Immigration Update: October 2022

October revealed unprecedented shifts in size, direction, and composition of migration in our Hemisphere. Mirroring record-high levels of mobility and displacement across the globe, the number of migrant encounters along the southern U.S. border in FY22 set a stunning new mark of 2.4 million. These new dynamics, and the failed response of individual nation-states to manage these flows in a humane and orderly way, highlight the imperative of building new approaches to coordinating regional and global strategies.

In the United States, these compounding pressures and regional failures have led the federal government to, on the one hand, pursue new creative approaches to expand legal channels, and on the other, revert to short-term tactics that will neither solve the challenges nor reduce human suffering. Polarized immigration politics deepen this tension between new strategies and magical thinking, rendering common-sense legislative solutions more intractable. Decades of Congressional dysfunction will come to a head again this month when pressure grows for a bipartisan solution for Dreamers, farmworkers, TPS holders, and the border. Please read through this month’s update for additional reflections on:

• Record levels of human mobility and displacement highlight the urgent need for global solutions

• Launch of Venezuelan Parole Program and expansion of Title 42 present chaotic challenges for Venezuelan migrants in-transit and at the border

• Ramos v. Mayorkas negotiations collapse, jeopardizing TPS extensions for El Salvador, Nicaragua, Honduras, and Nepal.

Hemispheric Migration Challenges Require New Solutions

In the first week of October, Customs and Border Protection (CBP) released data indicating the number of migrant encounters along the Southern border had reached a record 2.4 million in FY2022. This massive surge in encounters has created obvious and immediate operational hurdles on the ground. The capacity to humanely process and manage this volume of arrivals requires infrastructure and personnel deployed well beyond current levels.

But the changing demographic profile of arriving migrants also creates new challenges. Single males from Mexico and Northern Central America have historically dominated border crossing demographics. That, in turn, has informed contemporary border enforcement policies and processing tactics. In the last decade, the numbers of families and unaccompanied children arriving skyrocketed, challenging the efficacy of detention and deterrence policies designed for single men. CBP data released this month further upends that traditional demographic profile: for the first time in history, the range of nationalities processed at the border included more people from Venezuela, Nicaragua, and Cuba overall than they did people from El Salvador, Honduras, and Guatemala.

With nationals now predominating from autocratic governments that have strained or non-existent diplomatic relations with the United States, it is increasingly challenging to expel or deport recent arrivals. And when women and children make up an outsized number of arrivals, prolonged detention can no longer be humanely justified, if it ever could for people fleeing untenable circumstances. The evolving profile of new migrant groups spotlights why strategies must extend beyond our traditional enforcement paradigm premised on a theory of deterrence that was always dubious.

It bears noting that the staggering 2.4 million “encounters” statistic is driven in significant part by migration recidivism, where migrants attempt to cross multiple times after their first expulsion. That high rate of repeat attempts is a function of Title 42’s construct, which involves immediate expulsion to a country that will accept them. Mexico will accept returns of Mexicans and certain other nationals but does nothing to prevent them from attempting to reenter. Although the Trump Administration originally invoked Title 42 under the pretense of managing a public health crisis, it was zealously embraced as a border prevention tool. However, by fueling repeated crossings, this blunt, heavy-handed mechanism to prevent incursions has plainly failed as a deterrent.

The challenges faced by the United States stem from border infrastructure and decades-old policies that are woefully misaligned with today’s shifting migration landscape. Hardened borders and indiscriminate expulsions do not add up to a long-term strategy. Deterrence efforts can help change the calculus of some would be migrants, but only if they are coupled with alternatives like access to economic supports that enable them to remain where they are or new legal channels that provide a safer way to migrate. The time is now for the U.S. government to aggressively build out the strategic hemispheric partnerships that it has begun to cultivate and to develop and implement policies that account for this emerging global reality.

Migrant Encounters between Ports of Entry, by Nationality, FY 2008-22.

Venezuelan Parole Program: Good in Theory; Chaotic, Exclusionary in Practice

On October 12th, the Biden Administration announced the Venezuelan Parole Program, offering a new legal pathway for a small number of Venezuelans to migrate to the United States in a safe and orderly way. To be eligible for the program, the individual must first be privately sponsored by a U.S.-based “supporter” willing to provide housing and other needs for up to two years. And the individual must enter the United States through an airport rather than the U.S.-Mexico border.

