Why Cuban lighthouse migrants can’t stay in U.S.

Last month, 24 Cuban migrants scaled an iron lighthouse located in about four feet of water off the coast of the Florida Keys. The Coast Guard eventually coaxed them off the 136-year-old American Shoal Lighthouse and has detained them for over a month on a Coast Guard cutter.

The migrants promptly filed suit in federal court, asking a judge to declare that they reached United States dry land, and allow them to seek relief as Cuban refugees pursuant to U.S. immigration law.

The Court denied that relief on Tuesday, which means the migrants will be processed for repatriation to Cuba.

No matter your individual opinions about Cuban immigration to the United States, it’s hard not to have a little sympathy for these migrant seafarers. They were so close— less than seven miles from shore — yet so far away. Legally it wasn’t enough.

If you were rooting for the migrants to stay in the U.S., you can’t fault the court. The judge reached the right result based on the law. More specifically, the court reached this result because of a longstanding policy, reducible to a single word: “deference.” Sometimes a reviewing court is duty bound … to do nothing at all.

The Law

Cubans who come to the United States receive unique treatment under current immigration law and policy. Even without documents authorizing their presence, they can remain in the United States without demonstrating that they suffered persecution or proving refugee status.

However, the law can only benefit Cubans who actually “reach” U.S. soil (those with “dry feet”) while those who are intercepted at sea (those with “wet feet”) are repatriated to Cuba. This is known as the “Wet-Foot/Dry-Foot” policy.

The problem is, Congress doesn’t offer guidance about what exactly constitutes reaching U.S. soil.

As is often the case, agencies and branches of government must fill in the statutory gaps. The Department of Homeland Security develops its own operational procedures for executing policy, which is carried out by the Coast Guard. That policy is: Migrants interdicted in U.S. waters, or onboard a vessel moored to a U.S. pier, or on pilings, low-tide elevations or — and this is the big one — “aids to navigation” are not considered to have come ashore in the U.S.

Migrants who reach structures permanently connected to dry land have not technically landed ashore … but they are generally treated as if they had reached dry land. So with this guidance, was this a “wet foot” or “dry foot” situation?

In this case, the Coast Guard reviewed pictures of the lighthouse and made a determination based on its policy that the migrants had not reached U.S. soil and would be returned to Cuba.

The Court

You might think that the job of the courts is to determine whether a government agency properly followed the law, as interpreted by the court. That’s what the plaintiffs in this case wanted from the court. Sometimes that’s what courts do — they get involved and right perceived wrongs.

But not always. In fact sometimes the court’s role is the opposite: to do nothing. The formal name for it is “deference.”

The Supreme Court has held that the judicial branch should defer to the executive branch in the immigration context. As long as the agency’s policy was within the range of reasonable choices, the court should leave the agency’s action alone. A judge cannot simply invalidate a policy with implications for international relations just because the judge personally would have preferred another.

So then, the case centers on this question: Was it completely unreasonable for the Coast Guard to determine that the lighthouse was an aid to navigation, and therefore did not constitute dry land of the United States? The answer is no. The Coast Guard followed their executive policies and procedures in making their determination.

Could they have arrived at a different conclusion? Possibly. Should the Department of Homeland Security or the Coast Guard come up with some new policies? Maybe. But those questions are and were immaterial to the court’s narrow duty here.

“Deference” as a judicial practice runs counter to our traditional notions about what courts do. We envision them in action; stepping in to overturn unconstitutional laws, free the wrongly imprisoned, and defend civil rights. Sometimes the most powerful thing they do is also the quietest: nothing. Staying out. Inaction. Deference. Whether you disagree with this law, the executive branch, or Homeland Security, the court here got it right.

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