Cuban skyjackers win asylum

By CAROL ROSENBERG
Herald Staff Writer

An immigration judge in Bradenton handed U.S. officials a major defeat Tuesday by granting political asylum to three Cubans who commandeered an airplane to escape Cuba, then crashed it into the sea off Florida's Gulf Coast.

The three men were charged with hijacking, but a jury in Tampa acquitted them. Federal authorities sought to deport them anyway, arguing that Cubans who hijack airplanes are terrorists. The Clinton administration developed that policy, after years of welcoming skyjackers with open arms, as part of the immigration agreement with Cuba that ended the 1994 rafter crisis.

But, in his ruling Tuesday, Immigration Court Judge Kevin McHugh said the three Cubans ought not to be deported because they had reason to fear retribution from the Fidel Castro's government: They stole an airplane; they dropped anti-Castro leaflets near Havana as they fled the island; and one of the men cooperated with U.S. authorities investigating the Cuban MiG shootdown of a Brothers to the Rescue aircraft on Feb. 24, 1996.

Granted asylum Tuesday were Jose Roberto Bello-Puente, 24, Adel Regalado Ulloa, 24, and Leonardo Reyes Ramirez, 29, all of whom are being held at the Manatee County Jail while U.S. authorities decide whether to appeal McHugh's 47-page decision.

The Cuban men came to this country Aug. 16, 1996, when their small commercial aircraft ran out of fuel and crash-landed about 30 miles south of Sanibel Island, near Fort Myers. A passing Russian freighter rescued them and turned them over to the U.S. Coast Guard.

After the pilot, Adolpho Perez Pantoja, argued he was forced to fly from Cuba against his will, and returned home, the trio was put on trial in a Tampa federal court for hijacking -- but acquitted by a jury.

Despite the acquittal, U.S. authorities argued that, with the 1994 migration accords, the trio had entered the country illegally and had legal means to come to this country -- for example, by applying for a visa at the U.S. Interest Section in Havana. The judge rejected the argument.

``If courts were to deny asylum to aliens who migrate through illegal channels when there are, arguably, legal mechanism to facilitate migration, hardly anyone would be granted asylum,'' McHugh said. In this case, the trio's ``method of departure is not so reprehensible as to warrant an adverse finding on the issue of discretion.''

Further, the judge rejected federal attorneys' arguments that the three men should be excluded from the U.S. because they engaged in so-called criminal activities in Cuba. ``Given the political-economic nature of the communist regime in Cuba, the fact that respondents illegally bought and sold various commodities in the black market of Cuba does not present a great adverse impact against them,'' he said.

In Washington, the decision caught officials at both the Justice and State departments by surprise.

Justice Department spokesman Myron Marlin said government lawyers were studying the ruling to decide whether to appeal it. Andrew Lluberes, a spokesman for the Immigration and Naturalization Service referred questions about policy implications to the State Department.

And Deputy Assistant Secretary of State Lula Rodriguez referred the question back to the Justice Department. The State Department, she said, ``only plays an advisory role'' on asylum matters and could not comment ``in order to protect the integrity and the confidentiality of the asylum process.''

The decision was the latest blow to the federal government's effort to prosecute as terrorists Cubans who hijack boats and planes to come to this country. It lost another skyjacking test case in a federal court in Washington, D.C., that of former Cuban Army Col. Jose Fernandez Pupo, who commandeered a Cuban commuter plane at gunpoint. Denied asylum here, he is being held in a Virginia prison on an immigration judge's order that he be deported to a third country because he might be tortured in Cuba.

Miami attorney Wilfredo Allen, who argued for Pupo's asylum, hailed Tuesday's ruling. ``Once again, the government tried to paint these people as criminals and hijackers,'' he said. ``This time a courageous judge didn't buy it and granted them asylum.''

Asylum was awarded in part, McHugh said, because the three men ``dropped anti-Castro leaflets over Cuba while en route to the United States,'' an act that could make them susceptible to persecution were they returned to the island.

Further, the judge found the men have a reasonable fear of persecution because they have cooperated with the FBI and other federal authorities in their investigation of the 1996 Brothers to the Rescue shootdown over the Straits of Florida that killed four men.

The trio was represented by attorney Ralph Fernandez of Tampa, who earlier this year held a news conference in Miami to announce that one of the men, Regalado, had been cooperating with a federal government investigation of the shootdown. Fernandez said Regalado had told U.S. prosecutors and FBI agents in a series of debriefings that he had witnessed a Cuban Air Force dress rehearsal of the shootdown.

Brothers to the Rescue founder Jose Basulto also hailed Tuesday's decision, accusing the U.S. government of being in league with Cuban efforts to silence Regalado. His testimony, Basulto said, was ``an important piece of the puzzle.''

Fernandez said he hoped the three men would soon be set free to help federal prosecutors in South Florida continue their investigation of the shootdown.