Immigration Officials Push Health-Care Providers to ‘Clear’ Pregnant Migrants for Detention

"It is becoming too common that doctors feel like they have to risk their position or their job in order to do the right thing."

[Photo: A doctor filling out a patient discharge form.]
“From a practical standpoint, we simply don’t have the legal purview to be writing a letter that clears someone to be detained,” said one provider. Shutterstock

Multiple times a month, U.S. Border Patrol arrives at Banner-University Medical Center Tucson with “noticeably pregnant women,” according to an OB-GYN resident who works there. The hospital’s obstetric triage department is essentially an emergency room for pregnant people, and officers with the federal immigration agency regularly bring in newly apprehended pregnant migrants for medical evaluations. Once the hospital visit nears its end, multiple health-care providers have said Border Patrol “pressures” them to provide a “cleared for detention letter.”

“Because they are bringing these women to us almost directly from the border, inevitably we get asked for a letter because when [the pregnant migrants] leave the hospital, they are going to be detained,” said Dr. Samantha Varner, the OB-GYN resident. “Basically they ask us to write these short letters that don’t just say the person is ‘fit for travel,’ but that they are ‘cleared for detention,’ meaning they are ‘healthy’ enough to be detained.”

Varner told Rewire.News in a May 20 phone interview that Border Patrol seems to be asking her to approve of a person’s detention after they leave the hospital, or rather that the agency wants a health-care provider to put into writing that a migrant is “fit” for detention.

“I feel like [they are] asking us to sign off on allowing [immigration authorities] to do whatever they want with the person after they leave the hospital,” Varner said.

Rewire.News spoke with four health-care providers at Banner, and Varner was the only one willing to use her real name.

The health-care providers confirmed that the obstetric triage department is not the only unit receiving Border Patrol’s request for letters clearing migrants for detention. Staff working in the trauma department and the hospital’s emergency room have also received these requests to “clear” migrants for detention who were experiencing health emergencies like renal failure.

“At least once a week a doctor is writing one of these letters,” Varner said. “People come to us in such bad shape, like 45-year-old men in [immigration] custody who are dying from the flu, but Border Patrol is still at the hospital asking for a letter clearing them for detention.”

The New York Times’ Sheri Fink touched on these letters in a piece this week about the ethical lines health-care providers in border states must navigate with federal immigration agencies. The health-care providers who spoke with Rewire.News confirmed the practice, saying it violates the oath they took to “do no harm.” More broadly, the practice raises concerns about the lengths Customs and Border Protection (CBP) and Border Patrol agents will go to criminalize migrants, including interfering with their medical care.

“It’s a Battle”

Varner told Rewire.News that recently, a young pregnant woman from Guatemala was picked up near the border. She was dehydrated, in labor, and brought by immigration officials to Varner’s hospital. The young woman delivered her baby and was fine, but two days later when Varner was going to discharge her, federal immigration authorities asked Varner to provide a cleared for detention letter for the new mother.

“I thought, ‘Are you insane?’ There was no way I was going to do that,” Varner said. “It’s unethical, but it’s also just not smart. What if she had a delayed postpartum hemorrhage in detention and she bleeds to death, and I’m the OB-GYN who cleared her for detention? I was so shocked they even asked.”

Varner said she has had an “ethical issue” with cleared for detention letters since she began her residency in 2016. Often, Border Patrol agents will say the letters are a mere formality or a “non-issue,” explaining that their agency will simply “process” pregnant migrants out in a day or two.

In reality, migrants in Border Patrol processing facilities are held for increasingly longer periods of time in unsafe conditions that are over capacity and lacking in medical infrastructure. Even if the agency does quickly process a person, they are then often transferred to Immigration and Customs Enforcement (ICE) or U.S. Marshals Service (USMS) custody. A Honduran immigrant gave birth to a stillborn in ICE custody in February, and Rewire.News’ recent three-part series on USMS revealed the dangerous conditions pregnant people are subjected to in the federal law enforcement agency’s custody.

Varner said every time she refuses to write a cleared for detention letter, it’s a “battle.” Sometimes, frustrated Border Patrol agents request to speak to her supervisor.

“They’ll say, ‘Ma’am, ma’am, we’re only asking for this one thing.’ But I won’t do it because I don’t know where they are taking her, or what they will do with her. They could put her in a cage under a bridge for all that I know,” Varner said.

