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Home / Testimony of Rob Berschinski before EU Parliament: “A U.S. Perspective on the EU Global Human Rights Sanctions Regime” / NGO Letter to Biden Administration Urging End to Misuse of Title 42 Public Health Authority
February 02, 2021

NGO Letter to Biden Administration Urging End to Misuse of Title 42 Public Health Authority

Dear President Biden:

We write to urge your administration to immediately end the misuse of Title 42 public health authority to illegally and inhumanely expel asylum seekers and migrants at the border. As faith-based, legal services, humanitarian and human rights organizations that assist and advocate for asylum seekers and immigrant children, we are gravely concerned about the families, children, and adults seeking U.S. humanitarian protections at the U.S.-Mexico border.

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Since March 2020, the Department of Homeland Security (DHS) has blocked and turned away people at the southern border, including asylum seekers and children, without access to the U.S. asylum system or preliminary protection screenings, sending them to persecution, torture and other serious danger in violation of U.S. refugee and anti-trafficking laws and treaty obligations. The Trump administration, for instance, expelled prominent Nicaraguan dissidents who had attempted to seek asylum in the United States, returning them to Nicaragua where authorities had detained and beaten them for their political activism. Your administration continues to block and expel people, including families with children, under the same policy. 

These expulsions are being carried out under orders that Trump Administration officials pressured the Centers for Disease Control and Prevention (CDC) to issue despite objections by senior CDC medical experts. Last week, public health and medical experts at leading public health schools, medical schools, hospitals and other institutions issued a new letter calling on the CDC to rescind the current order, which the experts concluded has “no scientific basis as a public health measure,” and to adopt rational, science-based measures to safeguard public health while processing asylum seekers and children at the border during the COVID-19 pandemic. Leading public health experts have repeatedly called on the Trump administration to end these specious bans and expulsions, explaining that public health measures can protect both public health and the lives of people seeking asylum.

On January 29, 2021, a federal appeals court stayed a ruling that had enjoined the summary expulsion of unaccompanied children. It is now all the more urgent for your administration to immediately end the use of the CDC order to block and expel people - children and adults - seeking U.S. humanitarian protections. U.S. legal experts, including a former DHS official, have condemned this “shadow immigration expulsion regime,” characterizing it as “medical gerrymandering . . . crafted to override critical legal rights and safeguards.” International legal scholars have further explained that “COVID-19 does not grant States carte blanche to trample on well-established principles of international refugee law.” Members of Congress have repeatedly called for an end to the expulsions policy.

Even while DHS was enjoined from expelling unaccompanied children - in a ruling that found that U.S. public health laws likely do not authorize DHS to carry out such expulsions - the Trump administration continued to expel asylum-seeking families and adults to persecution and torture in the countries they fled and to turnback asylum seekers to extremely dangerous border regions in Mexico, including many African asylum seekers who have faced violence and discrimination there.

The U.N. Refugee Agency (UNHCR) explained in its March 2020 legal guidance on the COVID-19 response that state entry measures should not prevent people from seeking asylum from persecution and that states may not deny entry to people at risk of refoulement. In November 2020, the UNHCR Assistant High Commissioner for Protection warned that “measures restricting access to asylum must not be allowed to become entrenched under the guise of public health.” Just last week, UNHCR condemned expulsions of refugees and asylum seekers at borders in a statement focused on pushbacks from Europe, explaining that “[t]he right to seek asylum is a fundamental human right. The COVID-19 pandemic provides no exception.”

During the presidential campaign, you committed to end inhumane Trump administration border policies, uphold U.S. laws and treaty obligations to protect refugees and immigrant children, and adopt COVID-19 measures based in science. For your actions to reflect those promises, your administration must end the misuse of Title 42 public health authority at the border, stop blocking and expelling people seeking U.S. humanitarian protections, ensure appropriate infrastructure and support for shelters and other border groups to assist asylum seekers, and allow these families, children and adults to pursue their requests while in safety, inside the United States.

Download the letter