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Introduction

Since February of 2020, more than 200,000 people in the United States alone have died with COVID-19. Experts estimate over a million people have died with the virus worldwide and according to the World Health Organization, one in ten worldwide may have contracted the virus at some point. As the U.S. and the world struggle to recover from the catastrophic effects of the coronavirus pandemic, health care workers have earned a newfound sense of respect and appreciation, both at home and abroad.

Against the backdrop of this international crisis, and to many a surprise, one country in particular is gaining newfound recognition for its subsidization and dissemination of talented health care professionals: The Republic of Cuba. While Cuba’s exportation of a seemingly impressive number of doctors and nurses is hardly news to the international community, the recent deployment of these workers is garnering significant attention and, inevitably, raising some salient questions. Specifically, is Cuba’s commissioning of health care professionals a master class in international charity? Or has something more wicked this way come? Unfortunately—and increasingly as seems to be the case in developments involving the Republic of Cuba—when it comes to the Pearl of the Antilles, the devil is in the details.

 

Mandatory Medical Missions

Despite its notoriously poor economic and human rights records, the communist Caribbean-island nation has deployed over 2,000 doctors and nurses overseas to nearly forty countries around the world since the start of the pandemic to assist in the fight against COVID-19. Today, doctors remain one of Cuba’s most lucrative exports, with 50,000 Cuban doctors currently working across sixty-seven countries. Bringing in more than $11 billion in annual revenue, Cuba’s appropriately dubbed “army of white coats” brings in more income each year than the country’s entire tourism industry. If this is not impressive enough, Cuba provides more medical staff to developing nations than all G7 countries combined. But while Cuba attributes its sending of doctors abroad to an innate sense of Cuban “altruism, humanism, and international solidarity,” others have criticized the nation for the mistreatment of their medics—some going so far as to call it “slave labor”—in what many consider a gross exploitation of human capital under the guise of goodwill and compassion.

According to José Miguel Vivanco, America’s director at Human Rights Watch, “Cuban doctors deployed to respond to the COVID-19 pandemic provide valuable services to many communities, but at the expense of their most basic freedoms.” Specifically, the Cuban government deprives Cuban doctors of their right to privacy, movement, and freedom of expression. According to a resolution issued by Cuba’s Ministry of External Commerce and Foreign Investment in 2010, Resolution 168, the Cuban government imposes effective control, under the threat of criminal sanctions, over health workers’ participation in political or social demonstrations, public expressions of opinion, friendships, roommates, and even romantic relationships.

Cuban healthcare workers not only report lacking basic human rights, but basic economic and property rights as well. In addition to harsh working conditions and excessive hours, Cuban medical personnel do not have the rights to income they earn abroad. In a recent U.S. Department of State (“DOS”) news conference, Cuban Dr. Ramona Matos Rodríguez recounted that in addition to having her passport taken from her upon arrival to her host country, nearly all of her earnings were sent back to Cuba and were frozen in inaccessible accounts until her mission was completed. But it isn’t as simple as refusing to volunteer. Although participation is not mandatory per se under Cuban law, healthcare workers, like Dr. Ramona Rodríguez, fear retaliation if they refuse to participate in medical missions.

In fact, failure to comply with any of Cuba’s strict regulations as they apply to doctors on missions, including those forbidding resignation without authorization, can and often do result in persecution by the Cuban government, including severe social ostracization, steep fines, banishment from or revocation of the right to return to Cuba, and, in many cases, imprisonment. The systematic subjugation of Cuban doctors has led the DOS not only to rank Cuba in its 2020 Trafficking In Persons (TIP) Report as a “Tier 3” country for its failure to comply with minimum standards for the elimination of human trafficking as defined in the Trafficking Victims Protection Act of 2000, but also to urge the United States’ Latin American allies to refuse Cuban medical aid, the income from which is presumed to provide the Cuban Communist regime with undue political and economic influence. Make no mistake—Cuban medical missions are a form of human trafficking. It comes then as no surprise, given the gross human and economic rights abuses they face daily, that Cuban medical professionals on mission are searching for asylum at the doorstep of U.S. embassies. But does the United States stand with Cuban doctors in word only and not in deed?

