Meet the Federal Agency Helping to Criminalize Pregnant Migrants

Pregnant asylum seekers in Texas are held in federal custody and must sometimes endure life-threatening circumstances, according to one advocate, because of the way the United States has chosen to criminalize those seeking asylum.

[Photo: A pregnant migrant woman stands in line with other immigrants awaiting inspection.]
One doctor told Rewire.News that the care pregnant migrants are receiving while in USMS custody is negligent, but it’s hard to know where the system is breaking down. John Moore/Getty Images

This is the first article in a Rewire.News series on the treatment of pregnant migrants under the Trump administration’s “zero-tolerance” policy. Read the second article in the series here.

The U.S. public is paying increasingly close attention to the federal immigration agencies tasked with policing borders, detaining immigrants, and carrying out street enforcement. But one federal law enforcement agency has largely operated under the radar. And, advocates say, it’s committing “atrocities” against pregnant migrants.

The U.S. Marshals Service (USMS) is the oldest federal law enforcement agency in the United States. It serves as the enforcement arm of the courts, meaning it is involved in nearly every federal law enforcement initiative—including the Trump administration’s “zero-tolerance” policy.

Last summer, President Trump signed an executive order purporting to end his administration’s family separation policy. But the separation of families was just one facet of the larger zero-tolerance policy that continues today. The policy’s primary function is to ramp up criminal prosecution of people caught entering the United States without authorization along the southwest border, and it’s working.

Since the zero-tolerance policy’s implementation in 2018, there has been an increase in prosecutions, and a number of those cases involve pregnant migrants.

In fact, Taylor Levy, legal coordinator of Annunciation House, an El Paso, Texas, nonprofit that provides shelter and other services to newly arrived immigrants, told Rewire.News it appears that Customs and Border Protection (CBP) is choosing to refer pregnant migrants in Texas for prosecution. USMS is the agency helping to criminalize one of the most at-risk populations in federal custody.

“Maybe [CBP officials] have internal guidelines for who they prosecute, but if they are randomly choosing, they’re not choosing women who are two or three months pregnant. We are talking about women who are hugely, visibly pregnant, women who are seven or eight months pregnant, and women with high-risk pregnancies,” Levy said. “Why they seem to be choosing pregnant asylum seekers as their sacrificial lambs for the zero-tolerance policy, I can’t say.”

Pregnant Asylum Seekers and the Zero-Tolerance Policy

Customs and Border Protection (CBP) and the federal law enforcement agency Border Patrol are the first agencies to come into contact with asylum seekers and other migrants in the borderlands. Pregnant migrants who have presented themselves at a port of entry are typically turned over to Immigration and Customs Enforcement (ICE) by Border Patrol agents. And, according to Levy, ICE in the El Paso area is actually “pretty good” at releasing pregnant migrants from custody “almost immediately,” in opposition to the agency’s current nationwide policy requiring that pregnant people be detained indefinitely.

Pregnant asylum seekers entering the United States without authorization face an entirely different reality. They are funneled into USMS custody because, as the Trump administration has put it, they are “criminals.”

When someone enters the United States without authorization, they are subject to prosecution if their case is referred to a U.S. attorney by CBP. Under zero-tolerance, federal attorneys have been directed by the Trump administration to accept and prosecute all those cases. Asylum seekers are not exempt from being prosecuted under zero-tolerance. This means that when CBP encounters people in the borderlands who may have traveled more than a thousand miles to escape persecution or flee violence in their country of origin, rather than ushering them through the asylum process, the agency is choosing to refer them to the U.S. Department of Justice (DOJ) for prosecution.

In a statement to Rewire.News, CBP said “prosecutorial decisions are made by the U.S. Attorney’s Office based upon the circumstances presented.”

Recent data suggests an increase in prosecutions under the zero-tolerance policy. According to the Transactional Records Access Clearinghouse (TRAC), a data organization at Syracuse University, there were 74 percent more prosecutions in June 2018 than in March 2018 among the five judicial districts on the border. There were also 134 percent more CBP-referred prosecutions in June 2018 than in June 2017.

Previously, former U.S. Attorney General Jeff Sessions stated that the Trump administration’s goal was to prosecute 100 percent of the people caught crossing the border without authorization. As of June 2018, 46 percent of adults arrested by Border Patrol were prosecuted, an increase from May 2018, when less than one-third of adults arrested by Border Patrol were prosecuted.

At the same time, immigration judges are denying more and more asylum requests. Last year, in 65 percent of decisions, asylum was denied. Denial rates have risen for the sixth straight year, according to TRAC. It is important to note that not all denials result in a deportation order—for example, the applicant may have qualified for another form of relief.

But even if the administration got its way, the task of prosecuting each of the 2,200 migrants attempting to cross the border each day would be impossible. Under the current system, in which CBP picks and chooses who it prosecutes, there is an immense backlog in the immigration courts. As a result, pregnant women referred to the U.S. Attorney’s Office for prosecution are forced to remain in USMS custody longer, and this is where lapses in care can occur.

Care of Pregnant People

The U.S. Marshals Service comprises fewer than 4,000 deputy U.S. marshals, but 94 presidentially appointed U.S. marshals direct the deputies’ activities in each of the country’s judicial districts. USMS is responsible for a wide range of services—from providing judicial security to apprehending fugitives. But the federal law enforcement agency is also responsible for coordinating, scheduling, and handling prisoners in federal custody, and this includes migrants in custody as a direct result of zero-tolerance.

As of March 31, 2018, the most recent data available, 21,554 immigrants were in U.S. Marshals custody. Part of USMS’ job is to transport migrants to detention centers for ICE, for example, or to court hearings for CBP.

