U.S. Customs and Border Protection has used a controversial Centers for Disease Control and Prevention order authorizing the expulsion of asylum-seekers on supposed public health grounds to send multiple U.S.-born infants — who are by law U.S. citizens — and their migrant families across the southern border to Mexico.
In interviews with The Intercept, three asylum-seeking mothers who crossed the border while pregnant described giving birth in U.S. hospitals, only to be swiftly sent back under false pretenses and without an evaluation of their particular humanitarian circumstances or claims of danger. The Intercept has reviewed medical and immunization records for the women and their infants, which prove U.S. hospital births, and is referring to the mothers by pseudonyms due to their precarious status as asylum-seekers and the danger they believe they still face in Mexico, where all three remain. None immediately received citizenship paperwork for their infants, and they are unsure if and when they’ll be allowed to tender an asylum claim.
“The law does not allow for the rapid expulsion of U.S. citizens,” said Nicole Ramos, director of the Border Rights Project at Al Otro Lado, a legal and social services organization that is investigating the expulsions. Al Otro Lado, which has a presence in San Diego, Los Angeles, and Tijuana, Mexico, said it is aware of a total of eight mothers in this situation, two of whom it’s lost contact with and the rest of whom remain in Mexico.
One such mother, Lupe, was the subject of a complaint filed with the Department of Homeland Security this summer. At the time, CBP claimed that she had departed voluntarily with her toddler and chalked the situation up to a fluke. In an interview with The Intercept, Lupe said that not only had she not been asked about the expulsion or given affirmative consent for her citizen child to be expelled alongside her, but also she wasn’t even aware that she was being turned back to Mexico until she saw the Mexican border agents waiting for her.
Juana, an asylum-seeker fleeing gang threats in Honduras, said she arrived at the border nine months pregnant and with her 8-year-old son in July. She was already experiencing labor pains and decided to cross the border and seek help. Border Patrol officers called an ambulance and took her son to the processing center known as La Perrera, or the kennel. She was moved to Scripps Mercy Hospital Chula Vista in Chula Vista, California, and gave birth to an infant son the next morning. According to Juana, CBP personnel assured both her and a social worker who had been assigned to her case that she and her sons would be able to stay in the United States to await an immigration proceeding. Instead, they were loaded into a vehicle and only realized that they were being taken to Mexico as they were brought to the port of entry. (The hospital declined to make the social worker available for comment and said it does not track how many new mothers in immigration custody it treats.)
Per an agreement with Mexico, the CDC order is meant to apply only to citizens of Mexico, Guatemala, Honduras, and El Salvador. Yet The Intercept spoke with a mother from Haiti who was sent back to Tijuana two days after delivering a baby daughter under CBP custody after attempting to petition for asylum at a port of entry in mid-July. “When I crossed the border, that’s when I realized I was being taken to Mexico,” Angeline told The Intercept. “I started screaming, ‘What am I going to do with a baby, I don’t have any place to stay, anywhere to sleep.’”
The expulsion policy was first issued in March, ostensibly as a countermeasure to the coronavirus pandemic. It’s based on a statute that deals with public health, not immigration, and gives the CDC director “the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate” in order to prevent the introduction of such a disease. The Wall Street Journal reported in October that senior officials at the CDC thought the measure was unnecessary, but implemented it under political pressure from White House Adviser Stephen Miller. Its legal premise was questioned in a recent federal court decision that prevented the administration from continuing to expel unaccompanied minors.
Nonetheless, the order was reissued in mid-October for an indefinite period of time, at the CDC director’s discretion, and remains active. It generally calls for people who are not U.S. citizens or residents and do not otherwise have entry paperwork to be expelled from the country as quickly as possible, without even the opportunity to file a case for humanitarian protections. Between mid-March and mid-October, over 204,000 expulsions took place, with only a tiny fraction of people exempted under humanitarian categories. Migrants are either sent across the border to Mexico or on flights to their countries of origin, including minors with their families and unaccompanied minors, prior to the federal injunction.
The CDC order specifically exempts U.S. citizens, and no part of U.S. immigration law appears to authorize the expulsion of people who were born in the United States. CBP spokesperson Matthew Dyman declined to discuss particular cases and said the agency does not keep data on the total number of mothers and newborn U.S. citizen infants expelled under the order. He echoed a previous claim by immigration authorities that migrant mothers who are expelled from the U.S. voluntarily choose to take their children along rather than leave them behind — a choice that CBP has been known to pose to parents who are being removed. The U.S. government “does not expel (under title 42) nor deport American citizens,” Dyman wrote. “A U.S. citizen departing the country with an alien who has no legal presence and is being expelled or deported would be accompanying that expelled/deported individual.”