 

U.S. Immigration Law and Its Impacts on Cuba

For non-citizens seeking to enter the United States through the southern border, recent changes to immigration law have made entry more challenging, particularly as a result of the 2019 Migrant Protection Protocols (“MPP”) and policy changes surrounding the COVID-19 virus. Known colloquially as the “remain in Mexico” program, the MPP is a government action that allows the U.S. Department of Homeland Security (“DHS”) to return to Mexico certain foreign individuals entering or seeking admission to the United States from Mexico without proper documentation to wait outside the U.S. for the duration of their immigration proceedings. The MPP applies to citizens and nationals of other countries, other than Mexico, arriving in the United States on land from Mexico when they are not clearly admissible, or when they are placed in removal proceedings under Section 240 of the Immigration & Nationality Act. As of March 2020, the highest percentages of MPP returnees were from Mexico, Honduras, Guatemala, and Cuba, as non-citizens from many South and Central American nations often enter through Mexico. However, the MPP is not yet settled law. Not long after the U.S. Court of Appeals for the Ninth Circuit upheld a federal district court’s decision blocking the U.S. government from enforcing the MPP in Innovation Law Lab v. Wolf, 951 F.3d 1073 (9th Cir. 2020) did the Supreme Court of the United States stay the order granting preliminary injunction pending a petition for writ of certiorari. The Supreme Court granted certiorari on Oct 19, 2020 and is allowing the federal government to continue to enforce the MPP until its legality is determined.

Entry has become even more complicated for many non-citizens in the wake of the COVID-19 virus. In March 2020, the U.S. Department of Health and Human Services Centers for Disease Control and Prevention ordered a suspension of the introduction of people from countries where an outbreak of a communicable disease exists, under Title 42 of the U.S. Code. Since March, “expulsions” under this order have become the most common means of returning non-citizens arriving from Mexico, overtaking the MPP. Of course, in the wake of a global pandemic, limiting travel has become an important protective measure, but the implementation of Title 42 has also become a critical tool for the U.S. government to deny entry to otherwise eligible asylum-seekers.

Until June 2020, non-citizens also faced the “third country transit bar.” The third country transit bar works slightly differently from the MPP. Instead of removing non-citizens to Mexico when they were not clearly admissible or placed into removal proceedings, the third country transit bar rendered all non-citizens ineligible for asylum from the beginning if they had passed through other countries en route to the United States. This means that even non-citizens who had clear cases for asylum could be removed simply because they had passed through another country on their way to the United States. As such, almost all Cuban nationals who made it to the United States were barred from obtaining asylum because they had traveled through other countries on their way to the United States, even if they felt unsafe in the countries through which they passed. The policy did leave one option available: under the third country transit bar, those facing a fear of persecution were still eligible for withholding of removal, a benefit that forestalls deportation after the conclusion of a hearing before an immigration judge. However, for many Cuban doctors working in other countries, this bar meant they would have to return home to Cuba from their jobs in those third countries, before proceeding directly to the United States to be considered for asylum.

Finally, when it comes to the relationship between U.S. immigration law and Cuba in particular, the following two enactments immediately stand out: the special parole policy for arriving Cuban nationals, more widely known as “wet-foot/dry-foot,” and the Cuban Medical Professional Parole (“CMPP”) Program. Introduced by the Clinton Administration in the 1990s, and abruptly ended by the Obama Administration just nine days before President Trump’s inauguration, wet-foot/dry-foot colloquially refers to the revision made to the 1966 Cuban Adjustment Act, which allowed Cuban nationals who made it to U.S. soil a unique path to residency. Similarly, in 2017, the DHS announced an end to the CMPP Program, which allowed certain “Cuban medical personnel in third countries (that is, not in Cuba or the United States) to apply for parole at a U.S. embassy or consulate.” Under the CMPP Program, a Cuban medical professional could qualify for consideration for parole if they, among other things, were a medical professional currently conscripted to studying or working in a third country at the direction of the Cuban government. Given the recent end to the CMPP Program, Cuban doctors are left with little choice but to turn to the U.S. asylum system—a tremendously backlogged system that, in 2017, was already strained by the ending of wet-foot/dry-foot and has since been further overwhelmed by the MPP, the third country transit bar, and Title 42.

