Within hours after taking office on Jan. 20, 2025, U.S. President Donald Trump signed an omnibus executive order revoking 78 executive actions by the previous administration, dating back to 2021. Among them, President Trump rescinded two Presidential Memoranda regarding Cuba that were issued on Jan. 14, 2025, just after then-President Joe Biden announced last-minute plans to relax sanctions on Cuba. (See Holland & Knight's previous alert, "U.S. Announces Steps to Ease Cuba Sanctions," Jan. 15, 2025).
The measures announced by former President Biden on Jan. 14, 2025, included 1) removing Cuba from the U.S. Department of State's State Sponsors of Terrorism list, 2) issuing a waiver for Title III of the Helms-Burton Act (Libertad Act) and 3) rescinding the 2017 National Security Presidential Memorandum 5 on Cuba policy to eliminate the so-called "restricted list," thereby lifting additional related limitations on engagement by U.S. persons and entities with Cuban persons and entities, beyond what is set forth under U.S. law. Former President Biden expressed that these actions were "necessary to the national interest of the United States" and would "expedite a transition to democracy in Cuba."
In what appeared to be an attempt to roll back many of the sanctions imposed by President Trump during his first term in office, these measures also served as a "gesture of good will" to support a deal brokered by the Catholic Church and the government of Cuba. The agreement involved the Cuban government's "gradual" release of 553 political prisoners, many of whom were facing prison sentences of up to 30 years, including those imprisoned following the unprecedented anti-government riots on the island in 2021. The Cuban government began releasing political prisoners on Jan. 15, 2025, and by Jan. 21, 2025, it had released approximately 150 wrongfully detained protesters. It is unclear whether the releases will continue following the recent actions taken by the Trump Administration.
Cuba's Reinstatement as a State Sponsor of Terrorism
Among the measures announced by former President Biden last week, President Trump's sweeping executive order revoked two such measures: 1) one that certified Cuba's removal from the State Sponsors of Terrorism list and 2) another that rescinded the National Security Presidential Memorandum 5. Cuban President Miguel Diaz-Canel criticized the move as an act of mockery and abuse.1
President Trump's recent executive order in effect designates Cuba once again as a state sponsor of terrorism, which President Trump had done at the end of his first term in 2021. Cuban officials have long advocated for removal of the designation, which has resulted in strict economic sanctions, compounding the effects of a U.S. embargo that has persisted for more than 60 years. Former President Barack Obama lifted the designation in 2015, but it was reimposed by President Trump in January of 2021.
President Trump's rationale for reversing the Biden Administration's reprieve is not explicitly stated, though multiple Republicans have argued that the removal of Cuba's designation as a State Sponsor of Terrorism was inadequately justified. During his U.S. Senate confirmation hearing, now-U.S. Secretary of State Marco Rubio expressed that he had no doubts Cuba met the criteria for inclusion on the State Sponsors of Terrorism list. He indicated that the administration intended to reverse the removal of Cuba from the list and reimpose other restrictions on the island.
Revival of "Restricted List"
In addition to reclassifying Cuba as a State Sponsor of Terrorism, the executive order reverses former President Biden's plans to alleviate economic pressure on Cuba by rescinding the National Security Presidential Memorandum 5. Issued on June 16, 2017, the memorandum laid the foundation for many sanctions imposed or reinforced during President Trump's first term.
The executive order thereby revives the "restricted list" created during President Trump's first term, which restricted U.S. persons and entities from conducting certain financial transactions with certain Cuban entities, including entities controlled by the Cuban military and its commercial conglomerate, Grupo de Administración Empresarial S.A. (GAESA). Namely, the memorandum prohibits U.S. persons and entities from engaging in direct financial transactions with entities on this restricted list. The revival of this memorandum effectively reinstates these restrictions.
