THE BLOG
06/14/2014 08:47 am ET Updated Aug 13, 2014

Denying Visas to Cuban Scholars Cripples Obama's Policy of Engagement

Despite the stalemate in relations between the U.S. and Cuban governments, President Barack Obama deserves credit for deepening relations between the two societies. His 2009 decision to lift restrictions on Cuban American family travel and remittances has led to a five-fold increase in family visits and remittances have more than doubled. His 2011 decision to restore "people-to-people" educational travel that George W. Bush abolished has produced a cornucopia of travel options for ordinary Americans interested in exploring the long-forbidden isle.

Obama also relaxed restrictions on academic exchanges, opening the door to a flurry of new programs. Working level U.S. diplomats seem sincerely eager to expand academic cooperation and are willing to work with Cuban universities to make it happen -- just as they would normally do in any other country.

Yet every year, the administration shoots itself in the foot, alienating the U.S. and Cuban academics whose cooperation it needs, by arbitrarily denying visas to Cuban scholars invited to participate in the Latin American Studies Association's international congress. And it does this under the dubious authority of a moribund Reagan-era presidential proclamation designed to thwart the very engagement that Obama is trying to foster.

With a membership of over 7,000 academics and intellectuals from around the world, LASA is the premier professional association for the study of Latin America. Cuban scholars have been participating in LASA since 1977, except from 1986 to 1988, when Ronald Reagan's administration refused to grant visas to any Cuban scholars, and from 2004 to 2008, when George W. Bush did the same.

Bush excluded Cuban scholars as a matter of policy to further his strategy of cutting all channels of academic, cultural, and societal interaction. After the State department denied visas to all 60 Cuban applicants for LASA in 2004, and all 59 in 2006, LASA voted to hold its congresses outside the United States until the policy changed.

With Obama's election, LASA returned, based on assurances from the State Department that visas for Cuban scholars would no longer be denied on policy grounds; each case would be decided on its merits. And so it seemed, at first. In 2012, State approved a visa for Raúl Castro's daughter, Mariela Castro, to attend the LASA congress in San Francisco and present her work on sexual diversity in Cuba. But that sparked a firestorm among conservative Cuban Americans on Capitol Hill.

Ileana Ros-Lehtinen (R-Fla.) accused Obama of having a "delusional love fest with the dictators in Havana." Senator Robert Menendez (D-N.J.) declared that the United States should not provide defenders of Cuba's "totalitarian regime... with a platform from which to espouse its twisted rhetoric."

The administration beat a hasty retreat. It didn't retract Mariela's visa, or any of the dozens already approved for other Cuban scholars. But it denied almost all the visa requests that had not yet been processed (11 in all), which ironically barred some of the most prominent, open-minded Cuban intellectuals who have consistently argued for better U.S.-Cuban relations -- among them Rafael Hernández, Carlos Alzugaray, and Soraya Castro (no relation to the famous family). Many of those denied had been to the United States repeatedly over the years, and would be granted visas again subsequently, suggesting that the denials were aimed at mollifying the Capitol Hill gremlins.

Unfortunately, this proved not to be a one-time concession by the administration. In 2013, 89 Cuban scholars applied for visas to attend the LASA congress in Washington, DC, and 13 were denied. This year, over 100 applied, and just four were denied -- but both times the excluded were, once again, among the most prominent applicants.

When challenged, Obama's State Department insists it should get credit for the dozens of visas approved, not criticism for the handful denied. But the denial of visas is not supposed to be determined by political convenience in any case. Section 212 of the Immigration and Naturalization Act (8 U.S. Code § 1182 - Inadmissible aliens) , specifies in great detail the legal grounds for denying a visa application, and denied applicants have the right to be told which subsection of the law has disqualified them.

There are ample grounds in section 212(a) for denying applicants who may pose a threat to U.S. security because of involvement in terrorism, crime, or intelligence activities. But none of these provisions have been invoked in the case of the Cuban scholars. Since the Bush administration first began its wholesale denials, all but a handful of Cuban applicants have been denied under the same provision of the law, subsection 212(f), which reads:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

To understand how Cuban scholars are "detrimental to the interests of the United States," we have to refer back to the relevant presidential proclamation, issued by Ronald Reagan in 1985. It bars visas for anyone the Secretary of States considers "to be officers or employees of the Government of Cuba or the Communist Party of Cuba."

In a centrally planned economy like Cuba's, almost everyone works for the government, so this proclamation could be interpreted to apply to anyone working in a state cultural or academic institution. That is how the Reagan and Bush administrations chose to interpret it. The Obama administration, like the Clinton administration before it, appears to use a narrower interpretation that allows visas for most academics, artists, and writers.

But the truly absurd element of this story is the rationale for Reagan's original proclamation, on which all these visa denials rest. The proclamation was explicitly intended to punish Cuba for suspending the 1984 migration agreement, "thereby disrupting normal migration procedures," as the proclamation itself states.

Cuba and the United States agreed to reinstate the 1984 agreement in 1987, and have since signed two additional migration agreements, in 1994 and 1995, all of which are functioning effectively. So the 1985 Reagan proclamation is an anachronism that no president has thought to rescind. President Obama should declare victory in the effort to secure Cuban cooperation to provide for safe and legal migration, and rescind the proclamation as no longer relevant.

But until he does, it remains on the books, providing a mechanism for the State Department to arbitrarily and without explanation deny visas to almost any Cuban who applies. The review process for visa applications is completely opaque and the State Department will not provide any details about how it works or what the decision-rules are.

Could it be that the scholars excluded by Obama's State Department are regarded as "officials" because of the prominent positions they hold in their home institutions? Well, no, because a number of them whose LASA applications were repeatedly denied nevertheless have been granted visas in between the denials, even though their positions in Cuba have not changed. The LASA meetings themselves seem to be the trigger for the denials -- probably because the large number of Cuban participants attracts hostile attention on Capitol Hill and the administration feels compelled to deny some to mollify its critics.

Cuban visa applicants who pose a real security threat to the United States can always be excluded under the relevant subsections of 212(a). In fact, section 212(a)(C)(3)(i) even provides a broad foreign policy rationale for exclusion:

In general an alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible.

But unlike 212(f), this provision has a built-in safeguard. It cannot be invoked merely because U.S. officials don't like what the visitor may say. Visas may not normally be denied "because of the alien's past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States." Under this provision, Cuban scholars could not be excluded just because, as Bush's State Department spokesman said in 2004, they would just "spout the party line."

In section 212(a), Congress wisely constrained the executive's authority to deny visas on ideological grounds, safeguarding foreign visitors' freedom of expression precisely to prevent the sort of arbitrary, politically-motivated denial of visas that Cuban academics have suffered since 1985.

Cuban authorities are rightly criticized for sometimes limiting the right to travel of scholars whose outspokenness transgresses the boundaries of what is deemed politically correct. The United States ought to set an example of respect for academic freedom by rescinding Reagan's outdated proclamation, ending the use of section 212(f) to declare whole categories of Cubans "detrimental" without cause, and restoring the requirement that Cubans only be excluded when they pose a threat to the United States by their actions, not their ideas.

Coming soon! Back Channel to Cuba: The Hidden History of Negotiations between Washington and Havana by William M. LeoGrande and Peter Kornbluh.
Click to pre-order.