One positive change for asylum-seekers arrived in July 2020, when the U.S. District Court for the District of Columbia vacated the third country transit bar, in Capital Area Immigrants’ Rights Coalition v. Trump, No. 19-2117 (TJK), No. 19-2530 (TJK), 2020 WL 3542481 (D.D.C. June 30, 2020), holding that the bar was unlawfully promulgated. However, many asylees have already been barred from asylum on these grounds. Today, as more and more Cuban doctors defect to the United States amidst growing safety concerns and at the mercy of a broken asylum system, a unique set of hardships and legal challenges awaits them.

 

Cornell Law Asylum Clinic and Dr. Merlys Rodríguez Hernández

Not only do Cuban doctors face many legal hurdles to obtaining asylum in the United States, but they are also frequently subjected to prolonged detention upon arrival. The U.S. immigration system mandates that all non-citizens, even those who are eligible for asylum, be detained when they arrive at a United States border without previously having secured authorization to enter. As such, these non-citizens are mandatorily detained pending the consideration of their applications for asylum, which can often take a long time. One Cuban doctor, Dr. Merlys Rodríguez Hernández, has now been detained for over a year on these grounds.

Dr. Rodríguez Hernández’s case illustrates the inconsistent outcomes that result under the current U.S. immigration system. Cuban natives, Dr. Rodríguez Hernández and her husband, Dr. Almanza Paneca, were sent to Venezuela on a medical mission together in September 2015. In Venezuela, they were forced by the Cuban government to forge medical records, sign a war commitment to defend Venezuela, and question patients about their commitment to the re-election of Venezuelan President Nicolás Maduro. In addition, they were subjected to incredibly dangerous living conditions, including living in a neighborhood where they witnessed murders by Venezuelan gangs almost weekly. Further, they were told that they would be required to work in Venezuela for three years, with no breaks and no pay from Cuba. Instead, they were “paid” the minimum wage by the Venezuelan government. However, instead of paying them directly, the Venezuelan government sent their paychecks back to Cuba, where the Cuban government placed the money into personal accounts that the doctors could access only after their medical mission was completed.

When Dr. Rodríguez Hernández and Dr. Almanza Paneca refused to attend a public celebration of an amendment to the Cuban Constitution, Cuban officials in Venezuela forcibly removed them from their home and held them captive in the jungles of Venezuela for ten days. During that ten-day period, the Cuban government not only raided their residence in Venezuela, taking all of their personal belongings, but drained their bank accounts back in Cuba, taking from them what little they did earn from their years of work in Venezuela, as well as from their savings prior to participating in the medical mission. The Cuban government then stripped them of their medical licenses and sent them back to Cuba, labeling them as “deserters.” Fearing further punishment, Dr. Rodríguez Hernández and Dr. Almanza Paneca fled from Cuba in July 2019.

On their journey to the United States, Dr. Rodríguez Hernández and Dr. Almanza Paneca traveled through Nicaragua, Honduras, Guatemala, and Mexico. They did not apply for immigration relief in any of these countries because they did not feel confident that the other countries could adequately protect them. When they reached the United States, both doctors immediately applied for asylum, withholding of removal, and protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

After being detained for six months, Dr. Almanza Paneca was denied asylum on the basis of the third country transit bar, because he had passed through several other countries on his way to the United States. However, he was granted withholding of removal—a less-beneficial form of relief compared with asylum—because the court found that he was “more likely than not” to be persecuted if he returned to Cuba. He was subsequently released from detention in May 2020.

On the other hand, and with a practically identical factual background, a different immigration court denied Dr. Rodríguez Hernández asylum on the basis of the third country transit bar. The court further stated that Dr. Rodríguez Hernández would be ineligible for asylum even without the third country transit bar because she is not a political “dissident who is being targeted by the Cuban government.” Of course, this is inconsistent with the fact that the Cuban regime had directly informed Dr. Rodríguez Hernández that it had labeled her as a deserter. Further, the immigration court found that Dr. Rodríguez Hernández was not eligible for withholding of removal because she failed to show that it was more likely than not that she would be persecuted if she were forced to return to Cuba—a decision inconsistent with her husband’s grant of withholding on these same grounds by a different immigration court.

