CHAPTER 1

Persecution on Account of Race:Esteban Marcial Mosqueda of Cuba

Background

The island now called Cuba was discovered by ChristopherColumbus during his voyage to the New World in 1492. By 1514the Spanish Empire had colonized the island after brutal suppressionand massacres of the indigenous people, who were understandablyreluctant to work for their new European masters. In the absence ofa ready and willing pool of laborers, the Spanish eventually beganimporting slaves from Africa to work in the burgeoning and profitabletobacco, sugar cane, and coal-mining industries—a practice thatcontinued until slavery was abolished in Cuba in 1886.

Except for a short period in the eighteenth century when it washeld by Great Britain, Cuba was ruled by Spanish governors until itgained independence in 1902 following four years of United Statesoccupation at the end of the Spanish-American War in 1898. For thenext four decades, Cuba democratically elected a series of presidents,many of whom proved ineffective in dealing with the corruptionthat arose in response to increased prosperity. After World War II,Cuba enjoyed a boom in its economy, health services, and educationalopportunities, but many of these gains were undermined by thegovernment of Fulgencio Batista, who had been elected president in 1953.

On January 1, 1959, under pressure from the United States anda growing number of opposition citizen and guerrilla groups withinCuba, Batista fled the country. Backed by his own followers as wellas other rebel armies and groups that had been gathering with himin the mountains, Fidel Castro stepped into the void. Six days later,the United States recognized the Castro government and sent a newambassador to the island.

Within months of seizing power, however, Castro purgedall of his political opponents (and even some of his supporters),took over the media and schools, and instituted a one-partyCommunist system that brooked no opposition or questions.By the summer of 1959, the stunned Eisenhower administrationbegan planning the ouster of Fidel Castro, and relations betweenthe two countries deteriorated rapidly as it became apparent fromhis public statements that the new dictator wanted nothing to dowith the United States.

Soon after his inauguration in January 1961, President John F.Kennedy authorized the notorious Bay of Pigs invasion in whicha US-trained force of approximately 1,300 Cuban exiles invadedthe southern coast of Cuba with the intention of overthrowing theCastro government. Castro's armed forces defeated the invaderswithin three days.

In October 1962, in what became known as the Cuban MissileCrisis, the United States successfully cordoned off internationalwaters in order to prevent the Soviet Union from sending into Cubamore missiles than those previously discovered in U-2 reconnaissancephotos. Soviet economic aid, however, continued to pour into Cubauntil the final collapse of the Soviet Union in 1991.

Left largely unchecked either by any internal voice of reason orby the Soviet Union, the Communist Party of Fidel Castro beganimprisoning moderates and members of the middle class in forcedlabor camps soon after it came to power. Many Cubans of Europeandescent who could afford to leave the island did so, and as theeconomy declined, unemployment soared.

In 1972, the Castro government instituted an anti-loafing lawthat made it a crime to be a working-age male without a job. Thosecaught not working could either go to jail or go fight in Soviet-backedwars on the African continent in Angola, Algeria, Congo,and Ethiopia.

While slavery had been abolished in Cuba in 1886, prejudicehad not, and although the black population of Cuba increasedenormously over the next seventy-five years, it remained at thebottom of the social and job structure and was viewed as inferior bythose of European descent who controlled the government and theeconomy. Additionally, as the United States became more invested inCuba politically and economically, it tacitly endorsed the ideologicaland attitudinal apartheid on the island and did as little to promoteracial equality there as it did within its own borders.

By the time of the Castro revolution in 1959, an estimated 60to 70 percent of the Cuban population was of African or mixedAfrican heritage and thus obviously outnumbered those who were ofstrictly Spanish or European descent. Initially, many Afro-Cubanssupported the revolution, believing its egalitarian promises ofland reform, better education, and adequate health care and socialservices. And even though matters did seem to improve superficiallyin the early years of the regime, Castro made it very clear that theprimary goal of his revolution was to eliminate distinctions in classrather than in race.

As Euro-Cubans and their money fled postrevolutionary Cuba,they left behind a crumbling economy, an iron-fisted dictator,and a majority Afro-Cuban underclass that had little money, fewresources, no power, and absolutely no avenue for the redress of theirgrievances. One of the repressive tools of the Castro governmentwas the formation of Committees for the Defense of the Revolution(CDRs) that were (and still are) block-watch groups charged withreporting any allegedly counterrevolutionary speech or activity tothe government.

In order to survive, many Afro-Cubans resorted to buying andselling goods on the black market, and some would occasionallyquestion obvious racial disparities in housing or employment. Bothof these activities, along with penalties for violating the anti-loafinglaw, caused the imprisonment of Afro-Cubans in numbers fardisproportionate to even their majority status.

