In expanding Title 42 to include Venezuelans, advocates say the Biden administration has taken on a new level of ownership over the Trump-era policy that blocks migrants from seeking asylum.
The Department of Homeland Security (DHS) last week announced it would use Title 42 to turn away Venezuelans that present at the border, nixing asylum for a nationality that has become one of the largest populations to seek refuge in the U.S. following years of instability in that country.
“The Biden administration is embracing the Trump playbook,” Eleanor Acer, director of refugee protection at Human Rights First, told The Hill.
“To the extent that this is some kind of effort to have political talking points that are useful over the next few months, compromising principle in an effort to appease anti-immigrant voices is politically detrimental. Sacrificing principle for perceived political reasons is a reflection of character at the end of the day. And it typically undermines the administration’s credibility.”
The move is the latest chapter in the administration’s complex relationship with a policy crafted under its predecessor. The Biden administration has used Title 42 extensively, struggling with its messaging on the policy before rescinding it in April.
Now, as the administration battles GOP-led states who won an initial court battle blocking the rescission, they’ve used the policy anew, vowing to take in 24,000 Venezuelans through a separate program while immediately expelling any others that travel to the U.S.
The use of Title 42 to carry out the expulsions comes just a month after the administration highlighted the number of Venezuelans, Cubans, and Nicaraguans coming to the border, noting that people from the trio of countries are fleeing “failing communist regimes… [and] driving a new wave of migration.”
In August, arrivals from the three countries accounted for a third of border encounters.
“We are weeks from an election and the numbers of Venezuelans arriving at the southern border is spiking. This is clearly an effort to try to drive those numbers down for the sake of creating some sort of political cover on issues relating to the border before the election,” said Jorge Loweree, managing director of programs and strategy at the American Immigration Council.
Title 42 was capitalized on by former President Trump early in the pandemic, when the Centers for Disease Control and Prevention (CDC) used the COVID-19 outbreak to effectively shut the border to asylum-seekers by using the public health law.
But it’s been a steady feature of the Biden administration, which, while rolling back other Trump immigration policies, left Title 42 to be handled by the CDC, saying little else to condemn the policy until DHS Secretary Alejandro Mayorkas reversed course in September of last year.
“We are doing this out of a public health need. It is not an immigration policy. It is not an immigration policy that we would embrace,” he said that month at a White House press conference.
Absent in DHS’s rollout of expansion of Title 42 was any reference to public health or the CDC.
“The sort of health rationale that was and continues to be the basis for the program — it’s completely laughable now, right? There’s no reference to the health rationale in any of the materials that the administration has put out about the extension of Title 42 to Venezuelans, not to mention that the president just said the pandemic is over,” Loweree said.
Many advocates fear the effect of the policy for those seeking to leave a country where roughly a quarter of the population has left over the last six years.
Along with the expansion of Title 42, DHS said it would accept 24,000 Venezuelans through a short-term program that would allow them to come to the U.S. with a two-year work authorization.
“The numbers are just incredibly small when you consider that there are about 1,000 Venezuelans arriving at the southern border every single day. It’s really a few week’s worth of arrivals,” Loweree said.
“We’re in a situation where the administration has made a calculated decision to offer protections to about 24,000 Venezuelans in the near term at the expense of humanitarian protections for all others.”
Those 24,000 will be let into the U.S. through a private sponsorship program, which allows temporary entry for those who can secure a financial sponsor.
“This will undoubtedly and disproportionately impact Venezuelans who do not have close U.S. ties, but who are nonetheless deserving of due process and protection. That their expulsions will be cloaked in public health concerns just weeks after President Biden declared the pandemic ‘over’ is deeply disturbing,” Krish O’Mara Vignarajah, president of the Lutheran Immigration and Refugee Service, said in a release after the policy was announced.
Mexican officials have privately said — but have not publicly confirmed — they will only receive as many Venezuelans expelled by Title 42 as the United States takes in through the new program.
That would mean the Biden administration’s plan to accept 24,000 Venezuelans would be mirrored by Mexico receiving another 24,000, a paltry figure compared to the more than 7 million Venezuelans who’ve left the country fleeing President Nicolás Maduro’s government.
It’s unclear how many Venezuelans are currently in Mexico — only those who were in the country before the program was announced will be eligible to enter the United States — but it’s likely tens of thousands, with more in the pipeline through Central America.
Around 340,000 Venezuelans who had previously arrived in the country were included by the Biden administration in temporary protected status, a federal policy that allows nationals of countries undergoing man-made or natural disasters to work and live in the United States.
That cutoff raised some eyebrows, as it benefits richer Venezuelans who were able to escape the Maduro government earlier, often at the expense of poorer Venezuelans who either had to endure or leave the country by foot.
“It’s part of what experts call aporophobia, governments are afraid of poor people,” said Liliana Rodríguez, a Venezuelan lawyer and asylee in the United States who works with the Priestly Fraternity of Saint Dominic and Fe En Venezuela, both Catholic charities.
“The most recent arrivals directly from Venezuela are the very, very poorest of Venezuela, the ones who dare to pass through the Darién Gap just to find a better quality of life,” she added.
DHS did not respond to request for comment for this story.
Speaking to reporters Wednesday, however, the administration cited litigation as its reason for expanding Title 42, though the May court order leaving the policy in place during litigation does not require its expansion.
“We are currently under a court ordered obligation to continue to implement the Title 42 public health order. And so that is what we are doing pursuant to the court’s requirement at this time. Once Title 42 is no longer in place, then we will work with Mexico to ensure that returns are done pursuant to other lawful processes,” a senior DHS official said.
But advocates say the Biden administration’s widespread use of the policy has made it a part of their legacy.
“We’re nearly two years in. So Title 42 has existed and been applied to a far greater number of people under Biden than under Trump,” Loweree said.
“Title 42 is and forever will be a Biden-era policy.”