Frequently Asked Questions
In October, the Biden administration announced a narrow program to facilitate U.S. entry of Venezuelans in need of protection. Concurrently, the administration and the Mexican government reached an agreement for Mexico to receive expelled Venezuelans. Importantly, this means a dramatic expansion of the Title 42 expulsions program, which amounts to an asylum ban at the southern border. Venezuelans, currently among the top nationalities arriving at the U.S. border, were previously excluded from the Title 42 policy because Venezuela does not accept removals from the United States. In effect, this new program fails to protect most Venezuelans seeking asylum and has already resulted in thousands of Venezuelans expelled to Mexico.
This FAQ addresses the following questions:
- What is Title 42?
- How did the Biden administration come to expand Title 42?
- What is the Venezuelan parole program?
- The Biden administration claims the Venezuelan parole program is modeled after its “Uniting for Ukraine” program. Is that a fair comparison?
- What is the impact of outsourcing asylum obligations onto the United States’ southern neighbors?
1. What is Title 42?
Section 265 of the Public Health Service Act, commonly known as “Title 42,” has been used to rapidly expel asylum seekers to Mexico or their country of persecution 2,366,917 times. As shown below, the Biden administration bears the responsibility for the lion’s share of these expulsions.
The repeated use of this public health statute as an immigration enforcement tool is unprecedented in U.S. history and now straddles two presidential administrations. Invented by the Trump administration, Title 42 has become a staple of the Biden administration’s response to asylum seekers — returning asylum seekers to unsafe and deadly conditions.
2. How did the Biden administration come to expand Title 42?
The history of Title 42 is short but tumultuous. As the timeline below explains, the Biden administration has continued, ended, then expanded the policy.
- March 2020: The Trump administration unearthed the decades-old public health statute to shut down all asylum processing at the border. The Trump Title 42 policy hinged on an archaic racist trope that falsely equates migration with contagion.
- January 2021: President Biden took the baton and continued mass expulsions of people seeking protection at the border. Biden officials repeated the same talking points from the Trump era, falsely calling Title 42 a “public health imperative.” Meanwhile, current and former members of the Biden administration had denounced this unprecedented policy as illegal and inhumane, alongside a chorus of public health and medical experts.
- April 2022: The Biden administration finally announced plans to end Title 42 expulsions, citing increased understanding of the virus and widespread availability of vaccines, treatment, and masking among other mitigating measures. With this announcement, the Biden administration dropped all pretense that Title 42 served public health goals.
- May 2022: Following a lawsuit by anti-immigrant state governments, the Biden administration was enjoined from ending Title 42. With limited exceptions for unaccompanied children and those who meet discretionary exemptions, this injunction has resulted in continued mass expulsions of people seeking protection at U.S. land borders.
- July 2022: Several members of Congress proposed to halt the termination of Title 42 through legislation that would keep it in place indefinitely. No longer citing public health as the rationale, these legislators rebranded Title 42 as a border management tool, despite overwhelming evidence that Title 42 fuels repeated crossings by individuals and misleadingly inflates apprehension numbers at the border.
- October 2022: Under the guise of a new parole program for Venezuelans, the Biden administration announced that it brokered a deal with the government of Mexico to receive expelled Venezuelans and dramatically expanded the use of Title 42 — now rebranded rebranded as a deterrence program, adding to the toolkit of abusive deterrence programs employed by this administration. As explained further below, this framework also signals a new phase, where Title 42 joins the ever-expanding web of U.S. policies which ban access to asylum and externalize the U.S. government’s human rights obligations at the U.S. border.
3. What is the Venezuelan parole program?
This new program would allow 24,000 Venezuelans to apply for entry (or “parole”) to the United States from Venezuela. Eligible individuals must already have or be able to afford to buy a passport and fly at their own expense, rather than enter at the U.S.-Mexico border. They also must have a “supporter” in the United States who agrees to provide housing and other basic needs for up to two years. Applicants have to comply with national security and public health vetting (including vaccines for COVID-19, measles, and polio) and demonstrate a significant public benefit or urgent humanitarian reasons to warrant a discretionary grant from the U.S. government. This program was outlined in a federal register notice and became effective on October 19, 2022. Despite the significant implications of this announcement, this notice is not open to public comments.