But this rationale falls apart when considering the mothers’ claims that they weren’t informed they were being expelled at all. “In order for there to be consent, there needs to be an ask. And none of them were asked whether they would consent to leave their infant child in the U.S. foster care system,” said Ramos. “It would be interesting for [CBP] to argue that all of these mothers consented and it was an expulsion because they all have very similar stories. ‘I was told I was going to go to my family. I was going to be released. I ended up in Mexico. I don’t know how this happened.’”
The incoming Biden administration has pledged to review the myriad asylum restrictions implemented by President Donald Trump, but has not yet issued a clear timeline or plan. In recent interviews, soon-to-be senior White House officials have hinted that Trump border policy revisions will happen gradually and that there are “processing capacity” issues that might justify moving slower than advocates hope. Joe Biden’s transition team did not respond to a request for comment.
The order allows customs officials to exercise discretion and consider humanitarian and other factors when making expulsion decisions. Asked about whether current CBP policy would consider pregnancy or birth medical situations to warrant a favorable exercise of humanitarian discretion under the order, Dyman wrote that “COVID-19 now makes any individual arriving at our borders—with or without symptoms—a potential risk to frontline personnel, doctors and nurses, and the American public.” He said that discretion might be exercised “when return to the home country is not possible or an agent suspects trafficking or sees signs of illness.”
Lupe, the Honduran asylum-seeker whose case was the subject of the complaint earlier this year, was detained with her partner and 4-year-old son after crossing the border at the end of March. She says she was expelled twice. The first time, Mexican authorities refused to take her in due to her being nine months pregnant and returned her to the U.S. Once turned over to CBP custody again, she was taken to McAllen Medical Center in McAllen, Texas, where she gave birth on April 1. She gave the name of a longtime friend who lived in Texas as a person with whom she could stay.
In a phone call with The Intercept, this friend, who is not being identified because he was previously deported, said that a CBP officer had told him that Lupe and her family would be released to stay with him. According to him, CBP had called to tell him that “she was going to a detention center, and then was going to be sent here, let go so she could come to my house,” referencing his home in Texas. Instead, after five days in a family detention center, the family was expelled to Mexico. “A few days later, I was surprised when [Lupe] called, and she was already in Reynosa.”
Lupe claims that as she was being driven back to the border, a CBP agent told her, “Now your daughter is an American,” and warned her not to try selling her daughter’s documents to other people. Yet despite going to the U.S. consulate in Matamoros shortly after the expulsion, she has so far been unable to obtain proof of her daughter’s U.S. citizenship, at least in part thanks to reduced consular staffing amid the pandemic. In response to questions, a U.S. State Department official declined to discuss specific cases, but wrote that the embassy and consulates in Mexico “suspended routine consular and visa services March 18 due to COVID-19,” resuming in a limited capacity only in October, long after Lupe had visited. Emergency processing has been available on a case-by-case basis despite the work shutdowns, but she wasn’t aware that she could ask for it, and she’s been unable to make the hourlong trip to Matamoros again. Her friend in Texas eventually got the infant’s Social Security card, but Lupe has yet to obtain any paperwork directly. Juana, for her part, said she provided the address of a family member in the United States for the baby’s birth certificate to be sent. According to her lawyer, it has not yet been received.
Angeline, the mother from Haiti, had traveled from Chile with a boyfriend, who crossed the border before her and remains in the U.S., along with members of her family. She said that immigration officials did not contact her relatives, despite her begging that her brother be called as she was being walked across the border. “I was sleeping a couple of nights on the street [in Tijuana, with the newborn] until I managed to meet with a cousin who let me stay at her place,” she said. “My brother was expecting me to call so he could pick me up at the hospital or help in any way that he could, so he was very surprised that I was dropped off [in Mexico] without communicating with him.” Now in Mexico, she has had trouble getting her infant daughter vaccinations without all the proper identity papers.
Juana has also struggled to receive adequate medical care for her newborn son in Mexico, who has suffered complications including umbilical bleeding.
For now, Al Otro Lado is still trying to get the children passports and birth certificates, but even then, the documents would only permit entry to the infants, not their families. For the parents still hoping to receive asylum protections in the U.S., it’s not clear what remedies are available. Ramos’s team is working on a complaint to the Homeland Security Office of Inspector General that Al Otro Lado hopes will trigger an official investigation into the legal and operational deficiencies that could have permitted these children to be expelled and prevent this situation from happening again, as well as hold those responsible accountable. By luck of the draw, this group of children have been bestowed the benefits of citizenship — but rights that are inaccessible are rights denied.