The United States has historically had a wet feet, dry feet policy for Cuba, that basically says that people from Cuba who arrive at and stay for a nontrivial length in the United States would be allowed to stay in the United States and qualified for expedited “legal permanent resident” status. Historically, this measure was intended to undermine the communist regime in Cuba (for more background on US-Cuba relations, see Wikipedia and the Council on Foreign Relations). The recent thawing of relations between Cuba and the United States has led people to question the wisdom of continuing with the policy. When Cuba announced that it would be more relaxed in allowing people to leave the country for travel, Alex Nowrasteh wrote that this would be good for the US. Recently, US President Barack Obama, and his Cuban counterpart, Raul Castro, announced a new chapter of cooperation in US-Cuba relations. Is the “wet feet, dry feet” policy still relevant?

Jason Dzubow, author of the Asylumist, a thoughtful blog on asylum and refugee issues, thinks it’s time to end the policy. He writes:

It seems to me that the CAA and our over-all Cuba policy exists because of our government’s decision that this was the best way to isolate the Castro regime and force democratic change on our island neighbor. More specifically, anti-Castro Cubans in Miami pushed our nation’s Cuba policy towards the all-stick, no-carrot approach that—50 years later—has accomplished nothing. Now, it seems attitudes among the Cuban American community have shifted. To be sure, many still oppose normalization, but—so far at least—we have not seen the type of angry, in-the-streets reaction that characterized the Elian Gonzales affair during the Clinton Presidency. Perhaps there is more widespread recognition that the old policy hasn’t worked, and that we need to try something new. So now that we are moving towards a new phase in our relationship with Cuba, it makes sense to end the CAA. The situation in Cuba is less dangerous than in many other countries, and so there is no longer any justification for the CAA based on humanitarian reasons (though I believe there really never was a valid justification for the law based on humanitarian reasons). The only logical reason for the CAA was as a propaganda tool against the Castro regime. I doubt this ever really worked (except maybe in the minds of some in the anti-Castro Cuban community), and—given that we are moving towards normalized relations—it certainly makes no sense at all any more. All of this is not to say that the Cuban regime respects human rights or allows political dissent. It’s clear that the government represses the political opposition, and that it detains and persecutes perceived opponents. But that type of behavior is, unfortunately, all too common in many countries, and it does not justify a blanket asylum for everyone who comes from a country with a poor human rights record. Indeed, it is exactly why we have an asylum system in the first place.

Dzubow makes a number of valid points. I don’t think the “wet feet, dry feet” policy is sufficiently important that it is worth maintaining at high political and diplomatic cost. However, I think that proactively trying to get rid of it to engineer a fairer system is misguided. I describe three reasons below:

True fairness requires open borders, not equitable miserly treatment of refugees from all countries Shortening the queue: special treatment for Cubans means less backlog for other countries The value of precedent

#1: True fairness requires open borders, not equitable miserly treatment of refugees from all countries

Co-blogger Joel Newman has written that open borders is valuable for its fairness, simplicity, and transparency. Allowing anybody to move freely gets rid of the implicit political statement involved in deciding whether to grant a particular refugee application.

As John Lee has written, the existing refugee system fails to offer even the protections it is supposed to — open borders would serve the stated goal better. And migration policy should be driven by doing what’s fair and right to all, not merely by doing what seems compassionate.

But to the extent that treating everybody decently isn’t politically feasible, we might as well offer decent treatment to whatever subset it’s feasible to. In the comments on an Open Borders Action Group post about Dzubow’s post, Max Marty wrote an excellent response, that I quote in full below:

My parents came over in 1960 from Cuba (independently, and met many years later) and were given political asylum. In a very tangible way, and direct way, I owe my very existence to this policy. I view this policy in two ways: first, it is justified in the same way that it would be justified to give this benefit to *anyone* in the world, regardless of their political, economic, or social interest. Being an open-borders advocate (with the usual caveats about actual criminals), so I’m in favor of any law that makes it easy for any subset of the world’s population to come to the U.S. and become members of the club. Thus, I think this policy shouldn’t just continue, it should be extended to everyone in every nation… Or at least every nation where there’s a chance of it happening politically. Though as a point of fact, the policy is unfair. In the same way that it would be unfair to extend basic human rights “only people with blonde hair” or “only people with a last name starting with the letter Q” or some other arbitrary (or somewhat arbitrary) criteria. Yet if the choice is either some subset of human beings get justice and human rights, or none at all, I’d choose the subset over none at all. Thus, more power to whatever justification is politically palatable to keep this gravy train running.

#2: Shortening the queue: special treatment for Cubans means less backlog for other countries

I don’t feel I have a sufficiently clear understanding of the refugee system as it works, but my impression is that there is no combined numerical quota where Cubans are competing with people of other nationalities (and of course, it’s not as if the US is actually running out of land to house the refugees). By being directly eligible for lawful permanent resident status, Cubans don’t contribute to the huge backlog of asylum applications. This is similar to a point about illegal immigration that Donald Boudreaux made here (quoted at our get in line page):

Indeed, to the extent that those who enter the USA ‘illegally’ would be eligible for legal-immigration status, their entering ‘illegally’ actually helps aspiring immigrants who are waiting in the queue. Those who enter the USA ‘illegally’ obviously aren’t waiting in the queue to get here ‘legally’; therefore, immigrants who enter ‘illegally,’ rather than join the queue, shorten the queue. Those waiting in the queue are made better off.

Indeed, Dzubow himself understands that expedited processing for some can benefit all, albeit in a slightly different context. On the matter of premium processing for asylum applicants who pay an extra fee of $1000, he writes:

Obviously, for those applicants who could pay the fee (whether $1,000.00 or some other amount), their cases would be given priority. This would benefit those applicants who pay the fee, but–if implemented correctly–it would also benefit people who do not pay the fee because the premium processing cases would be removed from the general queue, which would free up interview slots for everyone else.

#3: The value of precedent

Another way that the Cuba policy could help is by serving as a precedent for further liberalizations of migration law and de facto asylum-granting policy. The precedent could be cited for the creation of similar policies for people from other countries. I don’t know the odds of this or the timescale at which this might happen, and this is certainly the most speculative of the list of reasons.

Related reading: The US policy for Cuba has some interesting parallels elsewhere in the world. For instance, South Korea has a similar policy for people from North Korea. For more, see my post on North Korea.

You might also be interested in my co-blogger John Lee’s thoughts on reparations not being a sound basis for immigration policy.

You might also be interested in my co-blogger Michelangelo Landgrave’s survey of United States humanitarian migrant statuses.

PS: Ilya Somin comments on my share of the post in the Open Borders Action Group: “I agree with most of the points in this post. But I would add 2 things: 1. The policy should be reformed towards letting in the “wet foot” Cuban refugees as well. 2. While I agree that we should have Open Borders for refugees from all nations, not just “dry foot” Cubans, if we have to prioritize Cuba is a pretty good choice, because it is by far the most oppressive regime in the Western Hemisphere, and probably one of the 6 or 7 most oppressive governments in the entire world.”