The Volokh Conspiracy

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Open the Door to Cuban and Haitian Refugees

The Biden Administration is wrong to bar those who arrive by sea.


Refugees fleeing Cuba by boat. 1994.


In Cuba, protestors are bravely challenging the island's brutal communist regime, which has oppressed and impoverished its people for decades. The regime's much-vaunted supposed gains in health care are virtually all either mythical or the result of statistical manipulation assisted by repression. Meanwhile in Haiti, the assassination of the president and accompanying gang violence have increased the misery of a population already suffering from decades of corrupt and incompetent government.

In both cases, growing poverty, violence, and oppression may lead more people to seek freedom in the United States. One might expect an administration led by a President who makes a point of praising immigrants and America's historic role as a haven for refugees, to welcome such people with open arms. But, sadly, one would be wrong to do so. Instead, the Biden administration has made clear its determination to bar those trying to enter the United States by sea —which is the only way most Cuban and Haitian refugees can get to the US at all (as both are island nations). Reason's Billy Binion reported on this yesterday:

Department of Homeland (DHS) Security Secretary Alejandro Mayorkas said yesterday that the agency is working to support Cuba and Haiti….

That help will not include asylum—at least, if not sought in the "right" way. "Allow me to be clear: If you take to the sea, you will not come to the United States," Mayorkas said in a press conference. Those who do attempt to come to the U.S. by boat will be intercepted by the U.S. Coast Guard and sent back, while anyone lucky enough to finagle an asylum interview will be resettled elsewhere…

[T]he message still strayed far from the spirit of President Joe Biden's campaign, which put immigration front and center as he repeatedly pledged to restore the sort of humanity he said was missing from former President Donald Trump's immigration program.

"If individuals…establish a well-founded fear of persecution or torture, they are referred to third countries for resettlement," said Mayorkas. "They will not enter the United States."

As Binion notes, the Biden administration here is continuing a pre-Trump policy, not one initiated by the previous administration, with its special hostility to migration. It was, in fact, Barack Obama—during his last days in office—who cruelly ended the previous "wetfoot/dryfoot" policy under which Cubans who landed in the United States were allowed to stay.

But the fact that the policy predates Trump doesn't make it right. It still denies migrants fleeing brutal oppression even the chance to be considered for asylum in the United States. And it does so for no better reason than that they arrived by sea—which for most is the only feasible way to come at all.

This is an extreme case of the more general problem of migration restrictions condemning people to poverty and oppression merely because they made the mistake of being born to the wrong parents in the  wrong place. In these two instances, the oppression the migrants are fleeing is particularly dire (probably the two worst examples in the entire Western hemisphere, with the possible exception of Venezuela) and the distinction between land and sea arrivals adds an additional level of arbitrariness.

If they wish to be true to their professed principles, Biden and DHS Secretary Mayorkas should at the very least restore the pre-Obama policy of allowing Cuban refugees to stay if they reach dry land in the United States (and adopt a similar policy for Haitians). Better still, they should return to the pre-1994 policy of simply allowing Cuban refugees to stay regardless of whether US authorities first encounter them on land or at sea. Once again, the same points apply to Haiti.

Cuban and Haitian refugees are not the only ones who would benefit from this more humane approach. So too would current US citizens. Migrants from these two countries have made valuable contributions to our economy and society. As President Obama himself said just a few months before his cruel reversal of policy on Cuban migrants: "In the United States, we have a clear monument to what the Cuban people can build: it's called Miami."

Haitian migrants, too, have done well in the United States. They have employment rates higher than those of natives, and a household income just slightly below the national average, despite coming from one of the poorest societies in the Western hemisphere. And, as with most immigrants, their outcomes improve the longer they stay in the US.

In the case of Cuban migrants, accepting refugees from a hostile regime also strengthens the US position in the international war of ideas. That consideration is also relevant to current debates over accepting refugees fleeing China's oppressive government. Both Democrats and Republicans understood that point during the Cold War. If we want to make American influence great again—or build it back better—we would do well to remember it today.

Some may argue that Cubans and Haitians should be required to stay home and "fix their own countries." I criticized this sort of argument in detail  in a 2018 post, and in Chapter 6 of my book Free to Move.

Here, I will only note that we Americans are in an especially poor position to make such demands. The majority of current Americans are either themselves migrants from repressive regimes, or descendants of such people. If Cubans and Haitians have a duty to stay home and fix their awful government, the same goes for the ancestors of most current American citizens or (in the case of first-generation immigrants) those citizens themselves.

DHS Secretary Mayorkas is himself a onetime refugee from Cuba, brought to the US by his parents as an infant in 1960. Republican Senator Ted Cruz, who  advocates barring Hong Kong migrants fleeing Chinese repression, is also the son of refugees from Cuba. Had the sorts of policies the two men defend today been in place when their parents arrived, they might well have been excluded too. And if the Mayorkas and Cruz families had been required to stay in Cuba to "fix their own country," the high likelihood is that they would merely have consigned themselves and their children to a lifetime of poverty and oppression.

We should honor those who risk their lives to oppose oppressive governments, as many Cubans are now doing. Where possible, the US should do what it reasonably can to help them. But we should not claim that such heroism is a moral duty justifying the use of coercion to force people to stay in the country of their birth.

Since taking office, President Biden has made many improvements in immigration policy. Examples include ending Trump's anti-Muslim travel bans, terminating or allowing to expire the previous administration's bans on most immigration and work visas, revoking the border "emergency" declaration and the accompanying diversion of federal funds to build the wall,  fully reinstating DACA, and belatedly raising Trump's ridiculously low refugee cap. Given this track record, it would be a mistake to conclude that Biden and Mayorkas are as bad as Trump and Ted Cruz. But there is plenty of room for further improvement. And unjust immigration policies do not become acceptable merely because (as in this case) they predate Trump.

To their credit, refugee advocates pressured Biden into reversing his previous apparent initial decision to keep Trump's refugee cap. They should adopt a similar approach here. To the extent that crass political calculations influence these decisions, the administration should also consider the possibility that reversing Obama's cruel exclusion of seaborne Cuban migrants could help the Democratic Party regain some of the ground it lost among Cuban-Americans in the crucial swing state of Florida.

Ideally, of course, refugee policy should not be based on such considerations. The government should let in Cuban and Haitian refugees simply because it is the right thing to do. But doing the right thing for the wrong reasons would be good enough for government work.