New guidelines issued for care for pregnant women, mothers with babies born in Border Patrol stations

U.S. Customs and Border Protection released new guidelines for the treatment of pregnant woman and infants in custody at Border Patrol stations and U.S. border crossings, following a critical report from a federal watchdog and pressure from 11 Democratic senators. 

Earlier this year, the Office of Inspector General within the Department of Homeland Security reviewed an incident at a Border Patrol station in February 2020 when a woman gave birth to her child while wearing pants, holding into a garbage can for support. In the 27-page review, the OIG found serious problems with how Border Patrol manages the care of pregnant woman, and said the agency largely didn't track how many U.S. citizen children were born in BP stations.

At least 23 babies were been born in Border Patrol stations between 2016 and Sept. 2020, the OIG wrote.

Additionally the OIG found that Border Patrol "did not always take prompt action to expedite the release of U.S. citizen newborns, resulting in some being held in stations for multiple days and nights."

"Although some of these instances may have been unavoidable, Border Patrol needs reliable practices to expedite releases because holding U.S. citizen newborns at Border Patrol stations poses health, safety, and legal concerns," the OIG wrote. 

Problems with CBP's treatment of migrants have spanned the last presidential administration, extending into the Biden administration, which has promised to treat migrants fairly and humanely.

On Monday, CBP's Acting Commissioner Troy Miller sent out a memo to agency officials, requiring updates with 45 days of how the agency's 74 Border Patrol stations and 328 border crossing points would adhere to new guidelines on the treatment of pregnant women, as well as women who have recently given birth, and their infants.

Among the policies outlined by Miller is a requirement that officials at Border Patrol stations and the Office of Field Operations—which manages border crossings—must offer medical assessments, ensure welfare checks, make "reasonable effort" to give mothers privacy while they breastfeed, and ensure that pregnant women and mothers with infants are not required to stand for long periods of time, but are offered an appropriate place to sit and rest.

Further, within the next six months, CBP facilities located within 100 miles of the U.S.-Mexico border will have at least one bassinet for an infant, and the agency's processing centers must have at least five sleepers or bassinets for infants.

"This policy is not intended to have any effect on the immigration processing or outcomes for the individuals covered by this policy," Miller wrote. "Those without a legal basis to enter the United States will continue to be placed in expedited or full removal proceedings."

Miller's memo comes as CBP took 117,620 people into custody in October.

While nearly two-thirds were single adults, the agency also encountered nearly 43,000 people traveling as families, and nearly 13,000 children traveling without parents or guardians. As they have for the last 20 months, CBP officials immediately immediately expelled 91,894 people under Title 42—a public health order ostensibly supported by the CDC that allows CBP officials to rapidly deport those who crossed into the U.S. if they had traveled through a country with COVID-19 infections.

Earlier this month, a group of 11 Democratic senators demanded Homeland Secretary Alejandro Mayorkas issue new guidelines for mothers and their newborns, based on the OIG's findings. "As this case and the OIG's report highlight, current CBP policy is wholly inadequate and has exposed pregnant people and their U.S. citizen newborns to serious dangers related to their health and safety," they wrote. Notably, Sens. Krysten Sinema and Mark Kelly of Arizona did not sign the letter.

"A change in CBP is required to prevent what happened to the woman who was the subject of this report from ever occurring again—including CBP's failure to ensure she was given timely medical care while she was in labor, lack of privacy during and following the traumatic birth, and a night of postpartum detention in which she was forced to sleep on a bench together with her two-day old newborn U.S. citizen baby," the Democrats wrote.

Woman gives birth while holding garbage can

In July, the OIG issued a sharp critique of the agency's handling of pregnant women while in custody at Border Patrol stations, following complaints that CBP officials were "mistreating pregnant people" in their custody.

The OIG reviewed the incident, and said that Border Patrol agents apprehended a woman on Feb. 16, 2020 along the border near San Ysidro just south of San Diego, California. 

According to a timeline of the incident, the woman was taken into custody at 2:30 p.m., and by 3:09 p.m., it was clear that the baby was coming. According to the OIG's review of the incident, the woman's husband asked CBP for medical attention, but was ignored by agents, and his wife partially delivered her baby into her pants while standing and holding onto the edge of garbage can for support. Within minutes, the baby was born inside the Border Patrol station.

The woman and her baby were taken to the Sharp Chula Vista Medical Center via an ambulance where they stayed until Feb. 18, when they were brought back to the station at 6:10 p.m. In a concrete holding cell, which includes a hard bench to sleep, the woman and her stayed there for the night. She was released at 2 p.m. from Border Patrol's custody with a notice to appear in court.

