The administration’s authority to return illegal crossers to Mexico depends on Title 42 — which it intends to terminate.
The Border Patrol has seen a dramatic increase in illegal crossings by Venezuelan migrants in the last two years; it has surged recently to around 25,000 in August and 33,000 in September.
On Oct. 12, DHS announced a program to discourage Venezuelans from entering the United States illegally. The program will provide a safe and lawful way for 24,000 qualifying Venezuelans to enter the United States at an airport, reside temporarily, and apply for work authorization. To be eligible, they must:
Also, effective immediately, Venezuelans who make illegal crossings between ports of entry will be returned to Mexico.
The administration needs permission from the Mexican government to return illegal crossers to Mexico.
In return for Mexico’s cooperation, the administration has agreed to increase the number of temporary nonagricultural worker H-2B visas from 66,000 to 130,716 for fiscal 2023. These visas provide workers for American businesses in industries such as hospitality and tourism, landscaping, and seafood processing.
Historically, around 90 percent of the H-2B visas have been given to Mexican nationals.
The United States also will give $376 million in additional humanitarian assistance to people affected by the Venezuela regional crisis, and give more than $199 million in additional humanitarian assistance to Mexico and Central America.
This program is “intended to address the most acute irregular migration and help ease pressure on the cities and states receiving these individuals.” According to DHS Secretary Alejandro Mayorkas, “These actions make clear that there is a lawful and orderly way for Venezuelans to enter the United States, and lawful entry is the only way.”
Limited in scope and temporary at best
Carlos Vecchio, an international spokesman for reinstating democracy in Venezuela, has said that an offer of 24,000 visas is insufficient for the magnitude of Venezuela’s migration crisis. According to UNHCR statistics, more than 6 million Venezuelans have fled from Venezuela, which makes their situation the second-largest external displacement crisis in the world.
Also note that the administration is only saying it will try to stop illegal crossings made by Venezuelans and that the program’s only enforcement measure for achieving that objective is returning Venezuelans who make an illegal crossing to Mexico.
The administration’s authority to return illegal crossers to Mexico depends on Title 42 — which it intends to terminate.
In a media statement released on April 1, the CDC said:
“After considering current public health conditions and an increased availability of tools to fight COVID-19 (such as highly effective vaccines and therapeutics), the CDC Director has determined that an Order suspending the right to introduce migrants into the United States is no longer necessary.”
A federal court judge issued a preliminary injunction blocking the termination of Title 42 because CDC did not follow proper procedures. Of course, this can be corrected the next time the administration tries to terminate Title 42 — probably after the upcoming midterm elections. Biden said during a recent 60 Minutes interview that, “The pandemic is over.”
But it can still effective as a border security measure, even if temporary.
Many Democrats will likely find new measure objectionable
Humanitarian organizations, such as Doctors Without Borders claim that expulsions to Mexico under Title 42 should not be permitted. The group’s executive director said, “We are shocked by the Biden administration’s decision to start expelling Venezuelans under Title 42, a cruel and inhumane policy that has no basis in safeguarding public health that should have been ended long ago.”
According to the Congressional Progressive Caucus, “The Trump-initiated Title 42 was part of his anti-immigrant hate and fear agenda that used the pandemic as an excuse to deny asylum seekers their legal rights.”
Bad policy even if it were long term
Practically speaking, how will the Border Patrol know which illegal crossers are Venezuelan? If illegal border crossers do not admit that they are Venezuelans and the Border Patrol does not find documents on them that identify them as Venezuelans, it may not be possible to determine their nationalities.
What’s more, prior to the Oct. 12 announcement, there were few Title 42 expulsions of Venezuelans. Between April 2020 and March 2022, 60 percent of the nearly 1.8 million migrants who were expelled under Title 42 were from Mexico and 34 percent were from the Northern Triangle.
And 88 percent of the expulsions were of single adults. Only 11 percent were family units.
But Title 42 expulsions aren’t the whole story.
In a report released on Sept. 13, the DHS Inspector General concluded that other than migrants who are expelled under the Title 42 order, the administration is only denying entry to a very small percentage of the illegal crossers apprehended at the Southwest border. The rest are being released into the country after a 72-hour screening at overcrowded Border Patrol holding facilities.
If the administration really wanted to reduce illegal crossings, it would stop releasing so many illegal crossers into the country. That practice is a magnet that draws migrants from all over the world.
Former immigration judge and former acting chief of the INS national security law division Andrew R. Arthur says that the Biden administration disclosures in the Biden v. Texas case indicate that the Biden administration already has released more than 1 million illegal crossers into the country — a population larger than the number of residents in the president’s home state of Delaware.
When the Title 42 order is withdrawn, which is likely to happen in the near future, the expulsions of Venezuelans will end, but the United States will still have to provide the extra H-2B visas and the promised financial assistance.
That’s a big price to pay for temporarily preventing a surge of migrants from one country.
Why this — why now?
According to a recent PEW Research Center poll, 73 percent of Americans think that increasing security along the U.S.-Mexico border to reduce illegal crossings should be a very (44 percent) or somewhat (29 percent) important goal of U.S. immigration policy.
Given all of the above, I can’t help but wonder if this new policy on Venezuelan crossings is more about “optics” leading into the elections next month. Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow himat https://www.blogger.com/blog/posts/2306123393080132994
