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U.S. Insists Repatriation of 12 Cubans Is Not Change of Policy

by Carl R. Baldwin

On July 21, 2003 the U.S. repatriated 12 Cubans who had seized a government boat and headed for Florida and freedom from Fidel Castro. Why they were repatriated after the tragic repatriation last April of another Cuban boat and its passengers needs to be looked at.

Let's start with a summary from the July 21 issue of Newsday: "U.S. officials on Monday repatriated 12 Cubans who were intercepted at sea after allegedly hijacking a government boat and taking three Cuban security guards hostage. American officials said they decided to return the Cubans home after receiving assurances the alleged hijackers wouldn't be executed. The U.S. State Department spokesman Philip Reeker said American authorities determined the Cubans were ineligible for amnesty [he must have said or meant 'asylum,' rather than 'amnesty'] because they had committed acts of violence in Cuba as well as against Coast Guard personnel who boarded the boat Wednesday." That must be a reference to what the U.N. Handbook on Procedures and Criteria for Determining Refugee Status refers to as the "Exclusion Clauses," and which are called "Exceptions" to asylum in INA Section 208(b)(2)(A)(iii): "(where) there are serious reasons for believing that he has committed a serious nonpolitical crime."

It is certainly a novelty to read in Granma, the government paper, words of praise for the "valuable contribution of the United States in the struggle against the hijacking of ships" (my translation from the Spanish text; these words of praise are conspicuously absent from the English version of the Granma article).

Let's hear from the State Department's spokesman, Philip Reeker, in his daily briefing on July 21, 2003.

"Question: What was the State Department role in the decision to send back the Cubans who hijacked the boat?

Mr. Reeker: The United States repatriated 15 individuals to Cuba today. This was done after taking into account our obligations under international law, our migration accords with Cuba, and our commitment to ensuring a coherent migration policy that protects our borders. And so with the Justice Department and the Coast Guard fully looking into the facts of this case, it was determined that 12 of this group of 15 appeared to have unlawfully taken the vessel, the 'Gaviota 16,' from Cuban territory and kidnapped three Cuban security guards. And during the interdiction by U.S. authorities in international waters, some of the 12 involved also physically assaulted Coast Guard boarding personnel.

Question: But in view of the previous incident in which hijackers were executed, don't you have any reservations about sending these people back to their possible death?

Mr. Reeker: We carried this out consistent with our standard practice under the Migration Accord with Cuba. The Department of Homeland Security interviewed all 15 individuals to determine whether they had protection concerns and found that they were not eligible for protection because they had committed acts of violence in Cuba as well as those who had committed acts of violence against the Coast Guard personnel. So those who stole the vessel were disqualified for consideration as refugees under U.S. law. We did feel, however, that it was incumbent on us to take into account the lack of due process that resulted in the execution of three Cuban hijackers, as they were called, of the ferry 'Baragua,' back in April. And on July 17 Cuba volunteered an informal statement to us indicating that they did not regard this 'Gaviota' case as similar to the 'Baragua' case. They informed us that the accused would be tried on charges of armed robbery and kidnapping, not on charges of hijacking, and that the Cuban government would ensure that no individual would be sentenced to more than 10 years in prison for any act committed with respect to the 'Gaviota' case."
Congressional representatives from Florida expressed indignation and outrage at the repatriation of the Cubans. According to the July 22 issue of El Nuevo Herald, the Spanish-language Miami newspaper, Rep. Lincoln Diaz-Balart had these rather severe words to say (my translation): "This action makes the United States an accomplice of whatever happens to the returned refugees. This act of infamy in coordination with Cuban tyranny is a monstrous deed that must be condemned."

I look at his rather differently from the Congressman, although I share his dismay at the long record of human rights violations of the Cuban dictator's regime. In light of the fact that the Castro regime is accustomed to handing out twenty year-plus prison sentences to dissidents who have merely peacefully expressed disagreement with the government, the prospect of a ten year sentence for someone involved in the overt act of what is ship hijacking, whatever milder term may be assigned to it, does not seem to me to be out of line.

A final word from the U.S. came in a statement by James Cason, head of the U.S. Interests Section on July 22. It was published in Granma, which must have found it "valuable." Cason insists there is no new policy to be gleaned from the recent repatriation: "Recently there have been rumors related to a change in our policy in the context of migratory matters. These rumors are false. Cuban citizens who take to the sea in a mistaken effort to reach the U.S. coast in an illegal and unsafe manner should be aware that our country's security agents will make every effort to intercept them."

The repatriation of the 12 Cubans leaves one with an extremely uneasy feeling. From a strictly legal point of view, as explained by Mr. Reeker and Mr. Cason, it seems justifiable, and even required by law. But one cannot forget the conditions of repression that led and may continue to lead to violent acts by desperate people seeking to flee from tyranny.

About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. Mr. Baldwin's website of articles and commentary is at Mr. Baldwin has written a book on immigration law, "Immigration Questions and Answers," Allworth Press, 2002, which contains essential background information on how the immigration law works. It can be ordered online at

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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