The Administration modeled this Venezuelan pilot on the successful Uniting for Ukraine program that has admitted more than 49,000 Ukrainians. And they deserve real credit for innovative initiatives that establish safe, new legal channels to displace irregular chaotic flows. A major expansion of flexible legal pathways must be a central pillar of a new global paradigm for better managing migration.

Unfortunately, in this instance the innovation fails to respond to the scale and composition of current Venezuelan migration flows and does little to improve management of one of the largest migrant crises in the world. More than 7 million Venezuelans have been displaced from their country since 2014 as a result of failed, despotic governance and economic calamity.

The new parole program, however, is capped at 24,000 slots and Venezuelans who have transited through Panama and/or Mexico without authorization are ineligible. As such, this new legal pathway fails to address the massive flows of migrants arriving on foot through Panama’s dangerous Darien Gap. In September alone, the Panamanian government registered 48,204 Venezuelans who had transited the Darien from Colombia, the vast majority of whom were heading for the United States. Not one, however, is eligible for this program.

The ugly flip side to this narrow parole program is an extension of Title 42 to Venezuelans; those who seek to apply for asylum at the southern border are now being expelled to Mexico, where they are confronting a new level of desperation, the absence of all hope. Although we are not responsible for admitting every Venezuelan who makes the dangerous, desperate trek north, we should maintain our international commitment to entertain territorial asylum applications. Indeed, this is exactly what the Administration has argued in federal court as part of its efforts to terminate the Title 42 program. Cognitive dissonance indeed.

Of course, no one country can or should be responsible for admitting every migrant who sets their sights on another nation’s borders. Managing migration in an orderly, humane way requires deep collaboration and a shared commitment by other nations to welcome migrants. That is, in fact, exactly what other governments in the region have done. Colombia alone has absorbed and extended legal status to more than 2 million Venezuelans. Of the 7 million Venezuelan migrants, more than 6 million have resettled in other countries in the region. By contrast, in FY22 only 188,000 have reached our southern border.

Without a bigger parole program more carefully targeted to the current flows, the expansion of Title 42 expulsions to Venezuelans has only resulted in chaos and hardship for the tens of thousands of people stuck enroute and at our southern border. We applaud the Administration for doing groundbreaking work in promoting collaboration and building a stronger infrastructure to better manage migration throughout the hemisphere. This initiative, however, does not meet the standards of a better managed approach.

Keeping Families Together: Settled TPS Holders Stand to Lose More Than Just Legal Status as Ramos v. Mayorkas Negotiations Break Down

Another significant policy challenge surfaced during the last week of October with the collapse of the Ramos v. Mayorkas settlement negotiations. The talks held space for competing notions on ways to protect immigrants living in the United States with Temporary Protected Status (TPS), after a Trump-era decision to terminate TPS protections for certain groups was initiated in 2018.

The breakdown comes after 18 months of attempted mediation between the current Administration and lawyers representing hundreds of thousands of TPS holders, the majority of whom are Central American. According to recent data from USCIS, 241,699 Salvadorans, 76,737 Hondurans, 14,556 Nepalis and 4,250 Nicaraguans were enrolled in the TPS program as of the end of 2021. Absent court intervention, these individuals are now all at risk of losing the legal status most have held for many years as respective designations are set to wind-down by December and expire in 2023.

The legal status afforded by TPS is not all these individuals stand to lose, however. Program termination would also directly affect several hundred thousand U.S.-born children of TPS holders, effectively tearing apart a significant number of settled, mixed-status families — many of which have been contributing to America’s progress for over two decades.

The collapse of the Ramos negotiations, as well as the chaos unleashed by the new Venezuelan migrant policies, serve as stark reminders of the profound human impact of our failed immigration policies and the absence of a global commitment to better manage migration. After the election, we will be fighting to overcome some of our domestic immigration failures as we make a full court press to enact overdue legislation protecting Dreamers and Farmworkers. Please stay tuned to future updates for ways in which you can join us in those efforts.

In solidarity,

Marshall Fitz
Managing Director of Immigration