Cuban migrants who climbed onto a 136-year-old lighthouse standing in shallow water off the Florida Keys should be allowed to remain in the U.S. because the structure is American territory just as if they had reached dry land, their attorneys told a federal judge Thursday.
Attorneys for the federal government, however, said at a hearing that the American Shoal lighthouse located about 7 miles from Sugarloaf Key is U.S. property but does not equal reaching U.S. shores. No immediate decision was announced after the hearing.
At issue is whether the lighthouse, a historic 109-foot iron structure that was in use from 1880 until 2015, qualifies as U.S. territory under the "wet foot, dry foot" policy. Under that policy, Cubans who reach U.S. shores are usually allowed to stay, while those intercepted at sea are generally returned home.
The controversy comes amid a surge in Cuban attempts to migrate from the communist island to the U.S., partly out of fear the favorable policy might change as relations warm between the two Cold War foes. The Coast Guard said attempts by Cubans to reach the U.S. by sea have increased 155 percent in May compared to the same month last year.
The 21 Cuban migrants who reached the lighthouse May 20 stayed there for several hours before they agreed to board a Coast Guard cutter, where they have remained ever since. The lighthouse has a large, eight-room living area once occupied by a keeper and other workers and sits on a submerged reef that was deeded to the U.S. by the state of Florida in the 1870s, according to testimony Thursday.
"This is a federal building, on federal land, in federal territory," said Kendall Coffey, a former Miami U.S. attorney who is among the migrants' lawyers. "We believe they are entitled to not being repatriated" to Cuba.
Assistant U.S. Attorney Dexter Lee said the Coast Guard had made a reasonable decision that the lighthouse did not equal U.S. shores and urged U.S. District Judge Darrin Gayles not to overturn it. He said it is too far to stretch the definition of "dry land" to include a lighthouse located on a Florida Straits reef, where the water is 4 feet deep at low tide.
"Just because the government owns a lighthouse does not mean it is dry land. It is surrounded by water. It is built on submerged land. It is not dry land," Lee said. "Somebody who wants to journey to the United States wants to get to dry land."
Gayles, saying at one point he was "wracking my brain" over the competing issues, did not issue an immediate ruling and said he would do so in two or three weeks. He noted the confusion surrounding U.S. policy toward Cuban migrants, which differs from that involving any other nationality.
"This sounds like it comes down to whether this was a reasonable interpretation of an unclear policy," Gayles said. "There are important decisions to be made. I don't want to be rushed."
In 2006, a different Miami federal judge ruled that Cubans who reached a portion of the abandoned Seven Mile Bridge in the Keys that was no longer connected to land still qualified as "dry foot" because the structure was U.S. territory. That ruling could play a key role in the lighthouse case, attorneys said.
The 21 migrants, meanwhile, are left in limbo. The Coast Guard had previously said it would not repatriate them until the legal questions were settled, but no such guarantee was offered Thursday. Gayles requested that if possible, the migrants remain under U.S. control until the matter is over. Lee said he would take the request up with Coast Guard officials.