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What is Title 42?
Title 42 is a clause of a 1944 Public Health Services Law which allows the U.S. government to prevent the entry into the country of individuals during certain public health emergencies, in this case asylum seekers who are sent to wait out their years of processing in Mexico, not in the United States, during Covid.
But to really understand Title 42 you have to understand what is happening at the southern border and what has happened with asylum claims. At play are potentially millions of aliens flooding into the United States. America’s asylum laws, meant to help the most vulnerable, have instead become a clogged backdoor for routine economic migrants. Title 42 was a very small step by the Trump administration toward restoring asylum to its correct role in American immigration policy. Biden seeks to go back to the “everybody in” system with all the consequences.
Asylum recognizes a person persecuted by his own country can be offered residence and protection by another country. The actual conditions vary considerably across the globe (the U.S. considers female genital mutilation grounds for asylum while in many nations it is a desired practice). But in most cases, asylum is offered to people who face a well-founded fear of persecution if sent home on account of their race, religion, nationality, political opinion, or social group. The definition of those five protected grounds have also varied greatly based on shifts in American domestic politics. Since 1994, for example, LGBT status has been, and remained under Trump, a possible claim to asylum. Domestic violence was granted consideration as grounds under the Obama administration, only to be rolled back under Trump.
But the reality of 2022 is the asylum system evolved into a cheater’s backdoor, a pseudo-legal path to immigration not otherwise available to economic migrants. They lack either the skills for working visas or the ties to qualify for legal immigration under America’s family reunification system. So they walk to the border and ask for asylum, taking advantage of previous administrations’ look-the-other-way “solution” to their ever-growing numbers. Affirmative asylum claims, made at ports of entry, jumped 35 percent pre-Covid.
It worked — for them. A Honduran on the border who says he simply came for a job is sent back almost immediately. However, should he make a claim to asylum, the U.S. is obligated to adjudicate his case. Since detaining asylum seekers and their families while the processes play out is expensive and politically distasteful (kids in cages!) until recently most asylum seekers were instead released into American society to wait out their cases. They then became eligible for work authorization when their cases extended past 150 days. The number of pending cases pre-Covid was 325,277, more than 50 times higher than in 2010.
Eventual asylum approval rates for all nationalities over the past decade average only 28 percent. Yet even after they’re denied, applicants can either refile as defensive asylum claims or disappear into the vast underground of illegals. Simply making a claim to asylum is often enough to live and work in America. Trump tried to change that with Title 42. Basically due to the possibility of flooding the country with Covid-positive asylum seekers, the threat of disease was invoked as a reason/excuse to keep the asylum seekers out of the U.S. while their cases drag on and on. Some asylum seekers and their families were detained at the border as a deterrent rather than released into society. But public outcry over caged families and the massive costs in housing and feeding sent the Trump people looking for another way to implement Title 42.
The change was for the Trump administration to negotiate for asylum seekers to wait out their processing times not in American society or an American detention facility, but in Mexico, through a program called the Migrant Protection Protocols. People at the border make their asylum claims, and are then nudged a step backward to wait for an answer in Mexico. The Department of Homeland Security also established an agreement with Mexico to accept all Venezuelan nationals who cross the border seeking U.S. asylum.
Title 42 stopped some 2.4 million would-be immigrants. The Biden administration now seeks to return to the old pre-Trump system, whereas asylum seekers would generally be set free inside the U.S. to go somewhere and wait out their processing. Nascent implementations of this system fell flat; U.S. Immigration and Customs Enforcement (ICE) estimates they already “lost” 150,000 migrants due to Biden admin’s lack of processing. These people are simply at large and likely forever will be within American society. As David Frum wrote approvingly at the time, “if liberals won’t enforce borders, fascists will.”
Biden’s administration tried to end the Title 42 policy this past April in court, but a Louisiana judge ruled proper administrative protocol must be followed to formally lift the program. Lower courts then issued a stay on ending Title 42 until December 21, extended now by the Supreme Court, and traffic backed up at El Paso and other prominent crossing points. Meanwhile, for those who are crossing now, the expulsion of migrants has continued while the protracted legal battle plays out among the government, migrants represented by the ACLU, and now, a group of 19 GOP-led states seeking to intervene in the case.
The states have argued that they will suffer “irreparable harm” if Title 42 ends and migrants stay in the U.S. for longer periods of time. Between 9,000 and 14,000 people are expected to cross the southern border each day after Title 42 ends (border crossings are now at around 7,000 a day.) The coalition of GOP attorneys general requested the court push back the Dec. 21 end date pending deliberations on an appeal. Migrants are waiting in Mexico, hoping Title 42 will be overturned and they can cross and stay in America. The final decision will likely lie with the Supreme Court.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Venezuela: What Happens in an Evacuation?
