ADVICE FOR TRAVELERS TO CUBA
July 1, 1999
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The Center For Constitutional Rights
666 Broadway New York, NY 10012
212.614.6464 Fax: 212.614.6499 ccr@igc.apc.org
a non-profit legal/educational organization committed to the creative use of law as a positive force for social change continuing the legacy of the National Emergency Civil Liberties Committee
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CONTENTS
I. An Introduction to Advice for Travelers to Cuba
II. What is prohibited? What is allowed?
III. The Exceptions to the Travel Ban
A. General Licenses
B. Specific Licenses
1. Specific Licenses for Educational Institutions and Religious Organizations
2. Specific Licenses for Individuals
C. What Licensed Travelers May Spend and Bring Back
D. "Fully Hosted" Travel
IV. Before and During Your Re-entry
V. After Your Return
VI. About CCR
VII. Summary of Advice for Re-entry Customs Interview
I. AN INTRODUCTION TO ADVICE FOR TRAVELERS TO CUBA (1)
The laws and regulations relating to Cuba travel are complex, and in many respects vague and unsettled -- subject to many different interpretations. The enforcement of those laws is inconsistent, indeed haphazard, affecting only a small portion of the many thousands of annual travelers to Cuba. Knowing and exercising your rights is powerful protection against the risk of penalties that some travelers face for violating the U.S. embargo that restricts travel to Cuba. It is especially important for non-citizens to consult with an immigration expert about the possible effect of a Cuba trip on their status in the U.S., and for adults planning trips for, or with minors, to understand the law.
This pamphlet is geared toward Cuba travelers who wish to avoid confrontation with the government. We recognize, however, that some travelers knowingly choose to make no effort to either comply with the embargo, or to reduce their risk of becoming subject to government scrutiny. We at the Center for Constitutional Rights respect that stance and are ready and willing to advice and represent you as well.
II. WHAT IS PROHIBITED? WHAT IS ALLOWED?
The Office of Foreign Assets Control (OFAC), a division of the U.S. Department of the Treasury, enforces the Cuba travel embargo. The rules are called Cuban Assets Control Regulations and are part of the Trading With The Enemy Act.
The regulations DO NOT prohibit travel to Cuba. An earlier, 1963 version of the law created an outright ban on travel, but was found to violate the U.S. Constitution. The current regulations do prohibit transfer of money to Cuban nationals in some circumstances. The general rule is that you may not spend ANY money that ends up in Cuban hands, unless you qualify for one of the many exceptions to the ban. This includes payment for food, for lodging, for transportation to and in Cuba--any and all expenditures, whether in dollars or in another currency. IT ALSO INCLUDES MONEY SPENT IN THE U.S. OR IN ANOTHER COUNTRY - NOT JUST MONEY SPENT IN CUBA - IF THAT MONEY WILL END UP IN THE HANDS OF A CUBAN NATIONAL. For example, buying a plane ticket on Cubana, the national airline of Cuba, would be a violation even if the ticket is purchased in the U.S. or through a Canadian travel agent. On the other hand, buying a ticket on a non-Cuban airline (for example, Mexicana) is O.K., even if purchased in Cuba.
III. THE EXCEPTIONS TO THE TRAVEL BAN
There are THREE CATEGORIES of exceptions to the ban: general licenses, specific licenses, and fully hosted travel.
A. GENERAL LICENSES
The FIRST CATEGORY of exceptions to the ban is the "GENERAL LICENSE." Travel (or rather, the transfer of funds) under a general license requires no application or advance permission. It allows travel expenses incurred by:
1. U.S. and foreign government officials and representatives of international organizations of which the U.S. is a member, traveling on official business;
2. regularly employed journalists and supporting personnel;
3. persons, and their travel companions who share a common dwelling as a family, visiting close relatives, NO MORE than once in any 12 month period, in circumstances of "humanitarian need;"
4. full-time professionals engaged in a full work schedule of noncommercial, academic research that has a substantial likelihood of public dissemination;
5. full-time professionals engaged in meetings organized by international professional organizations, institutions or associations that are not headquartered in the U.S. and that regularly sponsor meetings or conferences in other countries; and
6. amateur or semi-professional athletes or teams, selected by the U.S. federation for that sport, participating in public athletic competitions held under the auspices of an international sports federation.
