Will Cubans Now be Subject to Expedited Removal?

The United States embassy re-opened in Havana today, as the United States and Cuba move to restore diplomatic relations between the two countries. On June 30, 2015, President Obama sent a letter to President Raul Castro of Cuba, stating that “the United States of America and the Republic of Cuba have decided to re-establish diplomatic relations…” How does this re-establishment of diplomatic relations affect Cuban nationals?

The establishment of diplomatic relations is explicitly mentioned in the Immigration and Nationality Act (INA). INA Section 235(b)(1)(A)(i) allows an immigration officer to remove an arriving alien “from the United States without further hearing or review” if the officer finds the alien to be inadmissible. This provision, however, does not apply to certain aliens.

Most relevant to this discussion, the statute states that this process of expedited removal:

shall not apply to an alien who is a native or citizen of a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations and who arrives by aircraft at a port of entry.

Theoretically, Cubans arriving at the United States via air are now subject to expedited removal. It remains to be seen, however, whether immigration officers at airports will actually enforce this provision. Although the INA states that the immigration officer “shall order the alien removed,” the Board of Immigration Appeals has held that the Department of Homeland Security has discretion on whether to place an alien in removal proceeding, including in this scenario.

Please note that the exemption from expedited removal is separate and distinct from the Cuban Adjustment Act (CAA). The CAA does not mention the lack of the existence of diplomatic relations as precursor to its existence. While USCIS has directed its officers to “keep in mind the nature of the CAA and the political situation in that country” in deciding the discretionary nature of applications under the CAA, this author does not believe that the mere resumption of diplomatic ties should significantly alter that directive.

Photo by Suzanne Kreiter | Boston Globe Staff