Cuba is known for exporting many things, among them cigars, rum, and rumors of Fidel Castro’s death.
The Eleventh Circuit’s opinion in United States v. Dominguez deals with two of Cuba’s most beloved exports: baseball players and asylum seekers.
Wet Foot/Dry Foot
First, a bit of background. As an expression of a reasoned and principled immigration policy, the official position of the United States has been that if someone is trying to leave Cuba and come to the United States, whether or not they are welcome depends on whether they are able to physically make it to U.S. soil.
If a person fleeing Cuba walks up out of the surf onto a United States beach, they are eligible to stay in the country. If the person leaving Cuba is intercepted by the Coast Guard, or Immigration and Customs Enforcement, in the water, they are not allowed to stay. This is called the “Wet Foot/Dry Foot” policy.
This policy has always struck me as the application of the Calvinist idea that the best measure of divine approval of a person is his or her wordly success to immigration policy – we can tell whether you’re worth keeping in the United States by looking at whether you were able to make it here. Sensible or not, this is our country’s policy. Perhaps we just prefer people who don’t require towels.
Gustavo Dominguez knew this policy. Mr. Dominguez was a professional sports agent who worked with professional baseball players.
Competition for baseball talent is tough. Mr. Dominguez was looking for a new way to serve potential clients.
As a result, he worked with another man – Mr. Medina, who had a career in smuggling – to bring five baseball players to the United States from Cuba by boat. One the first try, the Coast Guard shot out the engine of their boat. The players went back to Cuba.
On the second try, the baseball players made it to the Florida Keys. They arrived on dry land in the United States and were dry foot people for purposes of our government’s Wet Foot/Dry Foot policy. The players then traveled to California, where they met an immigration lawyer and played baseball for talent scouts.
Sadly, though three of the players signed minor league contracts, none wound up in the Major Leagues.
As the court of appeals opinion describes it,
Medina has lived a life of crime; he has numerous prior convictions for drug trafficking, smuggling, insurance fraud, and money laundering.
As is so often the case, Mr. Medina found himself on the wrong side of a federal investigation. To reduce his time in prison, he shared with federal prosecutors the work he had done with Mr. Dominguez to bring these players to the United States.
Mr. Dominguez was charged with smuggling the baseball players into the country, transporting them to avoid immigration officials, and harboring them to avoid detection by the officials.
He went to trial and was convicted of the smuggling, transporting, and harboring crimes under 8 U.S.C. § 1324.
Mr. Dominguez argued that because the U.S. Wet Foot/Dry Foot policy meant that the players would be allowed to stay, he could not be found guilty of smuggling them into the country contrary to immigration law.
The court of appeals disagreed. The court noted that after an amendment, the portion of 8 U.S.C. § 1324 that prohibits smuggling a person into the country,
Section 1324(a)(2) now punishes any person who knowingly brings to the United States an alien while knowing or recklessly disregarding the fact that the alien has not received “prior official authorization to come to, enter, or reside in the United States.” The statute explicitly states the offense occurs “regardless of any official action which may later be taken with respect to such alien.” 8 U.S.C. § 1324(a)(2).
Thus, as the court of appeals held, the immigration status that matters is not the person’s immigration status eventually – even if that status is inevitable – but rather the person’s immigration status at the time he or she is brought into the country.
For that reason, the Wet Foot/Dry Foot policy does not allow a person in the United States to, as it were, help dry the feet of someone coming from Cuba. If you’re going to make it here, you’ve got to make it here without help.
Harboring and Transporting
Mr. Dominguez, though, fared much better on his harboring and transporting charges.
Because he brought the players to an immigration lawyer quickly and had them openly auditioning with baseball talent scouts, the court of appeals thought that he simply could not be thought to be secretly transporting or harboring these men from immigration officials.
As the appellate court noted,
the players lived freely and openly. They played baseball, went out with friends, ate at restaurants, and watched professional baseball games. On November 12, 2004, the players were “showcased” in front of scouts from almost every Major League team.
Based on this evidence, a reasonable jury could not find beyond a reasonable doubt that Dominguez transported the Cuban players from Miami to Los Angeles in order to further their illegal status.
Mr. Dominguez’s convictions for transporting and harboring the baseball players were reversed and the case was sent back for resentencing.