The new changes in diplomatic relations between the United States and Cuba that President Obama have enacted are being met with some trepidation by many Cuban nationals who are living in the United States, many in the south Florida area. Prior to the change in these relations, Cubans who had been convicted of a criminal offense in the United States could not, for the most part, be deported to Cuba, following the term of their criminal sentence.
For most individuals who are nationals of a foreign country, once their sentence is served in state or federal custody, an immigration hold or detainer is issued. Most often, these individuals are ordered removed or deported to their country of origin, without ever stepping foot outside of confinement and placed on a plane returning them home. Convicted Cubans do not face the same consequences as other nationals. Once a Cuban national has served their term, they are often ordered removed or deported by an immigration judge, however, they are soon released into the community, since the government of Cuba has refused to accept their return. There are currently over 34,500 Cuban nationals present in the United States with an order of removal or deportation and have been issued a stay of removal which allows them to remain in the country, receive work authorization and driver’s licenses.
Officials from the Department of Homeland Security (DHS) are holding meetings with Cuban officials and are currently in discussions surrounding the possibility of having some of these convicted Cuban nationals returned to Cuba. Alejando Mayorkas, the deputy secretary of the DHS stated this week that the United States is hopeful that the Cuban government will be receptive to the idea of returning some of these convicted criminals.
This is very disconcerting for many of these individuals, who accepted an order of removal or deportation from an immigration judge, with the knowledge that they would not be physically removed to Cuba. If the possibility existed at the time they took the plea, certainly many of those same individuals would not have accepted an order of removal without coming up with a defense, such as an application for Political Asylum, Withholding of Removal or protection from removal pursuant to the Convention Against Torture, otherwise known as CAT.
However, for the time being, the law regarding the deportation or removal of Cubans from the United States has not changed and these individuals are free to remain in the United States, without the present fear of removal.
Currently, the Department of Homeland Security, Immigration and Customs Enforcement (ICE), generally prioritizes who they seek to physically deport from the United States. At the top of the list are convicted felons, who have committed violent or dangerous crimes, such as murder, rape, assault and the like. The second tier of the priority chart are serious crimes, such as drug offenders who have been convicted of crimes beyond those of personal use, such as drug traffickers or smugglers. The last category of crimes which are considered the lowest priority of ICE are individuals who have committed a crime such as petit theft or a misdemeanor such as driving without a valid license.
For the Cubans who fall into one of the categories that ICE prioritizes, they are all keeping their eyes and ears on the news to see if the new developments between the two nations will bring a change to the deportation and removal policy of the Department of Homeland Security.