Elderly Cuban men play dominoes at Gomez Park, on Calle Ocho (8th Street), the heart of Little Havana. (Shutterstock)
By Monique O. Madan, Miami Herald
In a surprising court decision this week, a Miami immigration judge ruled that any immigrant released from detention by the Department of Homeland Security without a deportation order has been paroled as a matter of law.
Monday’s immigration court ruling, which is not publicly available but was obtained by the Miami Herald, could particularly impact Cubans who immigrated to the U.S. since January 2017. That’s when the 20-year-old “wet foot, dry foot” policy allowing most Cubans who reach U.S. soil to stay and become legal permanent residents was canceled.
Historically, Cubans detained by DHS after entering the U.S. at a port of entry were released and given a Form I-94, also known as a “parole card.” That parole card would then serve to apply for a green card.
But when “wet foot, dry foot” ended, those protections stopped. Instead, Cubans were detained, released and not given parole cards — stripping them of the opportunity to apply for residency. The new ruling upends that, potentially allowing thousands of Cubans to seek legal status in the country. But so far, it is not binding, meaning it can’t be enforced beyond the handful of cases directly under consideration in the decision.
Nonetheless, Judge Timothy Cole certified the case to the Board of Immigration Appeals — the highest administrative body for interpreting and applying immigration laws — for further reconsideration. If the BIA agrees with Cole, the decision could become national in scope.
“This could totally change the game for immigrants, specifically as the new administration settles in,” said Mark Prada, a Miami immigration attorney who has been spearheading the case on behalf of several immigrants in South Florida.
Cole opined that despite not receiving a physical parole card, “it is the law, not the paperwork or anything else, that controls.” He went on to explain that immigrants were technically already paroled when they were released from detention under the Immigration and Nationality Act, and that this group would be able to seek to adjust their status and obtain a green card.
It’s the first time an immigration judge has issued this opinion in writing, immigration policy experts say, noting that it has the potential to “have national impact,” Prada said.
In theory, President-elect Joe Biden’s attorney general pick, Judge Merrick Garland, a former Supreme Court judge nominee, could also certify the case himself and decide to make it binding on all immigration agencies.
Though it’s unknown how many people this ruling could affect, “the Court believes this number is high,” Cole wrote.
“Simply put, the issue this has resolved is a significant one,” he added. “If the Court is correct in the legal conclusions reached here, large numbers of similarly situated aliens will be properly seeking to adjust their status before the Court…or USCIS.”
USCIS did not immediately respond to an email from the Miami Herald seeking comment.
According to a June 2020 report published by the Migration Policy Institute, Cubans have been among the top 10 immigrant groups in the U.S. since 1970. In fiscal year 2018, there were more than 1.3 million Cubans in the country, accounting for roughly 3% of the overall immigrant population of 44.7 million.
Within the U.S., the Cuban population is highly concentrated, with 77 percent living in Florida between 2014 and 2018. The top four counties by concentration were all in Florida: Miami-Dade, Broward, Hillsborough, and Palm Beach. Together, these counties were home to about 67% of all Cuban immigrants in the United States.
It’s unclear how many Cuban nationals have immigrated to the U.S. since 2017 because the U.S. government doesn’t publish those statistics by country of origin.
“Who knows how many Cubans are floating around who would be able to get a green card,” Prada said. “I believe it could be tens of thousands, if not more.”
In October, the Herald published a report that detailed how ICE agents coerced some Cuban detainees — sometimes through physical violence — to sign a form saying they desired to return to Cuba to visit family. In a report published just days before, the Herald chronicled how ICE has continued to detain hundreds of Cubans for years despite being eligible for release, parole status, and ultimately legal resident status.
Prada says Cole’s decision could have broader implications, not just for Cubans, but for other foreign nationals including unaccompanied minors seeking asylum.