Carlos J. Martinez
Miami-Dade Public Defender
The December 17, 2014 announcement the U.S. would be normalizing relations with Cuba has spawned much media attention. However, the furor has focused on questions like whether to lift the embargo, unfreeze Cuban assets, abolish or amend the Cuban Adjustment Act, eliminate the “wet-foot dry-foot” policy, and whether to remove Cuba from the list of sponsors of terrorism.
The subject of immigration consequences, particularly the involuntary repatriation of Cuban-born non-U.S. citizens, has received scant media coverage. Even then, the focus exclusively has been on the massive number of deportations that could take place. A reported 34,525 Cubans already have final deportation orders. The list has yet to be made public, but we can be fairly certain that the majority on that list will not be hardened, violent criminals. Only about 100 of the 34,525 are actually detained. The possible transfer to Cuba of 34,525 Cubans is without a doubt an important part of the story, but it is by no means the whole story.
No media attention has been focused on the tens of thousands of Cuban-born refugees or U.S. residents who are technically “deportable,” but do not have a deportation order. Although the exact number is unknown, Cubans convicted of misdemeanor crimes, that under immigration law could be considered crimes of moral turpitude, or aggravated felonies, such as drug possession offenses, are subject to deportation. Of course, these deportation consequences are not unique to Cuban non-citizens. However, a possible solution may exist if the U.S. mimics the agreement reached after the U.S. normalized relations with socialist Vietnam.
The Intersection of Immigration and Criminal Law
Immigration law is complex, particularly within context of a criminal case. Upon arrival to the United States, Cubans obtain parolee status through the Cuban Adjustment Act. After one year of physical presence in the U.S., the Cuban parolee becomes eligible to apply for Lawful Permanent Resident status, which then leads to his or her eligibility for citizenship. However, some criminal convictions change this process. Depending on the type of crime, a conviction could preclude the individual from adjusting his/her immigration status or from staying in the U.S. In Padilla v Kentucky, 559 U.S. 356, 130 S.Ct. 1473 (2010), the U.S. Supreme Court recognized this complexity and the need for non-citizens to receive salient advice from their criminal defense attorneys. The Court reasoned that, in certain situations, banishment from the U.S. may be worse than being sentenced to jail time. Therefore, it is crucial the criminal defense attorney be well-versed in immigration law to advise his or her client about the consequences a conviction or admission will or could have on the non-citizen’s status in the U.S.
To understand the scope of the concerns and the possible solution to the repatriation dilemma, it is helpful to take a historical approach to sensitize policy-makers regarding the special conditions to be considered when formulating a future U.S. and Cuba repatriation agreement.
The Drug Epidemic
In the 1980s and 1990s, Miami-Dade County experienced a drug epidemic. Drug arrests, particularly for possession and purchase of controlled substances and paraphernalia, were rampant. Our criminal justice system was overwhelmed, and it was not simply drug traffickers who were convicted. During a period of 15 years, an estimated 100,000 drug users, including many in the Cuban-American community, ended up with an indelible criminal record.
In response to the drug epidemic, the drug court was created in Miami-Dade in 1989. Clients with no criminal history had cases dismissed when they completed drug court; others with previous convictions did not receive a dismissal. Despite their success in drug treatment, their case dispositions are now considered “convictions” for deportation purposes. Countless others did not receive treatment through the drug court, but instead served a short period of time in the local jails and received a drug conviction or what is called a withhold of adjudication. In the immigration context, this withhold is considered a conviction.
In 1996, Congress approved additional immigration reforms. Drug cases that were originally not grounds for deportation, became deportable offenses and the laws were made to apply retroactively. Thus, a drug offender, who previously pled to an offense at a time when that charge carried no threat of deportation, was now deportable. We can expect a large number of the 34,525 on the deportation list would list drug offenses as the basis for the deportation.
No Right to an Attorney When Facing Misdemeanor Charges
Every attorney knows Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963), is the case that established the right to counsel for indigent defendants accused of felony crimes. Attorneys who do not practice criminal law often are surprised to find out there is no similar right to an attorney in misdemeanor or criminal traffic cases if the defendant is not facing jail time as a result of the conviction. Florida Statute section 27.512, prohibits indigent defendants from having legal representation in misdemeanor cases if the defendant will not be facing jail time on the misdemeanor offense, and the judge enters an order to that effect. This is called an Order of No Imprisonment (ONI). Yes, that is correct. The defendant with no money to hire an attorney has no defense attorney on a misdemeanor case even when there are immigration consequences. The number of people negatively impacted due to the consequences of a misdemeanor offense is astounding. Miami-Dade County has the highest rate of ONIs in Florida. Every year for the past 10 years, more than 50,000 indigent defendants have faced misdemeanor convictions without legal representation. While not every misdemeanor is a deportable offense, the impact to non-citizens who cannot afford a criminal defense attorney on a misdemeanor offense can be devastating. More alarming, the misdemeanor conviction may be the decisive reason why a deportation order is entered. If the Department of Homeland Security ever releases the identity of the 34,525 Cubans who have been issued orders of deportation, it is likely to contain names of people convicted of misdemeanors without the benefit of counsel for the criminal case or during the immigration proceedings.
