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New Guidance Fails to Stop Mistreatment of Pregnant People and Their Children in Detention

A U.S. Customs and Border Protection vehicle is seen next to migrants after they were detained and taken into custody.
Bassinets and snacks don't make the detention of pregnant, postpartum, nursing people, and their newborns any less inhumane.
A U.S. Customs and Border Protection vehicle is seen next to migrants after they were detained and taken into custody.
Mitra Ebadolahi,
Border Litigation Project Staff Attorney, 勛圖眻畦 of San Diego & Imperial Counties
Monika Y. Langarica,
she/her/hers,
Immigrants Rights Staff Attorney, 勛圖眻畦 of San Diego & Imperial Counties
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December 17, 2021

Recently, U.S. Customs and Border Protection (CBP) issued new requiring baby bassinets and snacks to be available to infants and people who are pregnant, postpartum, or nursing in CBP detention. Neither are of comfort in freezing cold, overcrowded holding cells notorious for their harsh conditions. And none of the added features included in the new policy can compensate for the physical and emotional strain of CBP detention conditions on people who are pregnant, postpartum, or nursing their newborns.

Though highly anticipated, CBPs guidance falls embarrassingly short and will do little to address the well-documented of pregnant people in the agencys custody. The new guidance demonstrates that instead of moving away from detaining these uniquely vulnerable populations altogether, CBP is attempting to double down on unnecessary and dangerous detention practices.

In January 2020, the 勛圖眻畦 of San Diego & Imperial Counties (勛圖眻畦-SDIC) and the 勛圖眻畦 of Texas filed a with the U.S. Department of Homeland Securitys Office of the Inspector General (OIG) calling for an immediate review of mistreatment of pregnant people detained in CBP facilities. Such mistreatment regularly imperiled the viability of pregnancies, even sometimes resulting in miscarriage. Nancy, one mother interviewed by the 勛圖眻畦-SDIC, reported:

...that the food she received was spoiled and served cold; she could not bring herself to eat it [she] had been taken into custody in wet and mud-covered clothing, [and] was neither permitted a change of clothing nor provided a chance to shower for the duration of her detention.

In April 2020, 勛圖眻畦-SDIC filed a subsequent on behalf of a pregnant woman who suffered mistreatment at the Chula Vista Border Patrol Station. After arresting her for routine processing, instead of facilitating her immediate access to critical medical care, CBP officers subjected her to a rough ride to a Border Patrol station, jerk[ing] the steering wheel and slamm[ing] on the brakes. Her experience only deteriorated inside the station, where she was forced to give birth while holding onto a trash can for support. The woman reported:

Her husband heard the babys cries and, desperate to ensure the safety of his newborn child, lowered his wifes pants and reached for the babys head, which was protruding out of her body. A Border Patrol agent and multiple medical staff also reached for the baby, some without gloves, and the baby was born. Although joyous about the birth of her child, [she] felt humiliated after realizing she had been surrounded by about 20 strangers, including multiple CBP agents and other unknown detained men, while she gave birth.

The woman was finally taken to a hospital after she gave birth. After she was discharged, however, Border Patrol forced her to return to the Chula Vista Border Patrol Station for a night of postpartum detention together with her newborn baby.

In response to the complaint on behalf of the woman who gave birth at the Chula Vista Border Patrol Station, the OIG issued a in July 2021 finding a number of deficiencies in the manner in which CBP and Border Patrol respond to in-custody births. The OIG recommended that CBP expedite releases because holding U.S. citizen newborns at Border Patrol stations poses health, safety, and legal concerns. Eleven senators to Homeland Security Secretary Alejandro Mayorkas urging DHS to adopt a policy similar to one that Immigration and Customs Enforcement (ICE) earlier this year, which states that [g]enerally, ICE should not detain, arrest, or take into custody people who are known to be pregnant, postpartum, and/or nursing. Instead of heeding the senators recommendations and following ICEs lead on this issue, CBP has chosen a path of further detention, entrenching a practice that jeopardizes the safety and well-being of people like the 勛圖眻畦-SDICs client and her newborn baby.

Among other things, CBPs new guidance purports to improve access to medical care and basic items like snacks, liquids, and diapers in hieleras; conditions under which parents can nurse and change diapers in hieleras; and documentation of childbirths in hieleras. But it fails to address the fundamental problem that CBP detention in hieleras threatens the health and dignity of pregnant, postpartum, and nursing people and their newborns, and that a humane alternative exists. The risks of CBP detention that the new guidance purports to mitigate, including limited access to medical care, inadequate care for infants, and inconsistent documentation of in-custody births, could be prevented altogether if CBP instead prioritized the prompt release of people who are pregnant, postpartum, or nursing. This would avoid the possibility of in-custody births of U.S. citizen babies and alleviate the need to accommodate postpartum and nursing parents.

The July 2021 OIG report included images of the 勛圖眻畦-SDICs client laying down on a concrete bench in a hielera with her newborn U.S. citizen baby wrapped in an aluminum blanket for warmth. CBPs response to this disturbing image was to suggest adding a bassinet for the baby and to offer snacks and milk.

Our demand in response is simple: CBP must stop detaining pregnant, postpartum, and nursing people altogether by prioritizing their prompt release to their networks of care in the United States, so that these individuals may pursue their immigration cases in safe and humane conditions.

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