In abrupt turn, Biden uses Trump-era rule to deny Venezuelans asylum

With a surge of Venezuelan migrants at the U.S.-Mexico border, President Joe Biden is evoking Title 42, a rule first deployed during the pandemic to deny the request of asylum at the border. The move is drawing swift criticism from immigrant advocates. 

First Look

Two years ago, candidate Joe Biden loudly denounced President Donald Trump for immigration policies that inflicted “cruelty and exclusion at every turn,” including toward those fleeing the “brutal” government of socialist Nicolas Maduro in Venezuela.

Now, with increasing numbers of Venezuelans arriving at the U.S.-Mexico border as the Nov. 8 election nears, Mr. Biden has turned to an unlikely source for a solution: his predecessor’s playbook.

Mr. Biden last week invoked a Trump-era rule known as Title 42 – which Mr. Biden’s own Justice Department is fighting in court – to deny Venezuelans fleeing their crisis-torn country the chance to request asylum at the border.

The rule, first invoked by Mr. Trump in 2020, uses emergency public health authority to allow the United States to keep migrants from seeking asylum at the border, based on the need to help prevent the spread of COVID-19.

Under the new Biden administration policy, Venezuelans who walk or swim across America’s southern border will be expelled and any Venezuelan who illegally enters Mexico or Panama will be ineligible to come to the U.S. But as many as 24,000 Venezuelans will be accepted at U.S. airports, similar to how Ukrainians have been admitted since Russia’s invasion in February.

Mexico has insisted that the U.S. admit one Venezuelan on humanitarian parole for each Venezuelan it expels to Mexico, according to a Mexican official who was not authorized to discuss the matter publicly and spoke on condition of anonymity. So if the Biden administration paroles 24,000 Venezuelans to the U.S., Mexico would take no more than 24,000 Venezuelans expelled from the U.S.

The Biden policy marks an abrupt turn for the White House, which just weeks ago was lambasting Florida Gov. Ron DeSantis and Texas Gov. Greg Abbott, both Republicans, for putting Venezuelan migrants “fleeing political persecution” on buses and planes to Democratic strongholds.

“These were children, they were moms, they were fleeing communism,” White House press secretary Karine Jean-Pierre said at the time.

Mr. Biden’s new policy has drawn swift criticism from immigrant advocates, many of them quick to point out the Trump parallels.

“Rather than restore the right to asylum decimated by the Trump administration ... the Biden administration has dangerously embraced the failures of the past and expanded upon them by explicitly enabling expulsions of Venezuelan migrants,” said Jennifer Nagda, policy director of the Young Center for Immigrant Children’s Rights.

The administration says the policy is aimed at ensuring a “lawful and orderly” way for Venezuelans to enter the U.S.

Why the turnaround?

For more than a year after taking office in January 2021, Mr. Biden deferred to the Centers for Disease Control and Prevention, which used its authority to keep in place the Trump-era declaration that a public health risk existed that warranted expedited expulsion of asylum-seekers.

Members of Mr. Biden’s own party and activist groups had expressed skepticism about the public health underpinnings for allowing Title 42 to remain in effect, especially when COVID-19 was spreading more widely within the U.S. than elsewhere.

After months of internal deliberations and preparations, the CDC on April 1 said it would end the public health order and return to normal border processing of migrants, giving them a chance to request asylum in the U.S.

Homeland Security officials braced for a resulting increase in border crossings.

But officials inside and outside the White House were conflicted over ending the authority, believing it effectively kept down the number of people crossing the border illegally, according to senior administration officials.

A court order in May that kept Title 42 in place due to a challenge from Republican state officials was greeted with quiet relief by some in the administration, according to officials who spoke to The Associated Press on condition of anonymity to discuss internal discussions.

The recent increase in migration from Venezuela, sparked by political, social, and economic instability in the country, dashed officials’ hopes that they were finally seeing a lull in the chaos that had defined the border region for the past year.

By August, Venezuelans were the second-largest nationality arriving at the U.S. border after Mexicans. Given that U.S. tensions with Venezuela meant migrants from the country could not be sent back easily, the situation became increasingly difficult to manage.

So an administration that had rejected many Trump-era policies aimed at keeping out migrants, that had worked to make the asylum process easier, and that had increased the number of refugees allowed into the U.S. now turned to Title 42.

It brokered a deal to send the Venezuelans to Mexico, which already had agreed to accept migrants expelled under Title 42 if they are from Guatemala, Honduras, or El Salvador.

All the while, Justice Department lawyers continue to appeal a court decision that has kept Title 42 in place. They are opposing Republican attorneys general from more than 20 states who have argued that Title 42 is “the only safety valve preventing this Administration’s already disastrous border control policies from descending into an unmitigated catastrophe.”

Under Title 42, migrants have been expelled more than 2.3 million times from the U.S. after crossing the country’s land borders illegally from Canada or Mexico, though most try to come through Mexico.

The administration had announced it would stop expelling migrants under Title 42 starting May 23 and go back to detaining and deporting migrants who did not qualify to enter and remain in the U.S. – a longer process that allows migrants to request asylum in the U.S.

“We are extremely disturbed by the apparent acceptance, codification, and expansion of the use of Title 42, an irrelevant health order, as a cornerstone of border policy,” said Thomas Cartwright of Witness at the Border. “One that expunges the legal right to asylum.”

A separate lawsuit from the American Civil Liberties Union also is trying to end Title 42, an effort that could render the administration’s proposal useless.

“People have a right to seek asylum – regardless of where they came from, how they arrive in the United States, and whether or not they have family here,” said ACLU lawyer Lee Gelernt.

This story was reported by The Associated Press. Colleen Long reported from Los Angeles. AP writer Elliot Spagat in San Diego contributed to this report.