Suspension of Property Claims Under Title III of the Helms-Burton Act
Notably, President Trump's recent actions do not appear to rescind former President Biden's notice of waiver of Title III of the Helms-Burton Act, also known as the Libertad Act. Last week, former President Biden announced a six-month waiver for Title III, temporarily suspending the ability of individuals to file lawsuits in U.S. courts regarding claims to potentially confiscated property in Cuba. Since its enactment by former President Bill Clinton in 1996, every U.S. president has opted to suspend this provision until President Trump lifted the suspension in 2019.
The Libertad Act establishes a private right of action for U.S. nationals against non-U.S. entities that traffic in property confiscated by the Castro regime following the Cuban revolution. It allows U.S. citizens and companies to seek damages from entities benefiting from such property seized by the Cuban government without compensation.
Pursuant to Section 6085(c) of the Libertad Act,2 the president may suspend the right to bring an action regarding confiscated property for up to six months, provided that a written report is submitted to the appropriate congressional committees at least 15 days before the suspension takes effect, stating that such suspension is necessary to the national interest of the U.S., and will expedite a transition to democracy in Cuba. Accordingly, former President Biden sent a "Letter to the Chairmen and Chair of Certain Congressional Committees on the Suspension of the Right to Bring an Action Under Title III of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996," on Jan. 14, 2025.
However, as of the date of this alert, it remains unclear whether President Trump intends to rescind any of former President Biden's actions in regard to suspending Title III claims. Under Section 6085(d) of the Libertad Act, the president may rescind any such suspension by reporting to the appropriate congressional committees that doing so will expedite a transition to democracy in Cuba. Therefore, unless President Trump acts to notify Congress of his rescission, the current suspension will take effect on Jan. 29, 2025. Notwithstanding, should the suspension take effect, President Trump may rescind the suspension at any time. In any event, according to Section 6085(c)(3) of the Libertad Act, the suspension of new Title III claims does not affect any pending lawsuits commenced before Jan. 29, 2025, which should continue as if the suspension had not occurred.
Looking Forward
During his prior administration, President Trump rolled back several Obama-era initiatives that eased Cuban sanctions. For instance, President Trump restricted or eliminated 1) authorizations for banks subject to U.S. jurisdiction to process pass-through or "U-turn" transactions facilitating third-country commerce, 2) certain types of remittances to Cuba and 3) specific types of travel by Americans to Cuba, including banning certain group tours and cruise ship stops.
As anticipated, and consistent with his first term in office, President Trump seems to be reaffirming his prior policies on Cuba. He appointed Marco Rubio, the son of immigrants from Cuba and a vocal critic of the Cuban government, as the U.S. Secretary of State. Rubio was personally involved in shaping some of the policies that former President Biden later sought to reverse, in particular, sanctions against the Cuban military.
Looking ahead, persons subject to U.S. jurisdiction (including U.S. financial institutions and other U.S. persons that conduct business with a nexus to Cuba) should closely monitor developments associated with the Cuba sanctions regime, as they are expected to be highly dynamic during President Trump's second term. Additionally, developments concerning the temporary waiver issued by former President Biden under Title III of the Libertad Act should be closely monitored, which, as previously noted, appears to remain unaffected by President Trump's recent actions.
Holland & Knight Cuba Action Team
Holland & Knight's Cuba Action Team has dealt with Cuba-related issues for more than 20 years. The Cuba Action Team includes a number of lawyers from our robust Latin America Practice, International Trade Practice and our Financial Services Practice. We have extensive experience assisting a wide range of U.S. and non-U.S. clients on Cuban trade embargo issues across diverse industries, including airlines, shipping lines, hotels, heavy equipment distributors, insurers, agricultural, and pharmaceutical companies and organizations. In addition, Holland & Knight has a Cuban licensed/trained lawyer.
Notes
1 "Donald Trump Revokes the Removal of Cuba from the List of State Sponsors of Terrorism," Granma, Jan. 20, 2025.
2 22 U.S.C. 69A