We advise that you consult the regulations directly to confirm that you qualify for a general license.
B. SPECIFIC LICENSES
The SECOND CATEGORY of exceptions to the ban, called "SPECIFIC LICENSE," requires an application and written permission from OFAC. There are TWO TYPES of specific licenses.
The FIRST TYPE specific license is available only to accredited educational institutions and religious organizations and is good for up to two years. It authorizes travel-related expenditures for multiple trips, by anyone affiliated with the institution who meets OFAC requirements relating to the purposes of the organization and the trip.
2. SPECIFIC LICENSES FOR INDIVIDUALS
The SECOND TYPE of specific license is available to individuals on a case-by-case basis and it allows travel expenses in connection with:
a. travel by persons, and their travel companions who share a common dwelling as a family, visiting close relatives, MORE than once in any 12 month period, in circumstances of "humanitarian need."
b. licensed humanitarian donations;
c. investigations by human rights organizations;
d. humanitarian projects;
e. free-lance journalism;
f. professional research or meetings that do not meet the criteria for a general license;
g. educational activities not connected with an academic institution holding a specific license, including educational exchanges under the auspices of organizations that sponsor people to people contact;
h. religious activities not connected with a religious organization holding a specific license;
i. public performances, clinics, workshops, athletic and other competitions or exhibitions;
j. the activities of private foundations or research/educational institutions;
k. the import/export of information or informational materials; and
l. the export of authorized products.
All specific licenses are available on a per-trip basis. In addition, those in categories c, d, e, f, h, and j, above may also be granted for multiple trips over an extended period. To get a specific license, you should file an application with OFAC at least 3 months before the trip, if possible. We advise that you first consult the regulations directly, so that your application can address all the requirements in the category(s) of specific license for which you want to apply. OFAC will then either grant or deny your application, although they have also been known simply not to respond in time.
C. WHAT LICENSED TRAVELERS MAY SPEND AND BRING BACK
People who travel under either a "general license" or a "specific license" ARE permitted to spend up to $183 per day (as of the writing of this document) for hotel, meals, local transportation and goods used in Cuba, plus additional amounts directly related to their licensed activities. They may bring back up to $100 worth of Cuban goods, such as cigars or rum, for personal use, but only once in any 6-month period. There is no limit on the purchase and import of informational materials, including written materials, audio and video tapes (not blank ones), CDs and records, photographs, paintings and other works of art.
Applications for a SPECIFIC LICENSE are by letter to:
Steven Pinter, Chief of Licensing
Office of Foreign Assets Control
U.S. Department of the Treasury
1500 Pennsylvania Ave., N.W.
Washington, D.C. 20220
We suggest that you apply several months in advance of your trip, and that you get advice from a licensed travel service provider on what information your letter should include. Call OFAC at (305) 810-5140 for a list of licensed travel service providers. Remember that travelers with a GENERAL LICENSE (see above) or those who are FULLY HOSTED (see below) need not apply for permission.
D. "FULLY HOSTED" TRAVEL
The THIRD CATEGORY of exceptions to the ban, called "FULLY HOSTED TRAVEL," is one in which ALL your travel expenses are paid by a person who is "not subject to the jurisdiction of the United States." You may not, however, reimburse that person to get around the rule that prohibits you from paying such expenses directly. YOU ALSO MUST NOT PROVIDE ANY SERVICE TO CUBA OR TO A CUBAN NATIONAL. Under a "fully hosted" trip, you should remember to arrange travel on a non-Cuban airline. OFAC regulations require you to obtain, maintain for five years, and provide upon request, detailed documentation supporting your claim that a trip is "fully hosted." The required proof includes a letter from the host indicating:
1. his/her identity and nationality (to show he/she is "not subject to the jurisdiction of the United States");
2. that payments made on your behalf (if any) were neither reimbursed by you, nor made in exchange for any services provided by you to Cuba or to a Cuban national; and
3. the circumstances of travel, including an explanation of how you avoided the usual travel-related costs for meals, lodging, transportation, entry and exit fees, gratuities, etc.
You should also remember that "fully" means just what it says. If all your travel is "fully hosted," except that you bought a soda on the street, or you paid a departure tax at the Havana airport with your own money, you have violated the embargo and may face a penalty if any such payment to a Cuban national is discovered by U.S. Customs agents upon your return. (Whether or not U.S. officials do discover or make an issue of a minor violation is another
question.)
