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

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 and what Oxfam is doing to protect people’s right to seek asylum.

On September 20, shocking images of Border Patrol agents in Del Rio, Texas, physically and verbally abusing Haitian asylum seekers flooded social media. This violent treatment of people seeking safety is a reflection of the longstanding anti-Blackness of US immigration policy, and only the most recent example of the Biden administration’s cruel enforcement of Title 42, a xenophobic policy based on widely-debunked, pretextual public health claims.

In August, the Biden administration recognized the “deteriorating political crisis, violence, and staggering increase in human rights abuses” in Haiti when it redesignated the country for Temporary Protected Status (TPS). This status protects Haitians already in the US from forced return to Haiti because of the dangerous conditions there. But this recognition has not stopped the Biden administration from chartering planes to fly Haitians into those very conditions or using the baseless Title 42 policy as justification to ramp up expulsions. Sending Haitians back into harm’s way demonstrates a complete disregard for human lives. Furthermore, by prioritizing politics over people, the Biden administration undermined its pledge to create a humane and orderly immigration system.

Oxfam, along with the ACLU, Center for Gender & Refugee Studies, RAICES, and Texas Civil Rights, sued the Trump and Biden administrations over the Title 42 policy. A Washington, DC court recently ruled that the policy is likely to be found illegal, and in violation of longstanding refugee law. But the Biden administration is fighting that ruling, asking a federal appeals court to allow Title 42 expulsions of families to continue.

“The injustice and inhumanity we are seeing play out in Del Rio is the exact reason we are suing the administration over Title 42. The US is using this racist policy not for any plausible public health reasons but simply as a tool to forcibly expel people coming to the border,” says Noah Gottschalk, Oxfam America’s Global Policy Lead.

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 people from seeking asylum at the border based on an unlawful invocation of the Public Health Service Act, located in Title 42 of the US Code. Although the public health order is based on the purported ability of refugees to “introduce” COVID into the country, Trump’s advisors had sought to abuse this public health authority to carry out its anti-refugee agenda long before the outbreak of the COVID-19 pandemic. As a result, people fleeing for their lives are being denied entry to the US, without any due process or screening for refugee protection, even if they show no signs of having COVID-19. President Biden has continued to implement this harmful and illegal policy despite promising to reverse the xenophobic policies of his predecessor. As a result, 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 both US law – specifically 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, 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. And the Universal Declaration of Human Rights, the foundational document of human rights law, states clearly that people have a right to seek asylum. The UN Refugee Agency has taken the rare step of publicly criticizing the US, most recently following the treatment of Haitians, for its expulsions under Title 42. Put simply, seeking asylum is a legal means of entering the country, and 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 the Title 42 policy 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 actually created a health risk, as those affected by the order are made to wait in crowded areas, which increases risk of 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 policy 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 forcibly returned to Mexico or sent to their home countries. Human Rights First has documented over 6,000 kidnappings and violent attacks against those refugees forcibly returned to Mexico. 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.

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

Oxfam and our partners at the ACLU, the Center for Gender & Refugee Studies, RAICES, and the Texas Civil Rights Project have sued the Trump and Biden administrations for their expulsions of unaccompanied children and families seeking refuge in the US. As a result of the litigation and ensuing advocacy, we have helped thousands of kids reunite with their families in the US and secured the safe entry of tens of thousands of refugee families who otherwise would have been forcibly returned to incredibly dangerous regions.

We are continuing to use all of the legal tools available to end Title 42 and protect people's right to seek asylum. In mid-September, a federal court issued a blistering decision ordering the Biden administration to stop expelling families seeking asylum at the southern border under false public health justifications. The following day, rather than abide by that decision, the Biden administration appealed it, and continues to rely on this illegal pretext to send asylum seekers at the border, including Haitians in Del Rio, back into harm’s way. Oxfam and our partners are determined to see this through until the government upholds the law and treats people with humanity.

On Thursday, November 18, as part of the #WelcomeWithDignity coalition—a group of 95 organizations that includes Welcome with Dignity, Amnesty International, the ACLU, HIAS, and Physicians for Human Rights—we sent a strong message to our government officials: Title 42, the Migrant Protection Protocols (also known as "Remain in Mexico"), and other policies restricting the right to seek asylum must end immediately. In total, 200,000 activists—including public health experts—joined our coalition to call for an end to the discriminatory policy and the creation of an accessible, fair, and humane asylum system.

Read more about our #WelcomeWithDignity actions.

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