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Unraveling the Cuban Adjustment Act: Recent Changes and the Importance of Legal Counsel

By Rachel E. Carmona, Esq.

The Cuban Adjustment Act (CAA) holds significant importance in the realm of U.S. immigration law for Cuban individuals. Enacted in 1966, the CAA was a response to the Communist Revolution and upheaval in Cuba, providing a pathway for Cubans and their dependents to become lawful permanent residents in the United States. This special immigration law was designed to offer humanitarian relief to Cubans escaping to seek refuge in the USA following the rise of communism in Cuba in 1959.

Under the CAA, individuals must meet specific criteria to qualify for lawful permanent residency in the U.S. These include being a Cuban citizen, having been inspected and admitted or paroled into the United States after January 1, 1959, and maintaining physical presence in the U.S. for at least one year before applying.

Applying for lawful permanent residency under the CAA can be pursued through the U.S. Citizenship and Immigration Services (USCIS) via the adjustment of status procedures.

Policies surrounding the CAA underwent change in 2017 when President Obama terminated the "wet-foot/dry-foot" policy, which previously allowed Cubans who reached U.S. soil to stay and apply for lawful permanent residency. This policy shift meant that Cubans attempting to enter the United States could be subject to detention and potential removal/deportation.

During the Trump administration, Cubans faced significant challenges. The administration reversed longstanding policies, subjecting thousands of Cubans to the "Remain in Mexico" policy; denying naturalization and lawful permanent residence to Cubans. Additionally, Cubans became subject to the Migration Protection Protocols (MPP), leading to increased deportations and thousands of Cubans were sent back to Mexico. The MPP forced migrants to wait in dangerous conditions, impacting Cuban asylum seekers and individuals seeking refuge under the CAA.

More roadblocks to Cubans interested in permanent residency arose on September 11, 2023, when the Board of Immigration Appeals (BIA) issued its decision in Matter of Cabrera-Fernandez, further impacting CAA eligibility. The ruling established that individuals released on conditional parole under section 236(a)(2)(B) of the Immigration and Nationality Act would not be eligible for adjustment of status under the CAA. The decision stated that the petitioner was not paroled into the United States upon release from immigration detention. This decision is problematic from a legal standpoint; if it stands, it will have far-reaching implications for individuals seeking lawful permanent residency under the CAA.

Immigration attorneys across the U.S. are mounting challenges to the Cabrera-Fernandez case; the main argument is that the petitioner was granted humanitarian parole by operation of law, or granted "constructive parole". The legal arguments center on the disparity between conditional parole and humanitarian parole, and their implications for eligibility for adjustment of status under the CAA.

Given the complexity and evolving nature of the CAA and its associated policies, it is imperative for individuals to seek legal counsel from qualified immigration attorneys. Notably, notary publics are not attorneys and do not possess the legal expertise, credentials, or license required to provide accurate and comprehensive guidance on CAA-related matters. Simply put - they are unqualified to ever provide legal advise, and that is much more pronounced when assessing complex legal issues such as the ever-changing policies that surround the CAA. Immigration attorneys are equipped to navigate the nuances of recent policy changes and legal rulings, ensuring that individuals receive informed and reliable advice regarding their eligibility and options under the CAA.

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