As we begin to transition to a new Congress, immigration advocates and analysts on both sides of the aisle are assessing what immigration actions the Biden administration might use to help Venezuelan refugees not covered by TPS and P4V policies and still be politically viable in the lame duck session and in a future narrowly divided political environment. During critical periods like this when there are a myriad of important issues competing for attention, lower profile issues are at risk of being forgotten. One of the most recent of these has to do with refugees inadvertently left out by recent protectionary measures: Venezuelan refugees who are not covered by either Temporary Protective Status (TPS) or the Process for Venezuelans (P4V) announced in October.
As we will see, the Venezuelans refugees who fall into the “gap” between these two programs are important not only because their humanitarian needs are on par with those of their counterparts who qualify for either program, but also because the arbitrary nature of their exclusion undermines the coherence of the Biden administration’s strategy to deal with Venezuelan migration to the southern border.
Who is covered by TPS?
TPS is offered to foreigners in the United States whose home countries are designated by the Department of Homeland Security as too dangerous to return to. The status protects these immigrants from removal proceedings and grants them the ability to apply for work authorization for a period of time. DHS re-designated Venezuela for TPS in September of this year, allowing Venezuelans continuously physically present in the U.S. since early March 2021 to register (or re-register) for the program.
According to the latest available data, there were over 94,000 approved Venezuelan TPS applications in fiscal year 2022 and 135,000 still pending. That means Venezuelans face by far the largest backlog for TPS countries, 40,000 ahead of second-place Haiti, and dwarfing the remaining top three for FY 2022.
And there may be more to come: DHS estimates that altogether there are roughly 343,000 Venezuelans eligible for TPS currently in the country.
Who is covered by P4V?
While TPS has been the primary administrative response for Venezuelans already in the United States, the Biden administration announced the Parole Process for Venezuelans in mid-October in response to the growing number of Venezuelan refugee and migrant arrivals at the southern border.
Modeled on a similar program for Ukrainians, this program is capped at 24,000 beneficiaries and excludes Venezuelans currently residing in the United States, as well as those who have been removed from the U.S. within the past five years or who have crossed through Mexico, Panama, or the U.S. without authorization after October 18, 2022.
Who is left out?
While both of these measures are welcome, taken together they have the unintended consequence of creating a “gap” for eligibility between the programs.
Venezuelan asylees who arrived after the March 9, 2021, continuous physical presence date for TPS but before the October 18, 2022, P4V eligibility date have limited options for protection or work authorization. Prospects for asylees waiting to have their claims expeditiously heard in court are dim. There is a significant backlog for asylum hearings, with an average wait time of 1,621 days. In FY 2022, only 1,960 Venezuelans received an asylum hearing. That 77 percent of these hearings resulted in asylum being granted is a good indicator that many of those waiting have valid claims.
It is difficult to estimate how many people are currently stuck in this gap. One method is to look at CBP Nationwide Encounter numbers and exclude Title 42 encounters, which result in expulsion based on purported Covid-19 related risks. Counting only Title 8 encounters — those that can be considered routine enforcement actions based on suspicion of illegal entry — and excluding the months of March 2021 and September 2022 entirely places the number of these encounters at 199,155.
This calculation is imperfect because the Title 8 encounter data does not specify how many people are let past, but this should give us a ballpark figure. The latest numbers indicate that roughly 83 percent of Title 8 encounters in FY 2022 were apprehensions, which entails temporary physical control or detainment. Those detained may be held in detention facilities or released pending the outcome of their asylum cases. The remaining 17 percent of encounters were deemed “inadmissible,” meaning they were turned back to their last country of transit. Given the considerable number of unknown variables any estimate will inevitably include a high degree of speculation, but with this breakdown it can be reasonably assumed that around 165,000 Venezuelans fall in between the eligibility requirements for TPS and P4V.
What could the Biden administration do?
One option to address this discrepancy is to redesignate Venezuelan refugees for TPS and amend the continuous presence date to align with the announcement date of P4V. This would make the bifurcation between these two programs more clear. The redesignation, paired with an increase in the parole cap, could communicate that asylees from Venezuela who arrived prior to the P4V announcement will be given a fair hearing and will be afforded protection as they wait to be able to do so while underscoring that P4V is far and away a better option for Venezuelans seeking relief in the United States than making the perilous journey to the southern border.
Refugee policy is often arbitrary, inconsistent, and opaque. The Biden administration should act to ensure that the potentially hundreds of thousands of Venezuelans refugees not covered by TPS and P4V who have suffered the same indignities as their eligible counterparts are not denied equal measures of relief.
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