Taking on the government to fight for refugee rights

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Illustration: Sandy Stowe/Oxfam

Oxfam legal and shareholder advocacy advisor Diana Kearney breaks down an Oxfam-supported lawsuit on behalf of refugee families.

On Wednesday, January 19, Oxfam and our co-counsel, the ACLU, RAICES, Texas Civil Rights Project, and the Center for Gender & Refugee Studies, will argue for the rights of refugee families before the US Court of Appeals of the District of Columbia Circuit. It's the latest step in our campaign to stop the use of an obscure public health policy known as Title 42 to forcibly expel asylum seekers back to Mexico and other countries—a legal challenge that began with the Trump administration and has continued as the Biden administration refuses to cease Title 42 expulsions.

Diana Kearney, Oxfam America's Legal and Shareholder Advocacy Advisor

Diana Kearney, Oxfam America's legal and shareholder advocacy advisor, explains what's at stake for refugee families, and how this lawsuit is championing migrant rights, civil rights, and international human rights.

Who are we representing?

Oxfam and our co-counsel are representing refugee families who have been expelled from the United States without the opportunity to apply for asylum. That includes families who have been persecuted by their governments, gangs, or other actors due to their political opinion, religion, race, nationality, or other characteristic.

We are suing on behalf of all refugee families as a “class.” That class represents mothers, fathers, and children from all parts of the globe, including families from Haiti, Brazil, the Philippines, Ukraine, Guatemala, India, Venezuela, Mexico, Cameroon, Russia, Honduras, Ecuador, and many other countries.

What's at stake for families at the center of the suit, and for asylum seekers in general?

The stakes could not be higher for refugee families: Human rights groups have documented thousands of kidnappings, sexual assaults, acts of violence, and even murders of refugees the US government forcibly expelled back to Mexico and other countries under Title 42. We are fighting to protect the lives and human dignity of some of the world’s most vulnerable populations.

We want to ensure that the US government respects the rights of families who have fled torture, political persecution, and other forms of extreme violence to apply for asylum in the US.

The Biden administration is bound by both domestic law (the Immigration and Nationality Act) and international law (the Refugee Convention, the Convention Against Torture, the International Bill of Human Rights) to allow refugees to seek safety at our border, rather than be expelled back to regions where they are at risk of persecution. We are litigating alongside our partners to ensure that the US government adheres to these legal obligations.

Where are we now?

Today, the Biden administration is relying upon Title 42 to expel refugee families back to Mexico, Haiti, and other countries where refugees face extreme violence. In September, a Washington, DC federal court issued a “preliminary injunction” barring the Biden administration from relying upon this public health statute to expel asylum seekers, noting that the use of a public health law to ban refugees appeared illegal and would inflict “irreparable harm” onto refugee families.

Despite its campaign-trail promises to overturn xenophobic Trump-era policies, the Biden administration appealed this decision, seeking to continue expelling refugee families.  Now, Oxfam and our co-counsel will argue before the US Court of Appeals of the District of Columbia Circuit that the ban on expelling refugee families to danger should be upheld.

This is still the injunction phase of the litigation, which will determine whether an emergency ban on Title 42 should be enacted during the months the full case is litigated, in which the court will rule on the ultimate legality or illegality of the administration’s use of COVID-19 as a pretext to ban asylum seekers. Regardless of the outcome of today’s hearing and whether refugee families can apply for asylum right now, the broader question of whether Title 42 may be used to ban refugee families in the future will continue to be litigated.

What will winning this case mean?

If we win and the decision is not appealed, refugee families will no longer be expelled back to Mexico, Haiti, or other countries where they fled persecution. Instead, they will be allowed to apply for asylum in the US, pending the full hearing "on the merits." This would mark an enormous victory for human rights and respect for the rule of law in the US and protect the lives and dignity of thousands of refugees who could seek the safety of the US.

However, the story may not end there: It is possible that the Biden administration will continue to double down on the Trump administration’s inhumane policies and would appeal this decision up to the Supreme Court.

What comes next if we lose?

If we lose, that means the Biden administration will likely choose to continue to expel refugee families back into the dangerous and even deadly regions where they had escaped persecution, in violation of US and international law. However, that is not the end of the story! Because the case remains in the “preliminary injunction” phase—an emergency hearing to determine whether the policy may continue during the more protracted litigation “on the merits”—we will continue to fight on behalf of refugee families in court.

No matter the outcome of this case, Oxfam will continue advocating for the rights of all refugees and asylum seekers. We will continue to hold our government accountable to building a better, more just, and more humane immigration system.

Read on to learn about Title 42, the public health policy that is being used to prevent people from seeking asylum.

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