Residents like Varner are usually the health-care providers who receive the request from Border Patrol officers because, as one of the doctors explained, they are the ones in charge of a detained patient’s discharge paperwork. When Rewire.News reached out to the agency with several questions pertaining to the letters, an agency spokesperson only provided a link to CBP’s National Standards on Transport, Escort, Detention, and Search. But the standards don’t reference cleared for detention letters.

There is a portion that says, “Once a detainee is at a medical facility, medical practitioners make all medical decisions which may include medical release or fitness for travel.” Nowhere do the standards say that health-care providers are required to put this in writing.

Rewire.News was unable to confirm whether Border Patrol is asking for these letters in states other than Arizona. Mary Kenney, directing attorney of litigation for the American Immigration Council, said she has never seen a cleared for detention letter, but told Rewire.News there are “huge amounts of autonomy with different Border Patrol sectors.” What’s happening in Arizona may not be happening in Texas, she explained.

Kenney is part of the team behind Doe v. Johnson, a class action lawsuit filed by attorneys on behalf of three individuals subjected to “deplorable detention conditions” in CBP holding cells in Border Patrol’s Tucson sector.

For her part, Varner has been pushing for health-care providers at her hospital to end the practice of writing cleared for detention letters. In response, her department worked with the hospital’s legal team to provide Border Patrol with an alternative to a cleared for detention letter. It reads, in part:

Ms. ____ is stable to be discharged from Banner University Medical Center at this time. As with any medical condition her status may change at any time without a clear sign or symptom. Should she have a change in her status we recommend that she present for evaluation immediately.

Her discharge from this facility and this letter should not be construed as any form of approval for detention or any other type of treatment within Customs and Border Patrol or Immigration and Customs Enforcement custody.

But the letter cannot help in situations where pregnant migrants are subjected to harmful conditions in detention, and Varner says it certainly hasn’t lessened pushback she and her colleagues receive from federal immigration agencies.

Policies That Harm

Jenny Roberts (a pseudonym) also works at Banner. She told Rewire.News that she chose the southern Arizona hospital for her residency because she wanted to be in a border state after the election, but she’s been “astounded” by how much red tape there is when it comes to providing care for immigrants.

“People are coming from terrible situations, and a lot of time, hospital policies worsen the situation,” Roberts said. “At the hospital, so many of these situations are occurring where there are no clear guidelines, where we’re not clear on what we can tell Border Patrol to do and not do. It’s unclear what our rights are in how to navigate these agencies. It’s creating this atmosphere where health-care providers feel afraid to do the right thing.”

The situation is especially dire for pregnant patients. Varner said CBP seems to only refer visibly pregnant women to her hospital, raising questions about the medical care those early in their pregnancies are receiving—including the option of abortion care. But the agency is also just generally failing pregnant people, Varner said.

“When we see pregnant women in custody, we do a lot of testing, and the results can take weeks to get back. It’s a real problem because we get started on all of these things, but then we never see them again,” Varner said.

Varner told Rewire.News that CBP likes to remind health-care providers at her hospital that the agency only “processes” pregnant migrants; it doesn’t detain them. Varner said it leaves her with more questions than answers, like how do you track down a detained patient if they had a positive lab finding? Are detained patients getting prenatal care wherever they are? Sometimes detention centers are an hour away from a hospital. What happens if something goes wrong with a detained patient’s high-risk pregnancy?

Pregnant people in federal immigration custody are often powerless against their circumstances. Therefore, a migrant’s last line of defense against a federal agency’s misuse of power is their health-care provider, but Kathryn Hampton said this is a problem in and of itself. Hampton coordinates Physicians for Human Rights’ Asylum Network Program, and she is one of the authors behind the new report Not in My Exam Room, which delves into the many ways that immigration enforcement is obstructing medical care.

“Providers shouldn’t be put in this position in the first place,” Hampton said. “Their job is providing evidence-based care according to the medical standards of their practice and to do so in an ethical manner. It is becoming too common that doctors feel like they have to risk their position or their job in order to do the right thing. It’s so wrong.”

While Varner and other health-care providers are pushing back, some are not—and it’s putting migrants’ lives at risk.

Erin Lacey (a pseudonym) is a health-care provider at a migrant shelter in southern Arizona. Recently, a woman in ICE custody was sent to Lacey’s shelter by the federal agency so that she could recover.

