The Biden Administration says the use of Title 42 public health protections are critical to preventing the entry of COVID-19 into the country.
But human rights campaigners claim it denies arrivals their right to claim asylum and offers no public health benefit when the Coronavirus is already widespread.
"Issuing the title 42 role in order, [the Centers for Disease Control and Prevention] applied its scientific expertise to address a once-in-a-century highly dynamic public health emergency involving emergent variants of COVID-19, rising transmission rates, and strained healthcare resources, in particular at remote areas near the southwest border," said Sharon Swingle, for the Department of Justice.
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She said overturning Title 42 would mean holding migrants in facilities where COVID-19 could spread.
"They would have to be transported to border patrol stations or held at ports of entry facilities that are not designed or equipped to quarantine, isolate or treat COVID positive individuals, and they would be held for lengthy periods in these crowded and overcapacity facilities, posing a substantial risk of the spread of COVID 19," she said.
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In September, a federal court in Washington, DC, issued an injunction blocking the Biden Administration from using the effort to expel families.
However, that was overturned on appeal.
On Wednesday, campaigners returned to the appeals court to claim that they have recorded thousands of murders, kidnappings, sexual assaults, and other forms of violence against expelled migrants.
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"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," said Oxfam legal adviser Diana Kearney in a memo setting out the group's position.
"We are litigating alongside our partners to ensure that the US government adheres to these legal obligations."
Title 42 was first applied to the pandemic by the Trump Administration. It allows border officials to swiftly return migrant adults and families to Mexico or their homelands without first screening them for asylum.
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Its use during the pandemic has been highly controversial, and critics saw the fingerprints of Steven Miller - one of President Donald Trump's most senior advisers - and his anti-immigration intuitions all over it.
At the time, the Associated Press reported that the White House had acted despite the advice of the Centers for Disease Control and Prevention which said there was no evidence it would slow the Coronavirus.
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