The OIG said that after reviewing the circumstances, Border Patrol provided "adequate medical assistance to the mother and her newborn and complied with applicable policies."

"Although Border Patrol released most detainees with their U.S. citizen newborns on the day of the hospital discharge, we found instances when Border Patrol held detainees and their newborns overnight, some for multiple days and nights."

"In some instances," Border Patrol officials had reason to hold families, but nonetheless "holding U.S. citizen newborns in custody at Border Patrol stations poses health, safety, and legal concerns," the federal watchdog wrote.

"Border Patrol does not have long-term detention for families in such circumstances because stations are not intended for long-term detention of any migrants, including families," the OIG said. Further, while U.S. Immigration and Customs Enforcement does have family residential centers for families with children, "it will not accept U.S. citizen newborns," the agency said.

Despite these issues, the OIG found at least 23 other instances when newborn children were held at Border Patrol stations from 2016 to Sept. 2020, and in at least 10 instances, women and their newborns were brought back from the hospital to spend at least one other night at a Border Patrol station—including one woman who spent 4 nights in the cramped concrete cells with her newborn child.

BP stations 'substantially worse' than jails

For years, the agency has been hit with complaints that the people detained in facilities along the southwestern border are often exposed to squalid, crowded facilities while in detention. In February 2020, a federal judge in Arizona agreed ruling that conditions in Border Patrol stations in Arizona were "presumptively punitive and violate the Constitution."

In a 40-page decision, U.S. District Judge David C. Bury wrote that there "undisputed" evidence that conditions of confinement at stations in the Tucson Sector—which covers Arizona from the Yuma County line to New Mexico—are "substantially worse than conditions afforded criminal detainees at the Santa Cruz County jail or other jail facilities, where detainees are medically screened by medical professionals; have a bed with cloth sheets, blankets, and pillows, and an opportunity for uninterrupted sleep; have clean clothing, including second layers for warmth; showers, toothbrushes and toothpaste, and warm meals with a variety of food choices, including fruits and vegetables, accommodating food allergies and religious beliefs."

Bury's decision was part of a long-running suit that began in 2015 over the treatment of migrants in Border Patrol stations, which argued that the agency violates their constitutional rights by regularly holding people for more than 24 hours in temporary facilities leading to conditions that advocates called "inhumane, punitive, and unconstitutional."

BP records 'unreliable'

In fact, the OIG found that Border Patrol does not track the number of pregnant woman it detains, and has "unreliable records" on the number of childbirths. This hinders the ability for the agency to "effectively and safely manage one of its most vulnerable and potentially at-risk detainee populations," the OIG wrote.

"Although Border Patrol has implemented process to screen individuals it apprehends for medical concerns, it relies on detainees to self-report pregnancies. Further, Border Patrol does not have clear policies or guidance requiring agents to document childbirths and pregnancy-related complications that occurred in custody resulting in inconsistent and incomplete records."

The OIG found that Border Patrol does not have a standard practice to track the number of pregnant woman and infants delivered at Border Patrol stations, and also wrote that the agency lacks a standard practice to make sure that infants and mothers are released as soon as possible, including while still at a local hospital "rather than waiting until the hospital discharges them."

In fact, Border Patrol's ability to track children was one of several major issue with the Trump-era policy of family separations.

As the OIG wrote earlier this year, during the height of the disastrous and controversial "zero tolerance" policy, Trump administration officials took little care to determine whether immigrants parents wanted to be reunited with their children before deportation, and instead relied on a haphazard, inconsistent process that lacked "clear guidance."

Beginning in July and November 2017, CBP sought to prosecute the misdemeanor charge of improper entry, including parents who crossed into the U.S. with their children. The agency detained the parents, and separated the children, re-classifying them as unaccompanied minors. During the pilot program, which came to be known as the El Paso Initiative, the agency separated nearly 280 families.

However, despite signs that CBP was fundamentally unable to keep track of the children after they were separated, and warnings from social workers at the Office of Refugee Resettlement that children would suffer under the policy, the Trump administration forged ahead, launching the so-called "zero tolerance" policy in 2018, expanding the El Paso Initiative across the entire U.S.-Mexico border. Within a year, as many as 5,500 children were separated from their parents.

Miller said that CBP personnel musts now document births, recording them as a "significant incident" and establish a "comprehensive, searchable process" for documenting known and reported pregnancies.