Venezuelan President Nicolas Maduro ordered American diplomats to leave his country. The United States refused. What happens next?
Last week in Venezuela opposition lawmaker Juan Guaido declared the current Maduro government illegitimate. President Trump agreed, announcing the U.S. considers Guaido “interim president.” Maduro responded by cutting off diplomatic ties and ordering American diplomats out under a deadline now extended for 30 days. Washington said Maduro’s orders are invalid as he no longer has “legal authority to break diplomatic relations or declare our diplomats persona non grata,” and thus will not withdraw embassy staff. Standoff.
Trapped in the middle of this high-level muscle-tussle are America’s diplomats on the ground in Caracas. Maduro threatened to cut off the electricity and water to the embassy, and more than one person inside State remembers it was 38 years ago last week American diplomatic hostages were finally released by Iran, after government-sponsored “students” took over the American Embassy in Tehran. Will Maduro, who still enjoys the loyalty of the Venezuelan military, harm U.S. diplomats, leading to some sort of military intervention by the U.S.?
Unlikely. Shooting one’s way out of Dodge is used only as the last resort when no one is in charge, and thus there’s no one to negotiate with. Whether it’s Maduro, or Guaido, or some as-yet nameless colonel in the Venezuelan army, that is not the situation in Caracas. It is always safer to talk your way out. That said, such rescue scenarios are part of Marine units’ special operations qualification tests, and are regularly practiced. I participated in three such field exercises and many tabletop versions during my 24 years as an American diplomat.
With the glaring exception of Tehran, diplomatic hostage situations, and evacuations under force are uncommon. Instead, traditions dating back to the Greeks are generally followed. The host country, Venezuela in this case, is always responsible for the safety of diplomats inside its borders. Embassies are special places that while not “sovereign soil,” are inviolable, off-limits to host country law enforcement and military. As such, diplomats’ physical presence is often used to send a message. Things will get tense — the symbolism almost requires them to get tense — but in the end both sides know the boundaries.
The norms were respected throughout the Cold War and beyond. The former U.S. Embassy building in Afghanistan was left largely untouched even as the Taliban swept to victory. Saddam did not take any U.S. diplomats hostage despite two wars, and the old American Embassy in Baghdad was never attacked. The list of all 250 diplomats killed since 1780 has only a handful who lost their lives under direct attack; the majority of deaths were due to disease.
The idea behind this record of general safety is treatment of diplomats affects a country globally, and is reciprocal. A government or militia leader knows his relationship with the United States and all that entails can be affected for decades (see: Iran) if protections are violated. You mess with our people one place, it comes back to bite you in another — playground rules, push and you get pushed back.It’s easy enough to confidently write that now, but it is also easy enough to remember a mob outside the embassy shouting, then hearing glass break, while I hid under my desk wondering if I’d get home that day. The rules are clear, but in the breach will the local cops risk harming their own countrymen to protect you? Did the local cops even show up? Is the strongman, seeking to rally his support, really ready to trade on violating diplomatic tradition?
So while it would be significant step for Maduro to attack the embassy, every embassy plans for just that to happen. Every outpost, including Caracas, has an Emergency Action Plan (EAP). The EAP explains how the embassy will be defended by its local security forces and/or Marine guards, where people will take safe haven, the locations of friendly embassies, and more. In updating the EAP, staff pace off local green spaces to see if they are wide enough for helicopters to land, and find out how much blood local hospitals keep in reserve.
The embassy and Washington will then establish highly classified tripwires for the EAP, agreed upon events to trigger some action. If Maduro does this, we will do that type of things, leading toward an evacuation of all personnel in the extreme.
A critical tripwire to watch in Venezuela is the availability of outbound commercial transportation, the most common assurance of escape. If local infrastructure is compromised (flights canceled, blockades on airport access), the State Department often moves to arrange an evacuation via chartered transportation.
Military options, including non-violent ones like large transport planes, are a last resort. As the State Department advises “Rescue by helicopters [and] armed escorts reflect a Hollywood script more than reality.” I once watched a Secretary of State twist the arm of an airline CEO to get commercial flights to fly uninsured into a beleaguered foreign airport, to avoid using U.S. military planes which would have roiled the local conflict during an evacuation. In the Mid East, the U.S. at some cost negotiated a temporary stop to an artillery attack by a foreign entity to allow commercial barges to enter a harbor in lieu of the U.S. Navy.
The airport outside Caracas is still open. So what’s happening in Venezuela?Most likely following an EAP tripwire, the State Department evacuated dependents and non-essential personnel with a requested local police escort. The evacuation flight was conducted using commercial transportation as an ordered departure. The U.S. is not releasing numbers, but the Washington Post stated there were originally 124 Americans, including 46 family members, at the embassy. A ballpark figure of diplomats still present in Caracas today would be in the dozens.
