US: Temporary Protection for Venezuelans

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(Washington, DC) – The United States government took a positive step on March 9, 2021, by granting temporary protected status (TPS) for Venezuelans in the United States, but appears to have excluded Venezuelan asylum seekers stranded in Mexico, Human Rights Watch said today.

The administration of US President Joe Biden is limiting TPS eligibility to Venezuelan nationals and habitual residents who, as of March 8, were “physically present” in the United States. As a result, many Venezuelans who were summarily expelled at the US border or sent to Mexico to await the processing of their asylum claims in US immigration courts under the administration of former President Donald Trump appear not to qualify for this protection.

“The Biden administration should end summary expulsions at the US border and establish a waiver to the TPS physical presence requirement so that Venezuelan asylum seekers who were prevented from entering the United States will also be eligible,” said Bill Frelick, refugee and migrant rights director at Human Rights Watch. “Venezuelans stuck in Mexico because of rights-denying Trump-era policies should not be punished on that account and deserve the same protection as those who managed to enter.”

The 18-month US designation of protected status for Venezuelans follows the Colombian government’s landmark announcement of a 10-year temporary protection regime for Venezuelans on February 8.

As of January, US authorities had sent nearly 2,700 Venezuelans with pending asylum claims in US immigration courts to Mexico as part of the Migrant Protection Protocols, also known as “Remain in Mexico.” Additional numbers of Venezuelans are among the 464,000 migrants and asylum seekers summarily expelled without due process under a Centers for Disease Control and Prevention (CDC) order adopted at the Trump White House’s urging over the objections of career public health officials.

A government crackdown in Venezuela has led to thousands of arbitrary arrests, prosecutions of hundreds of civilians by military courts, torture and other abuses of detainees, extrajudicial killings, and short-term enforced disappearances. In 2020, an independent UN Fact-Finding Mission and the Office of the Prosecutor at the International Criminal Court (ICC) found evidence that crimes against humanity may have been committed in Venezuela, although the ICC is still analyzing whether the court can assert jurisdiction.

Venezuela also faces a humanitarian emergency that makes it grossly unprepared to deal with the Covid-19 pandemic, which has added to the burden on the health system and has led to further deterioration in access to basic health care.

The abuses have helped fuel a massive flight from the country. More than 5.4 million Venezuelans – nearly 20 percent of the population – have fled their country in recent years, according to the United Nations. The vast majority are in Latin America or the Caribbean. US Citizenship and Immigration Service estimates that 323,000 Venezuelan nationals in the US will qualify for TPS.

US law provides TPS to prevent nationals and habitual residents of countries temporarily experiencing extraordinary conditions from being returned to those countries if they are not able to return in safety. Unlike asylum, which puts a person on a pathway to permanent protection, Temporary Protected Status does not require a person to establish a well-founded fear of being persecuted. Instead, it designates members of a nationality group for protection because they cannot return in safety due to generalized, temporary conditions in their home country.

On February 8, Colombian President Ivan Duque announced temporary protection for an estimated 1.7 million Venezuelans living in Colombia, including roughly one million who are in irregular migratory status. The temporary protection regime, passed by decree on March 1, grants Venezuelans 10 years of legal status and remains open to Venezuelans who enter Colombia legally over the course of the next 2 years.

Human Rights Watch has long advocated region-wide temporary protection that would grant all Venezuelans legal status for a fixed period, at least until decisions are issued on their individual claims for protection. Human Rights Watch first called on the United States to grant TPS to Venezuelans in March 2019.

In February 2020, Human Rights Watch reported on arbitrary deportations of Venezuelans from Trinidad and Tobago, including asylum seekers and children. In October 2020, Human Rights Watch reported on Venezuelan authorities’ abusive treatment of approximately 130,000 of its citizens who had returned from other countries in the region.

“Other countries in Latin America and the Caribbean should follow Colombia’s lead and provide broad-based protection for Venezuelans,” said José Miguel Vivanco, Americas director at Human Rights Watch. “Conditions in Venezuela remain unsafe and no one should be compelled to return against their will.”