In early April 1980, starting with a small group and eventuallyswelling to 10,000 citizens, Cubans seeking asylum from their owngovernment stormed the Peruvian embassy in Havana. In response,Fidel Castro announced that any Cuban who wished to leave thecountry could do so through the port of Mariel. From April 15to the end of October, there was a mass exodus of approximately125,000 Cubans, most of whom traveled by boats and rafts to theUnited States. The Cuban government also saw fit to release manyCubans who were in prisons and mental hospitals and to direct ortransport them to the port. A large percentage of those released frominstitutions were Afro-Cubans. Castro labeled all who departedCuba "undesirables" and "scum."

As a matter of general policy, the United States government didnot seek to deport or repatriate anyone who had fled postrevolutionaryCuba unless he or she had been convicted of a crime in thatcountry.

In Court

Esteban Marcial Mosqueda entered the courtroom for his asylumhearing in July 1991 with an able attorney. He had not had one whenhe first appeared before me a year earlier at a master calendar, andwhen I picked up his file to start preparations a few days before thehearing, I was pleased to see that an experienced lawyer had takenhis case pro bono.

Attorneys who specialize in immigration law seldom enter thatarea of practice to grow wealthy or famous, and many of them aregood-hearted but overworked individuals who grew up in immigrantfamilies and want to honor that part of their heritage. When I firststarted working as a judge, I would sometimes try to cajole a solopractitioner into taking a meritorious case for free, appealing to hisor her moral (if not legal) obligation under the code of ethics to dosome pro bono work. But I soon stopped doing that, because I haddoubts about whether judicial ethics permitted my predeterminingwhich cases could be developed into winners with the assistance ofcounsel and which did not warrant an attorney's efforts.

Mr. Marcial was in deportation proceedings because he hadbeen convicted in his country of the crime of loafing. Thus, unlikenoncriminal Cubans, he was ineligible to pursue US residency ayear after his arrival in the United States and was therefore requiredto seek asylum if he wished to remain here. His asylum applicationwas clear and coherent, and it stated that the basis of his claim waspersecution based on race.

In my almost four years on the bench, I had not heard a race-basedasylum case, nor did I know much about Cuba other thanwhat mainstream American media had reported since Castro cameto power in 1959. During a brief period in the late 1970s when Cubawas temporarily open to American visitors, a few of my students atthe University of Massachusetts had traveled there with a professorin the Afro-American Studies program, and I had heard from themonly glowing reports about how the revolution had transformedall aspects of that country. So at a minimum, I looked forward tohearing Mr. Marcial's case not only because he had a skilled attorneybut also because it would be another learning experience for me.

I remembered Mr. Marcial from his first court appearance a yearearlier because he was so black. When I had worked for the New YorkLegal Aid Society, several of my clients had been black Puerto Ricans,so the concept of black Latinos was not new to me. Mr. Marcial,however, was the darkest Latino I had ever seen, and if I had not knownhe was Cuban, I would have thought that he was from Africa.

Unlike many asylum applicants from Central America, he wasnot deferential, although he was polite. I was aware that manyCubans have at least high school educations and are proud of theircommand of the Spanish language, and I had noticed that theoriginal handwritten affidavit accompanying Mr. Marcial's asylumapplication—even though it had later been translated and word-processedby his attorney—was literate in its own right.

There were several pieces of supporting documentation, eachof which pointed to ongoing racism and racial discrimination inpostrevolutionary Cuba. Under United States asylum law, however,not every instance of discrimination or unfair treatment is viewedas persecution, and I was therefore especially interested in how thiscase might unfold. It began in this matter-of-fact way:

I am Esteban Marcial Mosqueda, the only son of AnaGutierrez Marcial and Félix Sotolongo Mosqueda. I wasborn in Havana, country of Cuba, on June 4, 1960, and Icompleted high school in 1978. My father died that summer.He was a porter. My mother was a maid. She died last year,and I was not there to bury her. I was still an infant when therevolution came, so I do not remember it. But my motherand my father talked about it often and told me there wasdancing in the streets. Todos los negros [all the black people]thought their lives would change.

In school I learned about Fidel and what he did forus, and even though my grades were good, my classmateslaughed at me because I am so dark. One of them calledme a mambí [a somewhat derogatory reference to blackguerrilla fighters who rebelled against the Spanish Empire inthe nineteenth century], and when I told this to my father,he swore and told me to be strong. I had hoped to go touniversity, but when he died, I knew I had to work.

I took the paper with my grades and started askingeverywhere for jobs. My mother was still working, but shehad problems with her heart. I lived with her in an apartmentsmaller than this courtroom. Many things were wrong withit. I wanted to make money to fix it up and let her quit herjob. I walked around the city every day and went in bakeriesand butcher shops asking for work. One of the owners saidhe would never let someone as black as me work for him.Then I tried a few small stores that sell used clothing, butno one had a job for me.