Even in the most routine evacuations, things go wrong. There are never enough diapers for the inevitable delays. Women go into labor. Pets may have to be left behind. Most evacuations limit how much luggage you can leave with, and a senior person shows up way over the weight set. Serious stuff, too, like a scared soldier at a roadblock who didn’t get the message to allow the Americans to pass. A once-junior diplomat now an ambassador is a minor legend for smoking a pack of cigarettes (he never smoked before) with a group of trigger-happy militia at a checkpoint to calm them enough to allow a convoy of evacuating dependents through.
With only a core staff left, the next big job at the embassy is reducing the amount of classified material just in case the building is attacked. Every embassy is required to know how much classified material is on hand, and how long it would take to destroy it. Say there are three feet of paper in a file drawer, how many hours of shredding would it take for 500 drawers? The whole idea is to destroy the most sensitive materials well-ahead of the threat without tying up the whole staff to do it.
Under the “no double standard” rule, the embassy also notified private American citizens of the dependents’ evacuation. As long as commercial transport is available, citizens are expected to make their own way out of the country, though unlike staff they can’t be ordered to do so. Local-employed staff, Venezuelans, are rarely evacuated. The embassy’s cooks, drivers, and translators are usually left to make their own way in what can be a very dangerous environment for someone seen as an American collaborator. Should it come to it, physical control of the embassy compound is handed over to a locally-contracted security force if possible. Some American is then literally is the last one out, locking the front door behind her.
We’re not anywhere close to that in Caracas.
One path out of crisis would be to use the extended 30 day window Maduro declared for Americans to depart Venezuela to negotiate a downgraded level of relations. The U.S. and Venezuela could continue diplomacy through “interest sections,” de facto embassies for nations with no formal ties. The “diplomats” would be gone, at least in name, while talks continue. This is the most likely outcome unless one side demands a fight.Meanwhile, events continue to happen both on the ground and in Washington. Secretary Pompeo announced $20 million in “humanitarian aid” to somebody in Venezuela, and don’t be surprised if that is eventually funneled through the military. For the short term, the embassy is stocked with food, water, and fuel for the generator, mitigating threats to cut off services. Washington on Saturday fanned the flames, urging the world to “pick a side” in Venezuela.
Will Maduro push back? If protesters show up at the embassy, do they appear to be under someone’s control? Are they at the front gate, where the news cameras are, or are they seeking to encircle the building? Are diplomats being hassled on the street by law enforcement, or ignored when they are “off stage?” These things are being watched as staff hunker down. It is a nervous time inside the American Embassy in Caracas.
In such situations it is hard to say goodbye to evacuated colleagues and dependents, and hard to stay focused on work when your safety is in question. The big decisions may be happening outside of your control. Is your physical presence sending a resolute signal of support as diplomats’ presence often does, or are you bait deliberately placed in harm’s way by the Trump administration hoping for an incident? Like the song, in the end the waiting is the hardest part.
BONUS: For those who believe Trump is beholden to Putin and skews American foreign policy to his benefit, maybe you can explain below why Trump is trying to oust Putin ally Maduro in Venezuela in the first place. Does access to oil beat out the risk of the Russkies uploading the pee tape to Instagram?The Russians are warning the U.S. not to interfere with their friends, the current Venezuela government. Russian security contractors are helping guard Maduro. China stated it too opposes foreign interference in Venezuela’s internal affairs. Imagine the reaction if following the 2016 election powerful nations declared they would not recognize Donald Trump as president and demanded Mike Pence take the oath instead.
BONUS BONUS: Under near-ancient rules governing the exchange of diplomats, the host country approves foreign diplomats for service in their nation; Venezuela, Russia, Canada, Great Britain and all the rest say yes or no when the U.S. wants to ship in a new foreign service officer. The concept works in the inverse as well; the host country can order diplomats out. Formally that’s called declaring them unwanted, no reason needed, persona non grata (PNG.) It happens regularly, often tit-for-tat among enemies. It was back in May that Maduro did PNG the acting American Ambassador Todd Robinson and his deputy Brian Naranjo, claiming they were part of some “conspiracy.” The U.S. has no ambassador in Venezuela, with just another acting person in charge.With friendly nations, the formal process exists only in the extreme. More likely the host country Foreign Minister will phone up the American Ambassador first with an informal “suggestion” someone be packed out, or a visa will be denied for some technicality to preserve face for bigger issues. So the trick of the light being used here by the U.S. is fully acknowledging Venezuela’s right to throw our people out, while saying the current president Maduro no longer makes those decisions. Delicate protocol is preserved even while a harsh message is sent. Diplomacy is tricky when played well.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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