The cases of these two doctors illustrate the uneven application of the U.S. immigration laws—even in cases with identical facts. Further, these cases elucidate the difficulty that Cuban doctors and other asylees face in fleeing Cuba. Finally, Dr. Rodríguez Hernández’s case also depicts the importance of bond release for many non-citizens who pose no threat to society and should therefore not be detained while they await adjudication. Instead of being allowed to use her medical training to assist with the fight against the coronavirus in the United States, Dr. Rodríguez Hernández was detained by the U.S. government in Arizona for a period of over one year, where she contracted COVID-19 herself and had to fight the virus while receiving allegedly substandard medical care in the detention center.

Dr. Rodríguez Hernández and Dr. Almanza Paneca are now represented by the Cornell Law Asylum and Convention Against Torture Appellate Clinic, who are advocating for them in the courts. On October 27, 2020, Dr. Rodríguez Hernández was granted bond while she awaits the outcome of her other proceedings.

 

A Way Forward

Cuban medical professionals face a variety of legal hurdles in seeking to free themselves from exploitation by the Cuban government. Ultimately, however, Cuba’s exploitation of their healthcare workers, and the United States’ subsequent rejection of them, are two sides of the same coin. The abrogation of the third country transit bar is now being challenged on appeal and the law surrounding the bar remains fluid, suggesting that asylum applicants will be better-positioned if they can travel directly to the United States from their home countries. However, this strategy is infeasible due to recent COVID-19 travel restrictions and the effective closure of the southern border. Moreover, even if Cuban nationals could enter under Title 42 and successfully avoid the third country transit bar, these measures would not solve every problem, as the laws governing asylum eligibility are still unevenly applied.

Because the DOS has already stated that Cuban medical missions constitute a form of human trafficking, legislators should consider creating a more particularized process, akin to the CMPP Program, through which Cuban doctors could apply for a special form of relief if they can prove that they have been forced to participate in a mandatory medical mission. And efforts are currently underway. This past June, a bill was introduced titled “Cut Profits to the Cuban Regime Act of 2020” which, if enacted, would require the DOS to publish the list of countries that contract with the Cuban regime for their medical missions program and to consider that contract a factor on their ranking in the DOS’s annual TIP Report. Similarly, in September, Senators Bob Menendez and Marco Rubio introduced bi-partisan legislation that goes even further, seeking to re-establish the CMPP Program and allow eligible Cuban medical professionals and their immediate family to come to the United States. Still, it is unclear what political traction, if any, these bills will gain. Let’s hope they do, because the barriers that Cuba’s “white coat army” faces with regards to asylum and other forms of immigration relief, even after enduring a U.S. government-recognized form of persecution, must be eliminated—and soon—if the interests of justice are to be served.

Disclaimer: The information, materials, and opinions contained in this article are for general information purposes only, are not intended to constitute legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances.

About the Authors:

Michael Mirabella is a third-year law student at Cornell Law School. Originally from Florida, Michael earned his Bachelor of Science in finance from Florida State University and now serves as an editor for the online edition of Cornell Law School’s Journal of Law & Public Policy, The Issue Spotter. Of Cuban-American descent, Michael is a first-generation law student and a proud student member of the Cuban American Bar Association.

 

 

Kayleigh Yerdon is a third-year law student at Cornell Law School. Originally from New Jersey, Kayleigh earned her Bachelor of Science in Industrial and Labor Relations from Cornell University. Kayleigh is a member of the Advanced Asylum and Convention Against Torture Appellate Clinic and a Co-Director of the Special Immigrant Juvenile Status Project at Cornell Law School.

 

 

Suggested Citation: Michael Mirabella & Kayleigh Yerdon, Oppression at Home, Rejection Abroad: How U.S. Immigration Law Disappoints Cuba’s White Coat Army, Cornell J.L. & Pub. Pol’y: The Issue Spotter (Oct. 31, 2020), http://jlpp.org/blogzine/oppression-at-home-rejection-abroad-how-u-s-immigration-law-disappoints-cubas-white-coat-army/.