By October, I was desperate. I saw my mother was notwell, and I made an appointment for her at the clinic. Theytold her to come back in six months. I begged for them tosee her sooner, but they reported me to the CDR in myneighborhood for making elitist demands. A few days laterI asked for a job cutting sugar cane in the fields, but the bosssaid he had heard I was a troublemaker, so I gave up hope.

I knew someone who did illegal things. He would gointo the countryside and buy eggs from a peasant for a verylow price and then sell them on the black market for a profit.The thought of doing things like this scared me, but it wasall I had. So I worked for him and made a few pesos to helpmy mother.

In May of the next year [1979], I was walking homealong a busy street, and the police jumped out at me. Theydemanded my identity card, and I showed it to them. Theyasked me where I worked, but I did not want to get myfriend in trouble, so I told them I was looking for a job. Theytold me I was a criminal because I did not have a job, andthey took me to the police station and held me for six hoursand called me mancha el negro [stained black man]. Thesewere Fidel's police!

I begged them to let me go home to my mother, andthey finally pushed me out the door. After this, I was tooscared to go back to work with my friend, so I stayed athome during the day and went out at night looking for food.I thought if I could find some, my mother would not have tobuy it for us. I looked in garbage cans for many months andsometimes found part of a banana or some chicken piecesbut never very much. Así es. That's the way it is.

Everywhere you go in Cuba there are signs that say Nohay racismo aquí [There is no racism here] and Somos uno[We are one]. These are lies. I kept looking for food at night,and in January [now 1980] I fell asleep in a doorway justbefore dawn. I woke up when the police kicked me, andonce again they took me to jail. They called me a vagabundo[bum] and looked up my file. This was the second time, andthey knew it. I was shaking.

They told me I could join the army and go to Angolato fight with other negros, or I could go to prison. This wasnot a hard choice for me. Go somewhere and die, or stayhere and hope to see my mother again? I chose prison, andthey laughed and said I would be sorry. They put me in jailand gave me a trial. I was convicted of violating the lawagainst being unemployed, and my sentence was five yearsin prison.

A few weeks later, they took me from the jail in Havanato Melena II [a prison in Havana province]. Nobody herebelieves me, but there are almost a thousand prisons in mycountry. [Many observers of Cuba have described the prisonsystem of that small island as a gulag consisting of hundredsof prisons.] I was thrown into a cell with other negros, andthe sergeant could not stop staring at me. He frightened mewith his looks.

There were no beds and no sheets, so I slept on the floorwith the other men. The toilet was a hole in the floor, andit overflowed every day. At night the rats and roaches camethrough it, and sometimes a snake. Our food was beansonce a day, and it was always filled with insects and worms.We got a pail of water every other day; it was for drinking,but it was so dirty it made us sick.

After I had been there for a week, the sergeant calledfor me one night. I wondered if I was being released to goto my mother, but that was not it. In his private office, thesergeant told me he had never seen a Cuban so black, and hewanted to know if my penis was as black as my face. Whilehe pointed his gun at me, I let my pants fall. He picked upmy private parts and held them in his hands and said, Holapendejo negro, cómo está? Hello, black dumbass. How areyou? After that he squeezed my testicles, tied me to a chair,and said he had some surgery to perform.

For several hours after that, he pulled out all my pubichairs with tweezers, laughing and saying he was soon to betransferred to another prison and he wanted a souvenir ofthe blackest Cuban he had ever seen. When it was over, hepoured liquor on my crotch, told me to get my clothes, andshoved me all the way back to my cell. I tried to tell the othermen what had happened, but I could not speak.

I don't remember the next days and weeks, but I musthave stayed in the cell. After I was myself again, I thought ofmy mother all the time and wondered if I could escape. Theothers told me I would be killed if I tried. My father cameto me in dreams at night and told me to be strong.

Many months and many guards went by. All of themwould stare at me, and most of them would call me negroazul [bluish-black negro, referring to the deep hue of hisskin] and have a look at my penis. I was very thin by then,and it was easy for them to pull down my pants.

On my twentieth birthday, I did not want to liveanymore, and I decided to go on a hunger strike. Mycompanions told me to wait, because they had heard thatthings were loosening up on the outside and Fidel was lettingYanquis in to look around and letting some Cubans leave.But things were so bad for us inside that I started refusingthe crap they gave us to eat.

But after a week, there was a miracle. The sergeant wokeus up one night and said that if we wanted to leave Cuba,there were buses waiting to take us to the port of Mariel.We all began to dance and cry and let ourselves be shovedand kicked onto the bus. The guards told us to shut up, sowe rode in silence.