By Cristina Costantini
September 21, 2011
“When I was in bed, I was begging the sheriff, ‘Please let me free — at least one hand,’ and he said, no, he didn’t want to,” Juana Villegas said in an interview with a local Nashville television station. She was describing the experience of being shackled to her hospital bed as she went into labor. Villegas gave birth in the sheriff’s custody, after she was stopped by local police while driving without a valid license.
According to Elliott Ozment, Villegas’s lawyer, driving without a license is generally handled with a citation, not an arrest. He believes Villegas was only brought in because she was an undocumented immigrant.
Like Villegas, Alma Chacon, and Miriam Mendiola-Martinez gave birth in the United States shackled to their hospital beds, without their husbands, and in the presence of a prison guard. They also were not violent criminals, but rather, they were all undocumented and charged with an immigration-related offense in Sheriff Arpaio’s jurisdiction of Maricopa County, Arizona.
Cases such as these have garnered outrage from immigrant rights advocates. Critics take aim at both the legal classification of immigration-related offenses and the standards of prioritizing undocumented mothers’ rights at the state and federal level.
VICTIMS OF A BROKEN SYSTEM
While many immigration violations are civil cases, ICE classifies some undocumented immigrants as criminals when they are apprehended for certain immigration-related offenses. One of those is “re-entry after deportation.”
“To ICE, re-entry after deportation is not an immigration case, that is a criminal case,” explained Michelle Brané, director of the Detention and Asylum program at the Women’s Refugee Commission. “They’ve criminalized being undocumented; the act of entering after being deported is now a crime. You’re in the criminal system, and ICE will say they don’t have any authority over it,” Brané said in a phone interview with HuffPost LatinoVoices.
Although the Bureau of Prisons instituted an anti-shackling policy in federal correctional facilities in 2007, state correctional facilities are still free to shackle inmates before, during and after child delivery if they see fit.
Shackling during childbirth is illegal in 14 states and is against U.S. Immigration and Customs Enforcement (ICE) policy. But women being held for immigration-related offenses classified as “criminal offenses” can still legally be handcuffed to their hospital beds by state authorities in the 36 other states. Those women can also be denied the right to have a family member in the birthing room, or to hold their newborns for longer than 24 hours.
Malika Saada Saar, executive director of The Rebecca Project’s Anti-Shackling Coalition, believes that state authorities should take into account the circumstances under which pregnant women with undocumented status are put in behind bars. “These mothers are not prosecuted criminals, but simply mothers detained for lack of documentation,” Saar said in a phone interview.
Miriam Mendiola-Martinez gave birth to a baby boy on Dec. 21, 2010, in Maricopa County, Arizona. She did so chained to her hospital bed and without any family members present. Mendiola-Martinez had been found using false documents in order to obtain work.
Her newborn son was taken from her within 48 hours of his birth and given to a family member, according to an interview Mendiola-Martinez gave to New American Media. Her attorney, David Black, said in the same interview that if Mendiola-Martinez had not been undocumented, she could have been released on bond before she gave birth, as is the case with women charged with other nonviolent crimes. Under Arizona state law, however, possession of false documents is grounds for denying the right to post bail.
Alma Chacon and Juana Villegas, while residing in Arizona and Tennessee respectively, gave birth under similiar circumstances. Chacon was detained for a non-violent criminal offense and shackled to her hospital bed. Chacon was allegedly not allowed to nurse or hold her baby until she was released from immigration custody almost 70 days later when she gave birth in .
For Juana Villegas, going into labor while in prison meant that her ankles were cuffed together on the ride to the hospital, and that she was denied a breast pump by local authorities after she was given one by medical professionals. Without a breast pump, “she was in great pain” after she gave birth and had trouble sleeping in prison, Ozment, her attorney, said in a phone interview.
WATCH: Villegas tells her story
Villegas has since been awarded $200,000 for her mistreatment by local authorities, and Chacon’s case has been part of an investigation by the Department of Justice concerning the role of local agencies in federal immigration proceedings.
MORE THAN HANDCUFFS
Human rights advocates like Mallika Dutt believe that abuses of undocumented pregnant women by state enforcement agencies include more than shackling. Last week, Dutt’s advocacy group,Breakthrough, released a documentary that highlights the experience of one such victim. The protagonist, referred to in the film as ‘Maria,’ says she was mistreated by state officials, border patrol agents and even medical professionals when she went into labor at a traffic stop four years ago.