After CBP has apprehended a migrant for entering the United States without authorization, USMS is the agency that ensures they appear in front of the U.S. district court judge for their court hearing.

Those charged under zero-tolerance reportedly undergo mass group hearings, where a judge officially charges them with the crime of illegal entry. Almost all migrants plead guilty, and they are convicted and sentenced within minutes. Marshall Project reporter Julia Preston wrote in September that most of the people prosecuted under zero-tolerance receive lenient sentences with no jail time, but federal prosecutors “are just laying the groundwork to hit those convicts with more serious felony charges, and more serious prison sentences, if they come back.”

Asylum seekers who attempt to enter the United States without authorization undergo this same process—and this initial misdemeanor conviction doesn’t disqualify them from pursuing asylum. But many don’t understand these criminal court proceedings are different than immigration court proceedings, which is where they would pursue their asylum claim, Preston reported.

Those who do go on to pursue asylum have a tough road ahead of them.

USMS does not own or operate detention facilities. Rather, it partners with state and local governments using intergovernmental agreements to house prisoners, according to a statement the agency sent to Rewire.News. Additionally, USMS houses asylum seekers and other prisoners, in Federal Bureau of Prisons facilities and private detention facilities.

Detaining migrants being prosecuted under zero-tolerance is a “complex challenge” for USMS because it requires locating detention space near federal courthouses to facilitate court proceedings. It’s unclear how close those facilities are to hospitals, which is especially relevant for migrants with high-risk pregnancies.

Dr. Shelly (whose name has been changed out of fear of repercussions), works at a Texas hospital where detained women from nearby facilities are funneled if they are pregnant or experiencing gynecological issues. The doctor told Rewire.News that the care pregnant migrants are receiving while in USMS custody is negligent, but it’s hard to know where the system is breaking down.

“As a care provider, I don’t really know what is going on,” she said.

A bulk of Dr. Shelly’s immigrant patients in USMS custody are women in their early 20s with “no underlying health issues,” she said. There are major lapses in the care they receive, she said, and it’s unclear if it’s because the prisons detaining migrants are not allowing them to access care off the premises, or if it’s USMS failing to transport women in a timely manner.

A spokesperson for USMS told Rewire.News the agency has “no record of receiving any grievances” regarding lapses in prenatal and gynecological care in Texas where Dr. Shelly’s hospital is located.

“If a USMS prisoner has such a grievance, she has several avenues to communicate it to, including: follow the grievance policy of the facility housing her; her attorney, who in turn can contact the USMS; and write to the USMS district office or talk in person to USMS personnel when she has court appearances,” the spokesperson said in a statement.

The number of agencies operating at the border is a large part of the problem for migrants who need regular access to health care. Over the span of weeks, or sometimes even days, migrants entering the country without authorization can find themselves in the custody of four agencies: CBP, Border Patrol, USMS, and ICE. For migrants in USMS custody in the Western District of Texas, this also means being detained at one of almost 50 facilities in the area, each subject to their own care guidelines and directives.

Unlike ICE and Border Patrol, which are housed within the Department of Homeland Security, USMS operates as part of the DOJ. As such, the federal law enforcement agency does not practice the same kind of discretion utilized by federal immigration agencies, meaning that it cannot choose to release pregnant migrants facing charges under zero-tolerance, even women with high-risk pregnancies.

“The medical care, including any outside care, provided to USMS prisoners is the same that the facility uses for its other prisoners,” the USMS spokesperson said, noting that each facility would have its own agreement with a local hospital for pregnancy and gynecological care.

“The U.S. Marshals Service follows the orders of federal court judges regarding the detention of prisoners remanded to our custody,” the spokesperson added.

The initial intake for pregnant people is a murky process, explained Dr. Shelly. She told Rewire.News that she is unsure when or why it is decided that it’s time for some pregnant migrants to receive a scheduled appointment at her hospital.

A USMS prisoner health care policy directive sheds light on why pregnant asylum seekers experience a lag when accessing prenatal care. Not only does USMS have to pre-authorize all outside medical care that isn’t emergency care, but local detention facilities also have to notify the federal law enforcement agency in advance when a person in custody needs outside health care.

Perhaps more alarming, USMS purposefully delays treatment for people in custody. The agency reasons that people are only in their custody for a “short” time—less than one year, according to the directive—so “many medically appropriate, non-emergency procedures can and will be delayed until after the prisoner’s judicial status is resolved, as long as there is no serious health risk to the prisoner.” The directive goes on to say that treatment of pre-existing conditions that are “not life-threatening” are delayed until a person’s “judicial status is resolved.”

Dr. Shelly said “about half” of the patients in federal custody she sees for the first time have already been taken to the emergency room at another local hospital.

Levy told Rewire.News this is likely because they were in CBP or Border Patrol custody first, and these agencies do not have the medical infrastructure to provide care to pregnant people. CBP and BP rely on a network of local hospital emergency rooms as the first point of medical care for recently apprehended migrants, according to Levy, especially if they appear to be experiencing issues related to their pregnancies.

Levy said the DOJ often drops the charges against women forced to give birth in USMS’ custody, but releasing them isn’t a simple process. USMS has to transport a migrant who has given birth into ICE custody so that ICE can release her. Again, this is because the federal law enforcement agency cannot use discretion to release people from custody.

It’s important to note that entering the United States for the first time without authorization is a civil violation, and seeking asylum is no crime at all. Pregnant asylum seekers in Texas are held in federal custody and must sometimes endure life-threatening circumstances, according to Levy, because of the way the United States has chosen to criminalize those seeking asylum.

“Women are frequently giving birth in Marshals custody,” Levy said. “And there have been a lot of atrocities.”

In part two of this series, we discuss the treatment of pregnant migrants who give birth in USMS custody.