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Are Venezuelans Illegal Migrants?

By: José Ignacio Hernández

The forced transportation of Venezuelan migrants from Texas and Florida to Washington D.C. and Massachusetts has resulted in a debate about whether they could be deemed “illegal migrants.

To begin with, the “illegal migrant” label cannot justify forced transportation. And, in any case,  that label doesn’t adequately characterize the situation of the Venezuelan migrants.

As the International Organization for Migration has concluded, “illegal migration” is a dehumanizing term that stigmatizes human mobility and could pave the way for degradant treatment. Therefore, it is preferable to refer to “irregular migration”, to describe the human mobility conducted beyond the regular migration channels of the host country.

The U.S. Law uses a similar expression: undocumented migrants, to describe the people that have entered the U.S. without fulfilling the regular migration controls. From that perspective, the Venezuelan people entering the U.S. through informal channels (like crossing the Rio Grande) are undocumented migrants -which does not prejudice their legal status.

The legal status of undocumented migrants should be determined according to the nature of the flows from Venezuela. In that sense, the Inter-American Human Rights Commission has concluded that Venezuelan human flows should be treated as a humanitarian crisis due to the complex humanitarian emergency in Venezuela. Consequently, the host states -including the U.S.- have the duty to provide humanitarian assistance to the Venezuelan people.

From that perspective, Venezuelan migrants are undocumented precisely because they are part of a humanitarian crisis that has forced them to leave Venezuela, facing perils such as the Darién Gap.

A possible legal path is to consider the Venezuelan people as refugees. But the refugee concept in the U.S. is very narrow. It includes all the people outside the U.S. who are “unable or unwilling to return to” their home country, in this case, Venezuela. The impossibility to return must be based on “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion“. This is a very restrictive concept that doesn’t meet the expanded concept of refugees adopted in the Inter-American Law, which includes the people that cannot return to their home country because of severe political and economic crises.

That is the situation of the Venezuelan people. On January 19, 2021, the U.S. Government adopted deferred enforced departure (DED) measures for certain Venezuelans, considering that the Venezuelan migration was caused by “the worst humanitarian crisis in the Western Hemisphere in recent memory“. A few months later, the Government granted a temporary protected status (TPS) becauseVenezuela is currently facing a severe humanitarian emergency”.

If Venezuelan migrants are undocumented, it is because they are escaping from a humanitarian emergency, as the U.S. Government has recognized. Consequently, they should be treated following humanitarian standards, according to the Inter-American Human Rights Commission’s guidelines, which apply to the U.S.

The forced relocation of Venezuelans is not a humanitarian treatment. This relocation was implemented with deceit and political use of the Venezuelan people. It is worth recalling that even undocumented migrants are human beings vested with unalienable rights, including human dignity. More particularly, the U.S. Law prohibitscruel, inhuman, or degrading treatment or punishment of persons under custody or control of the United States Government”. That prohibition, of course, applies to undocumented migrants.

Humanitarian Law encourages the resettlement of refugees and migrant as a policy aimed at reinforcing their human dignity. But forcefully transporting the Venezuelan to Martha’s Vineyard or the Vice President’s home in Washington, D.C., is far from humanitarian resettlement. It is degrading because Venezuelans are used as instruments (for any political purpose behind the forced transportation policies).

But we need to consider the other side of the problem. If there are undocumented migrants is because there is a failure in the U.S. migration system that cannot provide regular pathways of entry. As the Los Angeles Declaration recently reinforced, the U.S. migration policy must provide regular avenues of access. At the same time, it must adopt a holistic policy to tackle the root causes of the Venezuelan migration crisis, that is, the criminal and predatory policies of Nicolás Maduro. Weakening Maduro’s capacity to conduct his predatory policies is, therefore, a way to address those root causes.

What to do, then? The U.S. needs to design and implement a policy based on the humanitarian nature of the Venezuelan crisis. That policy could facilitate economic integration, solving some of the problems facing the U.S. economy due to the lack of workforce.

The policy towards the Venezuelan crisis must be regional, though. This is not only a U.S. problem but for the region. It is necessary to reinforce regional cooperation to provide humanitarian assistance and tackle the root causes of the Venezuelan humanitarian emergency.

Forcibly moving migrants from Texas and Florida to Washington, D.C., and Massachusetts, using the label of illegal migrants, will not solve the problem. Quite the contrary, it will aggravate it. The Los Angeles Declaration has the blueprint of the holistic policy the U.S. must implement. It’s time for action.

José Ignacio Hernández is a Venezuelan lawyer. He is a fellow at Growth Lab- Harvard Kennedy School.

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