Initially, ICE thought the 21-year-old was pregnant because of swelling in her stomach, but it turned out to be a benign tumor. According to Lacey, the woman had gone through “an incredibly intense surgery” in Phoenix, and even though she was in a weak state and not fit to travel, a doctor at the hospital in Phoenix wrote not one, but two letters clearing her for detention.

“Both of the letters cleared her for detention, but the second one had amended language. It was really short, maybe one paragraph. It essentially said, ‘This person was under my care, and she is now medically cleared for detention,’” Lacey told Rewire.News. “I was horrified.”

“She had to stay with us for a very long time, longer than people usually do, because it wasn’t safe for her to travel; she wasn’t stable enough,” said Lacey. “But this doctor still wrote these letters—and even with the letters, ICE ultimately made the decision to let her stay with us. Even the agency could see she was in a fragile state. She also spoke an indigenous language and it seems like most of the interpreting done for her was in Spanish. She received so many levels of inferior care.”

Lacey said it’s hard to know what the doctor who wrote the cleared for detention letters was thinking. Did they know the woman would be released to a humanitarian group, or were they under the impression she would immediately return to detention? Did they ask any questions about what would happen to her? Did they care?

Hampton said providers have a lot of “ethical imperatives” that aren’t captured in legal framework, but all medical providers take an oath to “to do no harm.”

“The obligation of beneficence is so important. Hospitals need to be supporting and guiding providers to use the highest ethical standards—that’s what everyone wants. No one wants unethical doctors. So there needs to be real, technical guidelines in hospitals for how to deal with immigration issues when they arise,” Hampton said.

Dual Loyalty

Complicating matters further are what some care providers see as “blatant conflicts of interest.” If a hospital has a contract with federal immigration agencies to provide care to detained people, they see it as a conflict of interest.

Banner did not respond to Rewire.News’ request for comment by publication about whether it contracts with federal immigration agencies to provide care to detained people. A spokesperson for Banner Health, the health system running the university medical center, did tell Rewire.News in an emailed statement that hospital administrators are meeting with the Border Patrol Tucson sector leadership on Wednesday “to make sure that both Banner-University Medical Center Tucson and Border Patrol have policies in place that uphold the highest standards of patient care, safety, and privacy.” The spokesperson added that it is of “high importance” to the organization that “staff and providers feel supported and safe.”

Conflicts of interest come into play often with federal immigration agencies. At the U.S.-Mexico border, Varner said CBP agents are certified to operate as an ambulance and transport patients. CBP employs them, but they are given the responsibility to provide the fastest route to the best medical care possible.

“What comes first, punishment or health care?” Varner asked, questioning whether the agency can be trusted to take the fastest route to the best possible medical care. “The punitive approach of CBP puts punishment first and health care second. When Border Patrol asks us for these letters, it puts us in a situation of dual loyalty. These letters are like a favor for Border Patrol, but my loyalty is not with Border Patrol. My loyalty is with my patients and their health.”

Lacey told Rewire.News that “under no circumstances” would she ever write a letter clearing a person for detention. Morally and ethically, she doesn’t believe in the practice of detention and would not facilitate someone being detained, she said. But it’s also her feeling that Border Patrol and other federal immigration agencies are trying to obtain these letters for legal reasons, to absolve themselves of responsibility should a detained person become gravely ill or die in custody. Responsibility could then be placed on the doctor who put it in writing that the person was “fit” to be detained.

“From a practical standpoint, we simply don’t have the legal purview to be writing a letter that clears someone to be detained,” Lacey said.

The providers also explained that cleared for detention letters don’t align with their obligation to consider social determinants of health, which are circumstances that contribute to overall health. For example, Varner said that if a homeless patient is in a wheelchair after an amputation, her hospital wouldn’t discharge them onto the street because living on the street after a major surgery would adversely affect the person’s health. The resident said hospitals also need to begin thinking of the social determinants of health for migrants.

“Irregular migration status impacts a person’s health, and so does detention. A lot of people die in detention each year, and we’re now seeing previously healthy children die in detention,” Varner said. “If my hospital has a contract that puts health-care providers under some obligation to Border Patrol to discharge patients and clear them for detention, where we know health-care infrastructures are poor and health outcomes are bad, that’s unethical. CBP shouldn’t ask us to write these letters. It’s shameful, and it’s shameful that doctors are complying.”