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What you need to know about the obscure policy preventing people from seeking asylum at the US southern border

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Graphic: Sandy Stowe/Oxfam

Breaking down Title 42, the Trump-era policy that President Biden is using to send refugees back into harm’s way.

Last year, the Trump Administration dusted off an obscure rule known as Title 42 used COVID-19 as an excuse to carry out its xenophobic, anti-immigrant agenda. Since then, the US has carried out at least 980,000 expulsions of people at the border, denying children and families the right to seek asylum. Children have been separated from their families. Many people face sexual assault, kidnapping, murder, and other forms of violence and degradation when forced back across the border or deported to their countries of origin. And Black and LGBTQ migrants have been subjected to further discrimination as they wait on the Mexico side of the border.

What is Title 42, and why is this public health policy being used to deny asylum seekers entry to the US?

In March 2020, despite the objections of medical experts at the Centers for Disease Control and Prevention (CDC), the Trump Administration implemented an order restricting immigration at the border based on an unlawful invocation of the Public Health Service Act, located in Title 42 of the US Code. The public health order authorizes the removal of asylum seekers at our borders because of the purported ability of refugees to “introduce” COVID into the country. As a result, people fleeing for their lives are being denied entry to the US, without any due process, even if they show no signs of having COVID-19. Using this provision, the US has conducted more than 980,000 expulsions of asylum seekers at the US southern border under both the Trump and Biden administrations.

Why is using Title 42 to expel refugees illegal?

The CDC order violates the US Immigration and Nationality Act as well as one of the fundamental principles of international law: non-refoulement. Under Article 33 of the 1951 Refugee Convention—which marked its 70 anniversary in July 2021—non-refoulement prohibits states from returning people to countries where they have reason to fear persecution based on race, religion, nationality, membership of a particular social group or political opinion. Put simply, preventing asylum seekers from filing their claims is a violation of their human rights.

Do physicians and public health officials believe that the mass expulsion of asylum seekers helps prevent the spread of COVID-19?

Between April 2020 and March 2021, the United States admitted almost 96 million people at its land borders. Asylum seekers pose no greater threat to public health than other types of traveler crossing a US border. Leaders at several public health institutions, medical schools, and hospitals have urged the CDC and the Department of Health and Human Services (HHS) to withdraw Title 42 and instead apply evidence-based public health measures to safeguard the health of both Americans and the lives of adults, families, and unaccompanied children seeking asylum and other protection. A recent report from Physicians for Human Rights details how Title 42 has created a greater risk to health as those affected by the order are made to wait in crowded areas, which increases exposure to COVID-19. According to the report, “Every day that the Title 42 order continues to expel asylum seekers is another day that the US government is harming people’s health and violating their human rights.”

What harm has this policy already caused?

The order has already exposed hundreds of thousands of asylum seekers and unaccompanied children to risk of serious harm including kidnapping, rape, and murder as they are made to wait in Mexico or deported to their home countries. And not only that, but the Biden Administration has been known to send flights of detainees to distant parts of the border to expel them farther from where they crossed, putting them in more vulnerable situations.

There have been reports that Title 42 would soon be lifted for families. Is there a danger in only partially lifting Title 42, so that  other adults are still denied entry to the US?

What is Oxfam doing to put an end to Title 42?

On behalf of unaccompanied minors, Oxfam and partners like the ACLU, Center for Gender & Refugee Studies, RAICES, and Texas Civil Rights Project have sued the government, first under the Trump Administration—and then the Biden administration to challenge its expulsions of refugee families. As a result of the litigation and ensuing advocacy, we have secured the safe entry of tens of thousands of refugee families who otherwise would have been forcibly returned to incredibly dangerous regions.

Now we are once again returning to court, using all of our legal tools available to end Title 42 and protect people's right to seek asylum.

How can you help?

During his campaign, President Biden promised to reverse the Trump administration’s cruel and xenophobic immigration policies. However, Title 42 remains in place. Join us and demand that the Biden Administration immediately rescind Title 42 so persecuted people can claim asylum in the US.

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