In the short film, “Checkpoint Nation?,” Maria explains how she was stopped with her husband and two U.S.-born children in Tucson, Ariz., in December, 2007.
Isabel Garcia, an attorney and advocate from Tucson’s Derechos Humanos organization, said in a phone interview that the family was stopped for “no reason aside from their race.”
Tuscon police spokesmen maintained in an interview with the Associated Press, however, that the family had been stopped as part of a “random license plate check,” which indicated that insurance on the vehicle was suspended. When Maria’s husband failed to produce a valid driver’s license and admitted to being in the United States without documentation, authorities called the Border Patrol.
Maria claims to have been pushed forcefully by a local enforcement agent into a Border Patrol car, causing her water to break. Shortly thereafter, she went into labor. She says that she was then accused of faking contractions, and told that she was going to be deported back to Nogales, Mexico, before she had the baby. She was not allowed to be with her husband as she gave birth and he was deported within the week.
WATCH: Maria’s story in “Checkpoint Nation?”
A Border Patrol agent was stationed in the birthing room, and Maria claims that as she was in labor, he continued reminding her that she would be returning to Mexico as soon as her son was born.
“I’ve got this agent right next to me. La migra is by my side as though he was my husband. He was saying to me, ‘Come on, push, push, because you’re going to Mexico with the baby.’ It was a nightmare,” Maria says in Spanish in the short film.
“We talk about cops in other parts of the world, and we say ‘Oh, they don’t respect human rights,'” Breakthrough’s Dutt said in a phone interview. “But where are we now? If something as important and sacred as someone giving birth can no longer be treated as human, where are we?”
After giving birth, Maria was deported to Mexico. A few weeks later, she crossed the border again, to be with her two older children who are U.S. citizens — this time with her newborn child. Crossing the desert with her baby, she says, took seven days.
FEDERAL VS. STATE RESPONSIBILITY
With hundreds of state agencies working to uphold federal immigration law, things can get messy. Detention standards for immigration cases are made up of a complex patchwork of individual contracts between state and federal agencies. ICE rents bed space from 250 different state facilities around the country, and detains about 33,000 people at a time, according to ICE spokeswoman Gillian Christensen.
But if women like Villegas, Chacon and Mendiola-Martinez are abused under state purview, can ICE be held responsible?
Brané, of the Women’s Refugee Commission, claims that although ICE policy includes language about the treatment of pregnant women, it’s not “proscriptive” or “legally binding.”
“They say, our policy is that we don’t shackle women, but they don’t say ‘Don’t shackle women,’ and they don’t hold anyone to it,” Brané said.
While most of the cases that have garnered media attention have occurred under the purview of local authorities, Brané says that ICE should specifically be held accountable in “detainer” cases — those in which ICE has the authority to specify that pregnant women not be detained. Local enforcement agencies often hold individuals for a 48-hour detainer period in order to allow ICE to decide whether or not it wants to assume custody.
In the past, Brané says, if a woman went into labor during the detainer period, her case would be handled by local law enforcement agencies, and she would be vulnerable to the policies of state agencies. However, she believes that in accordance with recent prioritization memos, ICE should ensure that detainers are never placed on pregnant women to begin with.
“One of the shortfalls of ICE is that they won’t push local authorities enough — they’re very happy to wash their hands of things, and say, ‘That happened under local authority, not our authority.'” Brané said. “If you know someone is interpreting your request in a way that is illegal — just like with racial profiling — I think you have a responsibility to clear those ambiguities up.”
Aggie Hoffman, an immigration attorney in Los Angeles, believes that abuses of pregnant women seem to occur when “local law enforcement agencies act either out of ignorance of immigration proceedings or because they were not properly trained.” She also believes ICE must work harder to hold local law enforcement accountable for such abuses.
Christensen, the ICE spokeswoman, said in a statement that “it is against ICE policy to use restraints in medical situations, absent extraordinary circumstances.” Furthermore, she says that “guidance issued to the field in ICE Director John Morton’s June 2010 Civil Enforcement Prioritiesmemo directs agency personnel not to detain pregnant or nursing women, unless they are required by law to be detained because of the severity of their criminal history or other extraordinary circumstances.”
Hoffman, like Brané, hopes that this memo “will help close the information gap” between state and federal law enforcement agencies, and will end treatment of pregnant women that appears “devoid of humanitarian considerations.”
Villegas, one of the undocumented mothers shackled before and after she gave birth, was interviewed by the Nashville Tennessean in August, 2008. “I don’t know that much about the law or any policy,” she said, “But this … it does not seem right.”