Unlike travelers with a general or specific license, "fully hosted" travelers are NOT permitted to spend money in connection with their Cuba trip, and may NOT bring back Cuban goods. There are two exceptions to this rule. First, "fully hosted" travelers may purchase and import INFORMATIONAL MATERIALS, the same as licensed travelers (see above). Second, "fully hosted" travelers may apply for a license to retain gifts of small value that represent no commercial value to Cuba. Such gifts may be detained by Customs pending the outcome of the license application.
IV. BEFORE AND DURING YOUR RE-ENTRY
Although this rarely happens, customs officials are legally authorized to question and search travelers prior to departure from the U.S. IF YOU ARE QUESTIONED, DO NOT VOLUNTEER ANY INFORMATION AND ABOVE ALL, DO NOT LIE. Should officials try to seize anything of yours at this point, you should object strenuously, demand a receipt that fully describes the item seized, and contact legal counsel as soon as possible.
You are now on your way to Cuba, having fallen into one of four possible classes
of travelers:
1. under a general license (legal);
2. under a specific license (legal);
3. you are fully hosted (legal); or
4. you have no license and are not fully hosted (illegal).
Although you have not yet even arrived in Cuba, it is already time to focus on your return and re-entry meeting with U.S. customs and immigration agents. Whether or not you are traveling legally, you may be questioned, searched, harassed, temporarily detained (possibly missing a connecting flight), or threatened, but you will almost certainly be let go, unless you are suspected of a crime other than an embargo violation. Your legally (or illegally) obtained goods or materials may (or may not) be seized from you. Or you may simply be told "Welcome to the United States and have a nice day."
It is not the intent of this material to help anyone break the law. Our advice is to be honest when you are required to provide information, but to assert your right not to provide information when you can. In light of your rights and obligations, there are specific things you should know in anticipation of re-entry. They are:
1. Cuban officials sometimes do not stamp passports upon entry to and departure from Cuba, but if they do, it may be with a small symbol that can easily escape your notice, but is well known to U.S. customs agents. U.S. officials may note that you've been to Cuba either from your passport, or from your customs and immigration re-entry form (see below), or from tickets, receipts or other documents in your possession.
2. Upon return to the U.S., answer ALL questions on the customs and immigration form honestly and thoroughly. In other words, DO NOT try to hide the fact that you went to Cuba, if the form requires you to list all the countries to which you have been. (If you get one of the older forms that asks you to state only the country you are coming from, you may put that country without also putting Cuba, but remember that your passport and other documents may also show you’ve
been to Cuba.) Honesty is important for two reasons. One, it is not illegal to go to Cuba. While going to Cuba certainly suggests that you spent money there, you generally cannot be found guilty of an embargo violation unless OFAC can prove your specific expenditures. And though there may be exceptions to the previous statement (see the section, above, on A fully hosted travel), you should admit having been to Cuba for another reason: it is a federal
crime-perjury-to lie in a sworn statement to a government agent. A federal criminal conviction with possible jail time is much more serious than a mere civil embargo violation involving only a risk of fine. While criminal prosecutions for lying on the customs declaration form are extremely rare, you should tell the truth so that the government can’t use the threat of a criminal prosecution to encourage you to pay a civil penalty. If traveling under a general license, be sure to state that the purpose of your trip was business (not pleasure).
3. Remember that commercial transactions with Cuban nationals are illegal without a license. If you do not have a license and you wish to claim that your trip is "fully hosted," do not engage in any such transactions, including transactions before you go, such as the purchase of a ticket on a Cuban airline. Customs officials have been known to seize goods, receipts, plane tickets, airport departure tax slips, etc.--documents that are evidence of such transactions. You or your luggage are subject to search, and if you are neither licensed nor fully hosted (and perhaps even if you are) goods may be seized. Perhaps more important, such goods or receipts may be used as evidence of an embargo violation, if you are not licensed. OBJECT STRENUOUSLY BUT POLITELY TO ANY SEIZURE OF GOODS OR DOCUMENTS. DEMAND THE RIGHT TO CALL AN ATTORNEY. INSIST ON A RECEIPT FOR ALL GOODS SEIZED AND ON PHOTOCOPIES OF ANY SEIZED DOCUMENTS. Keep in mind that you may purchase and import unlimited quantities of INFORMATIONAL MATERIALS, although they may be wrongfully seized by an
overzealous agent.
