasonably delay accepting the
return of Cuban citizens or nationals." As required under Section 243(d) of the INA, the
Secretary of State accordingly ordered consular officers in Cuba to discontinue granting certain
categories ofnonimmigrant visas in Cuba, effective December 30, 2019.

This first tranche of sanctions proved ineffective in compelling the Cuban government's
compliance. Since the onset of the COVID-19 pandemic, the Cuban government has declined all
ICE removal charters since February 28, 2020, and barred all commercial repatriation flights
since March 27, 2020, citing their national travel ban mandate. In addition, the Cuban
government has refused to approve any ICE-nominated cases for removal since March 20, 2020,
further amplifying ICE's existing Cuban case backlog.

Accordingly, on August 7, 2020, due to the Cuban government's unremitting recalcitrance, the
Department expanded existing visa sanctions, ordering consular officers in Cuba to discontinue
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granting all B 1, B2, and B I/B2 nonimmigrant visas for current Cuban government officials
(and their spouses and children under 21) at the Director General level and above - with limited
exceptions.

Cuba's overt non.compliance continues with no expected corrections in the foreseeable future.
The minimal cooperation ICE observed prior to the COVID·19 pandemic proved in.Sufficient to
either satisfy ICE's need to remove new cases or reduce the backlog of Cuban final order cases.

D) Monitoring and Government of Cuba Treatment of Returned Migrants

Due to the drawdown in staffing, the embassy has not conducted monitoring trips in FY 2020.