Thousands of recently arrived Cubans who have come to the United States through the U.S.-Mexico border will not be able to obtain permanent U.S. residency because the paperwork federal authorities gave them does not make them eligible for it, the Board of Immigration Appeals said in a ruling Monday.
The federal agency that oversees immigration-court appeals concluded that Cubans who have been released into the country with a document known as I-220A, a common practice for those coming over the border, are technically not admitted or paroled into the U.S. under the requirements of the Cuban Adjustment Act.
The 1966 Act allows eligible Cubans to apply for a green card — which grants permanent residency — a year and a day after coming to the United States. The decades-old law has made it possible for many Cubans to seek U.S. residency much faster than other nationalities.
Cubans receiving an I-220A already faced difficulties using the Act to gain residency. Monday’s decision concluded that entering the U.S. with an I-220A document is different than being granted a humanitarian parole, and that Cubans with an I-220A are not eligible to change their immigration status under the Act. They are limited to appealing their cases, pursuing more traditional routes of legalization such as asylum, or risk becoming undocumented or deported.
“They are all now going to be found ineligible for the Cuban Adjustment Act… and the only way they can seek redress is to have their cases denied and continue to appeal in federal court,” said Mark Prada, a partner at Miami-based immigration law firm Prada Urizar Dominguez. He has argued in several cases that it is illegal for the government to release Cubans into the U.S. with just an I-220A form.
U.S. Customs and Border Protection has had over 346,000 encounters with Cuban nationals at the U.S.-Mexico border since October 2021, according to federal data. It’s unclear how many have been released from immigration custody under a parole versus an I-220A. But several South Florida lawyers told the Miami Herald that most Cuban clients they have come across recently have been released with the I-220A documentation.
Immigration court judges will have to follow the precedent from the Board of Immigration Appeals because it is binding, unless a federal appeals court or the U.S. Attorney General says otherwise.
“This case is a message to immigration judges that you aren’t going to grant these cases anymore,” Prada said.
Monday’s ruling came in a case in which a judge granted permanent residency under the Cuban Adjustment Act to a group of Cubans in August 2022, after the Department of Homeland Security had detained them near the U.S.-Mexico border “without being inspected and paroled.” They were released with I-220As documents. But Homeland Security challenged the judge’s decision, and the board sided with the agency.
“The Immigration Judge reasoned that the respondents’ release occurred through a grant of humanitarian parole by operation of law… We conclude that the Immigration Judge erred,” the decision said.
Prada said at least two immigration judges in Miami have granted legal residency under the Cuban Adjustment Act to people allowed into the country with I-220As forms. Those judges reasoned that releasing Cubans with I-220As was essentially an “improperly documented release” and the only legal explanation for the release was humanitarian parole, said Prada.
“The Department of Homeland Security was appealing every single one [of those cases] as far as I could tell,” he said.
An I-220A, an Immigration and Customs Enforcement document formally known as an “Order of Released on Recognizance,” releases people from federal custody as long as they comply with certain conditions such as attending immigration court hearings, not violating local and federal laws and, if required, use an ankle monitor.
Prada has argued in several cases since 2019 that releasing Cubans with just an I-220A form is illegal, that the federal government gave those Cubans the wrong documentation when released, and that they should have been issued a parole.
Maureen Porras, director of Church World Services, an organization in Doral that offers social and legal services to immigrants, said that her organization has seen hundreds of Cubans released with I-220As in the last five months, although her group is also seeing more people released under regular humanitarian parole as well.
Prada said that because the case was remanded to the immigration judge who made the original decision, the Cubans involved cannot immediately appeal to a federal court. Prada told the Herald that he will find other cases that can be appealed.
This story was originally published September 12, 2023, 5:30 AM.