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Title 42 Has “No Basis in Public Health”: PHR Files Amicus Brief to Rescind Inhumane Border Policy

Physicians for Human Rights filed an amicus brief to the U.S. Court of Appeals in support of the CDC’s efforts to end the “scientifically baseless” border expulsion policy

Medical experts and human rights advocates from Physicians for Human Rights (PHR) filed an amicus brief with the United States Court of Appeals for the Fifth Circuit today highlighting key public health evidence in support of the Centers for Disease Control and Prevention’s (CDC) efforts to rescind Title 42 border expulsions. Since the policy was enacted in March 2020, the U.S. government has used Title 42 to baselessly expel asylum seekers and other migrants almost two million times.

PHR filed the amicus brief  in support of the CDC’s proposed rescission of Title 42, following a May 2022 district court ruling that had prohibited the repeal of Title 42 from taking effect. The case was filed by 20 states, which argued that an expected increase in the number of asylum seekers being released from U.S. border custody upon Title 42 being halted would harm them financially, citing educational and other social services costs. The State of Louisiana, et al., v. Centers for Disease Control and Prevention, et al., v. Innovation Law Lab questions an immediate halt of Title 42 expulsions to ensure safe, orderly, and humane processing at the border for all, without discrimination. 

PHR’s brief presents the overwhelming public health interest in rescinding this policy, a factor that the district court barely addressed. Drawing on years of prior research by PHR and its partners, the brief also shows how Title 42 has been used as a political tool without any scientific underpinnings. Specifically, our research shows that expulsions carried out under Title 42 were never about safeguarding public health. Instead, it was a punitive immigration control measure that shreds U.S. legal obligations, under domestic and international law, to respect the right to seek asylum. 

The brief states: 

“Generally ignored in both the briefing and the district court’s decision are the serious consequences facing asylum-seekers as a result of the manner of Title 42’s implementation, along with the paucity of support for Title 42 as a necessary or even meaningful public health measure.

“…expulsions under Title 42 have violated the internationally recognized right of non-refoulement by returning asylum-seekers to dangerous conditions in Mexican border regions where they have been subjected to kidnappings, violence, extortions, and other crimes. These unsafe conditions have resulted in many of those expelled under Title 42 experiencing severe psychological sequelae.”

Read the full amicus brief here.

PHR also demonstrates how so-called “safety valves” outlined within the policy, and relied upon by the lower court, are grossly inadequate to address the humanitarian catastrophe caused by Title 42. Evidence from PHR and partners demonstrate that asylum seekers are subjected to severe harm through the process of expulsion itself, as well as the unsafe, inhumane conditions in northern Mexico border cities into which they are expelled. As Title 42 continues to deny asylum without due process, migrants waiting along the border and in Mexico are made to endure various human rights violations and abuses, such as violence, extortion, kidnapping and forced family separation, which can impose severe psychological trauma on families for years, even post-reunification. 

The amicus brief cites various instances of asylum seekers in need of emergency medical care or those who provided evidence of severe danger in their country of origin that have still been turned away under the Title 42 policy, including a Nigerian asylum seeker who was shot multiple times in Mexico and a Mexican asylum seeker traveling with her children and carrying photos of the dismembered bodies of her murdered husband and teenage son. While awaiting asylum in Mexico, one encampment in Tijuana housing approximately 2,000 asylum seekers reports no formal sanitation facilities and widespread gastrointestinal illnesses causing severe illness in newborns and young children.

“Not only is there a jarring absence of evidence to show that the Title 42 policy has done anything to serve the purpose of protecting public health, the expulsions have actually resulted in documented harm to the health, safety, and well-being of asylum seekers,” said Michele Heisler, MD, MPA, medical director at PHR and professor of internal medicine and public health at University of Michigan. “The mountain of evidence to show the irreparable harm, both mental and physical, that asylum seekers endure in this process cannot be ignored by the court. All people have a human right to seek asylum, a right protected by international treaties to which the United States is bound and our own domestic law. PHR is committed to protecting that right from politicized policies that weaponize science against vulnerable people.”

The United States Court of Appeals for the Fifth Circuit granted the joint proposed schedule request (Dkt. BL-52), pushing the deadline for the States’ consolidated response to the appeals by the CDC to August 31, 2022. The deadline for the CDC’s reply is September 21, 2022.

The amicus brief also highlights that there continues to be no sound epidemiological justification to single out asylum seekers for expulsion while other groups of people can enter the United States if they abide by COVID-19 safety protocols, particularly as many COVID-19 travel requirements are eased. And for those seeking asylum, public health concerns significantly increase under the current policy. 

As the pandemic proceeded, no evidence has been developed to support the theory that persons arriving in the U.S. to seek asylum are any more likely to transmit COVID-19 than any other groups allowed to cross the land border and enter the United States, nor, in fact, have they been more likely to enhance transmission of the virus than any local population…

“…the conditions of Title 42 expulsions, while not serving public health benefits, have caused heightened public health, medical, and safety risks to those seeking asylum. It is because of Title 42 that they often find themselves in dangerous congregate settings during or immediately following expulsions, thereby increasing the risk of COVID-19 transmission, among other communicable diseases.”

While PHR welcomed the announcement from the CDC to rescind the Title 42 order earlier this year, the organization and its partners continue to engage in advocacy at the federal and state level to hold the U.S. government accountable for its commitments to end expulsions. In a series of letters to the Trump and Biden administrations, PHR has joined top medical and public health experts and leading human rights organizations in repeatedly explaining how the Title 42 order does nothing to protect public health, while inflicting enormous harm on asylum seekers who are attempting to flee to safety. 

PHR’s most recent research on the expulsion policy continues to demonstrate its devastating consequences, including family separations, abusive actions by U.S. and Mexico government officials, and acute medical and psychological impacts on asylum-seeking children and adults, including high rates of post-traumatic stress disorder, anxiety, and depression.

Physicians for Human Rights (PHR) is a New York-based advocacy organization that uses science and medicine to prevent mass atrocities and severe human rights violations. Learn more here.

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