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He insisted that from the start he had intended to turn over his passengers to the Coast Guard to make sure they came in legally and applied for political asylum. "Didn't you read the newspaper and watch TV?" asked INS trial attorney Howard Marbury. "Didn't you see that the government was repatriating people coming in without the proper documents?"
"Yes, but my objective was not to bring them into the United States," Juan replied with a defiant edge to his voice. "It was to rescue them from this madness."
"You were going to turn your mother and those kids over to the Coast Guard so they could return them to Cuba?" Marbury continued.
"Yes. It would be better than letting them die."
It's doubtful that Juan imagined his relatives would really be sent back to the place where they found life impossible and might face harassment after their return. After all, his own experience upon arriving in U.S. waters in July 1992 had been a different matter. In an interview during a break in his trial, Juan said he'd left Cuba in a wooden boat with about twelve other people and had been picked up by the Coast Guard about 25 miles off the Florida coast. The passengers, like most incoming Cubans then, were taken ashore, granted parole (after a year parolees can apply for residency), and had gone on to start new lives.
"We got off the [Coast Guard] boat on July 4, a holiday, and everyone was partying," Juan recalled. "It was a wonderful day." He shook his head, smiled ironically, and again his eyes shone with tears. "So different from this time."
Miami immigration attorney Tammy Fox-Isicoff, who isn't involved with this case, understands the suffering U.S. immigration policies wreak on thousands of families. And Juan's dilemma "just doesn't bend my heart," she says.
"While I feel bad for this family," Fox-Isicoff explains, "I've seen far worse." Referring mainly to 1996 Illegal Immigration Reform and Immigrant Responsibility Act provisions that seek to weed out criminal aliens but have often meant incarceration, deportation, and financial calamity for upstanding legal residents and even citizens, she adds, "I hear stories every day about people's lives being completely ruined after 50 years of exemplary living."
The summer of 1992 saw huge numbers of balseros, or rafters, risking the perilous journey to the United States in crafts made of inner tubes (sometimes just a single inner tube) and whatever else they could scavenge. Often spotted at sea by the volunteer pilots of the newly formed Brothers to the Rescue, they were generally welcomed as heroes who had triumphed over impossible odds.
But since a 1994 agreement between Cuba and the United States, Cubans interdicted at sea are no longer automatically eligible for "parole" status. Now they, like people fleeing other countries, must convince an INS asylum specialist that they risk persecution if returned to their country. If they can't, they are sent back on the spot, as Juan's relatives were. If the INS thinks their asylum claims may be valid, they don't just walk off the boat into the arms of waiting family members -- they are taken to the U.S. naval base at Guantanamo, Cuba, for processing. In a situation like Maria Elena's, involving sickness or other emergency, the INS will not repatriate the immigrant and will usually grant parole. Those who make it to U.S. soil aren't repatriated; depending on their circumstances, they may be temporarily detained at Krome and/or handed over to a social services agency for resettlement here or in other parts of the country.
A U.S. State Department spokesman explains that the number of Cubans attempting to illegally enter the United States has actually declined in recent years, but professional smuggling (which can net operators $3000 or more per refugee) has become more of a problem as individuals try to bypass the complicated and expensive machinations necessary to immigrate legally.
Smuggling operations, no matter which nationality is being smuggled, do seem to be bigger and better organized, says border patrol supervisory special agent Thomas Hampson. Since October 1997 the Miami regional office of the border patrol (the investigative arm of the INS) has recorded more than 120 apprehensions of alien smuggling operations in progress. For the entire previous fiscal year, beginning in October, there were slightly more than 90. "It's a cyclical thing, though," says a federal source. "Smuggling has been heavy this summer, but there are times it's been heavy in the past. There's no one reason arrests are up this year, but law enforcement is definitely getting better."
Smuggling also received stepped-up publicity this spring and summer as the U.S. Attorney's Office in Miami, which prosecutes most smuggling cases (although not Juan's) has enlarged its staff, and the Coast Guard has assigned three of its agents to work on smuggling cases with the INS.
In some ways, Juan was fortunate that the U.S. Attorney's Office wasn't interested in prosecuting him on criminal charges. Now he won't have a criminal record, and he won't have to spend time in federal prison. On the other hand, it's harder to prove smuggling in federal court than in an administrative immigration case. Two facts probably figured into the decision not to prosecute Juan criminally, according to two federal sources who asked not to be named: Everyone on the boat was related to him in some way, and there was no indication he was earning money from the trip. In federal court, with a largely sympathetic Hispanic jury, he might well have gone free.