No Right to Counsel in Immigration Court if you are Indigent
The U.S. government says there is a right to an attorney in immigration court. However, the right to an attorney in immigration proceedings is an illusory right when the person lacks funds to hire an attorney. An indigent person facing deportation or exclusion from the U.S. does not have the right to government-appointed counsel. An attorney is essential because relief from deportation is possible. One with the benefit of an attorney to present his or her case in immigration court is in a much better position to present his/her case and avoid deportation back to Cuba. For example, relief may be sought when one is facing deportation proceedings as a result of a misdemeanor conviction obtained in a case where an Order of No Incarceration has been entered because a misdemeanor conviction does not fall into the category of crimes resulting in automatic deportation.
No Te Preocupes, You Won’t Be Deported to Cuba
Older Cubans who were caught up in the drug epidemic of the 70s, 80s and 90s often were told not to worry about deportation consequences by their lawyers and even some judges. My experience as the Public Defender in Miami-Dade County revealed these lawyers and judges reasoned the U.S. did not have relations with Cuba, and an agreement already had been reached to deport only the violent “Mariel” felons. That message was not only conveyed in criminal court. In fact, many Cubans signed waiver of deportation hearing forms or deportation orders without the assistance of counsel while in custody for a criminal case, without even their criminal defense attorney being notified. I have heard countless stories of Cubans approached by ICE officers, Border Patrol agents, or INS officers, as they were previously known, and asked to sign a deportation order under the pretense that “this paper you are signing is just so you do not have to go to court.” They often were told “it is a deportation paper but you don’t have to worry. No one gets deported to Cuba.” Since December 17, 2014, immigration attorneys have been inundated with calls from concerned Cubans who had a remote brush with the law and signed a deportation order. These individuals are afraid they now will be shipped back to Cuba where they have no family, while their U.S.-born children and grandchildren remain in the United States.
If the U.S. agrees to repatriate the 34,525 who already have a deportation order, thousands of Cubans will need legal assistance in immigration court. Even if private attorneys volunteer in droves, the social and economic disruption in Miami-Dade will be enormous.
A Possible Solution
The United States has established a precedent for dealing with repatriation of those who have been deported after originally seeking asylum. That precedent comes to us in the form of the 2008 agreement between United States and the Socialist Republic of Vietnam. The agreement states, in pertinent part, the following:
Removable Persons and Conditions of Acceptance
- The Vietnamese Government will accept the return of Vietnamese citizens in accordance with Article 1 and item 2 of Article 2 of this Agreement, if upon investigation the individual meets the following requirements:
(a) The individual is a citizen of Vietnam and is not a citizen of the United States or of any other country;
(b) The individual previously resided in Vietnam and has no current residence in a third country;
(c) The individual has violated U.S. laws and has been ordered by competent authority removed from the United States; and
(d) If the individual has been convicted of a criminal offense (including immigration violation), the person will have completed any imprisonment before removal, and any reduction in sentence will have been ordered by competent authority.
- Vietnamese citizens are not subject to return to Vietnam under this Agreement if they arrived in the United States before July 12, 1995, the date on which diplomatic relations were re-established between the U.S. Government and the Vietnamese Government. The U.S. Government and the Vietnamese Government maintain their respective legal positions relative to Vietnamese citizens who departed Vietnam for the United States prior to that date. (emphasis added).
Undoubtedly, the immigration situation between Cuba and the U.S. is far more complex than it was with Vietnam because of geographical proximity, length of time the two countries have been without normal relations, and the pervasive anti-immigrant sentiment in Congress. Even if the U.S. wished to push for the removal of these Cuban nationals, it is doubtful the Cuban Government would want to absorb the 34,525 Cubans who have obtained deportation orders nor the additional thousands who are eligible for deportation. Nevertheless, we expect the U.S. government not to leave the fate of tens of thousands of Cuban-American families in the hands of a Communist Cuba.
 Maria Sacchetti, Cuba Deal Brings Deportation Questions, Boston Globe, Dec. 26, 2014.
 See generally, Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Division C of the Omnibus Appropriations Act of 1996 (H.R. 3610), Pub. L. No. 104-208, 110 Stat. 3009..
 See Agreement Concerning the Acceptance of the Return of Vietnamese Citizens, U.S.- NAM., Jan. 22, 2008, 08 - 43.