Importantly, the program excludes more than it protects. Anyone who applies after the 24,000-person cap is reached will be subject to removal or expulsion. Those who seek entry by land to exercise their lawful right to seek asylum are also subject to removal or expulsion. The program also excludes anyone who travels without authorization through Panama or Mexico, en route to seeking protection at the U.S. border — again blatantly violating U.S. and international refugee law. The International Organization for Migration (IOM), the UN Refugee Agency (UNHCR) and the United Nations Children’s Fund (UNICEF) have already expressed deep concern and reiterated their call to end, not expand, Title 42.
4. The Biden administration claims the Venezuelan parole program is modeled after its “Uniting for Ukraine” program. Is that a fair comparison?
No. Uniting for Ukraine (U4U) is distinct for at least three reasons:
- U4U was created as a humanitarian response to the war in Ukraine, while the Venezuelan parole program is all about deterrence. The administration’s descriptions and rhetoric about the program did not in any way involve border security or management, instead focusing on helping Ukrainians to seek safe entry to the United States from wherever they are in the world. In sharp contrast, the Venezuelan program is framed as a deterrence (not humanitarian) response to the “increasing number” of Venezuelans crossing the U.S.-Mexico border and the challenges posed by so-called “irregular migration.” This program bars anyone who travels without authorization through Panama or Mexico to seek protection in the United States after October 19, even though many Venezuelans struggle to secure a passport or visa. The Federal Register notice explicitly refers to the expulsion or removal of Venezuelan asylum seekers as a “consequence” for their attempt to seek safety, situating the program in the United States’ decades-old “prevention through deterrence” approach to border management which has proven both deadly and ineffective.
- U4U has no cap or sunset timeline on the number of people who can benefit. It has been used to help fulfill President Biden’s promise to provide refuge to at least 100,000 Ukrainians — but does not set a limit. In contrast, the Venezuelan parole program is capped at 24,000, a shamefully small figure given that the current situation in Venezuela has resulted in the second-largest external displacement crisis after Syria. In September alone, the Panamanian government reported over 48,000 Venezuelans, including nearly 7,000 children crossed the nation while heading north. Far from opening a new safe pathway, this program is designed to exclude the vast majority of Venezuelans at the height of a refugee crisis that has displaced millions.
- The Venezuelan program wields not just one, but two policies to punish Venezuelans seeking protection. Citing the need for “consequence delivery,” the Biden administration’s description of the program in the Federal Register notice makes clear that even when the Title 42 program ends, it intends to ramp up its use of expedited removal for Venezuelans, which would bar asylum seekers from entering for five years. The notice points to the treatment of Guatemalan and Honduran asylum seekers (who are subjected to both expulsions and expedited removal) as an example for the Venezuelan program. In other words, the Biden administration doubled down on the use of Title 42 while charting the path for removals should expulsions end.
5. What is the impact of outsourcing asylum obligations onto the United States’ southern neighbors?
The expansion of Title 42 confirms a troubling trend towards externalizing obligations under domestic and international law to process asylum seekers. The Federal Register notice cites the cooperation of the Mexican government “and potentially other governments” and conditions the program’s implementation on Mexico accepting expelled or removed Venezuelans. Additionally, the United States signals that crossing borders far outside the United States (in Panama and Mexico) renders individuals ineligible for the parole program. Effectively, this approach moves the U.S. border south and deputizes other nations to receive asylum seekers whom the U.S. expels and deports. This approach may also preface subjecting other nationalities (such as Cubans and Nicaraguans) to summary expulsions or removal.
Importantly, this is not the first time the Biden administration has tried to push back Venezuelans far beyond the U.S. border. Nearly a year ago, the U.S. government successfully pressured Mexico to impose a visa requirement on Venezuelans arriving in the country by air, in order to lessen the number of people seeking asylum at the U.S. border. This forced most to undertake a dangerous journey on foot across the Darién Gap. With its newest announcement, the Biden administration now punishes Venezuelans for arriving by land, though that is the only means most have to seek asylum. Protecting a fraction of displaced Venezuelans either forces asylum seekers to stay and apply for parole in a country where they are in danger of persecution, or face harassment by authorities and insecurity in Mexico as they are pushed south of the United States.
NIJC calls on the Biden administration to do everything in its power to halt, not expand, the Title 42 asylum ban, and to ensure that all migrants arriving at U.S. borders have access to protection.
Azadeh Erfani is a policy analyst at NIJC.