4. It has been suggested that people have with them a copy of the applicable regulations to show the customs agent. This can cut both ways, depending on whether it helps or hurts in your particular case for the agent to know the rules. You can get copies of the regulations by contacting OFAC at (202) 512-1530 for disc or paper copies; at (202) 622-0077 to request copies by fax; or from the internet: http://www.treas.gov/ofac. You may also want to have this pamphlet handy.
6. Write down names, titles, and badge numbers of all officials with whom you have contact.
V. AFTER YOUR RETURN
You've successfully navigated the re-entry. As the pleasant memories of your trip begin to fade, you might receive a letter from OFAC, entitled REQUIREMENT TO FURNISH INFORMATION, suggesting that you have violated the embargo, and that you are required to answer certain questions. YOU HAVE A RIGHT TO REFUSE TO ANSWER THESE QUESTIONS, AND WE ADVISE THAT YOU SHOULD NOT ANSWER THEM UNLESS YOU HAVE CONSULTED AN ATTORNEY WHO KNOWS THE OFAC RULES AND PROCEDURES You (or your attorney) should, however, respond to the letter, stating that you refuse to answer OFAC's questions.
One of two things will happen next. Either you will not hear from OFAC again, and you can forget about it. This probably means they do not have evidence of an embargo violation and were hoping you would provide it to them by answering their questions. Or, you (or your attorney) will get a second letter, a PRE-PENALTY NOTICE. IT IS IMPORTANT THAT YOU RESPOND TO THIS LETTER IN THE TIME FRAME ALLOWED, AND WITH THE RIGHT LANGUAGE. Otherwise, you will forfeit your right to contest the charges and lose the leverage you have to negotiate a favorable settlement. Do not be nervous about this threatening letter, but do consult with counsel. An attorney is almost indispensable at this point and beyond.
For further information, call Legal Worker Joslyn Kaye, (212) 614-6470 at the
Center for Constitutional Rights. We at CCR provide advice and representation on these matters free of charge. We are especially interested in hearing from people and groups whose license applications have been denied or who have received "Requirement to Furnish Information" or "Prepenalty Notice" letters from OFAC. Evidence of your experience may help our legal challenge of the embargo.
VI. ABOUT CCR
The Center for Constitutional Rights is a private, non-profit organization that
receives no government funding but is supported through individual donations and
foundation grants. We are committed to the creative use of law to ensure the
preservation and development of individual liberties and human rights under the
U.S. Constitution and the Universal Declaration of Human Rights. Contributions
are tax deductible and may be sent to us at the address below.
VII. SUMMARY OF ADVICE FOR RE-ENTRY CUSTOMS INTERVIEW
Authorities are entitled to ask the questions listed below, to search your luggage and your person, and to seize contraband. If you are subjected to a body search (other than the content of your pockets), or if agents seek to seize anything from you, you should politely but firmly object and ask to speak to your lawyer. Demand a list of anything seized and do not sign any form that
gives agents your permission to take the items.
THE STANDARD QUESTIONS BY CUSTOMS INSPECTORS ARE:
What is your name?
What is your address?
What is your occupation?
Was the purpose of your trip business or pleasure?
Which countries have you been to, and for how long?
How much currency are you carrying?
Do you have anything to declare?
What do you have in your luggage and on your person?
If you are asked more than the above, we advise you to state:
"I have been advised by my counsel to not answer any further questions and to refrain from additional comment. Any further inquiries should be directed to my counsel:
The Center for Constitutional Rights
212-614-6470
666 Broadway
New York, NY 10012"
We advise that you keep this sheet handy for easy reference, if necessary, during your re-entry customs interview.
(1) This pamphlet summarizes Cuba travel restrictions and alerts Cuba travelers to the legal requirements and potential legal consequences they face. This is not a complete discussion of the rules and laws. It does not cover all questions, concerns and possibilities. And since laws, regulations, and their interpretation often change, it may be outdated by the time you read it.
(2) See "Summary of Advice for Re-entry Customs Interview," page 10.