Access Denied

Countless women are sexually assaulted as they attempt to immigrate into the United States. What happens to their reproductive rights when they wind up in U.S. custody?
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When sexual-assault counselor Elia Alvarado first met Maria in 2007, Maria was wearing a blue prison uniform, sitting in a doctor’s office at the Port Isabel Detention Center. She was in her early 30s, but looked haggard, Alvarado recalls, older than her age. Two months and more than 1,500 miles after leaving Honduras, she had been detained at the border and taken to the immigration holding facility north of Brownsville.

Maria, a single mother, had left her 8-year-old daughter at home, she told Alvarado, and paid a man to take her to the border. Her ultimate destination, she said, was the Northeast, where a friend had promised to find her work as a housekeeper. “I went to send money home for my daughter,” she told Alvarado in a subsequent counseling session. “This was how I planned to support my family.”

Maria and several other Hondurans were guided on a journey by car and train, she said. At night, they stayed in ramshackle homes, sleeping on crowded floors. One of those nights, just before she reached the border, she said that a man grabbed her near an abandoned shack where the immigrants were staying. He forced himself on her, leaving Maria defenseless, the only witness to the violent act. Afterward, Maria blamed herself. She wondered if this was what she deserved for leaving her daughter.

Days later, as the group waded quietly through the Rio Grande, Maria carried the secret with her. It was something she planned to tell no one. Not long after crossing the river, she heard the engine of a Border Patrol truck, saw the green uniforms coming at her. Within minutes, she was corralled into the backseat of a Border Patrol pickup.

Weeks after the rape, Maria took a pregnancy test at the detention center—a mandatory procedure for female detainees between ages 10 and 50. An official from the Division of Immigration Health Services took the test away and came back to tell Maria the news: She was pregnant.

In 2008, 10,653 women were detained by U.S. Immigration and Customs Enforcement (ICE). According to agency spokeswoman Cori Bassett, 965 of those women — nearly 10 percent — were pregnant. Many of them, like Maria, were raped on their way to the United States—a journey known to be dangerous for any willing to take it, but especially so for women.

Elia Alvarado: It's not that I don't want the baby, they would tell me. It's just the way it was conceived.

For two months, while Maria awaited her detention hearing, Alvarado says they met about once every two weeks to talk about the ordeal. Maria asked about her options for ending the pregnancy. “I can’t do it,” Alvarado remembers her saying. “The baby’s face will just remind me of him—the man who did this.”

But Maria ran into a practice limiting the reproductive rights of ICE detainees. For pregnant women in immigration detention facilities, it is virtually impossible to obtain an abortion. According to Bassett, in fact, “Preliminary records indicated that during fiscal year ’08 and ’09 to date, no detainee has had a pregnancy terminated while in ICE custody.” Not a single one.

“I told her, ‘If you weren’t in detention, these would be your options,’” Alvarado says. “But while she was detained, it just wasn’t a possibility.”

It was a line Alvarado had used many times before. As sexual-assault coordinator at Harlingen’s Family Crisis Center, she had agreed to let ICE contact her when abuse victims at Port Isabel, which holds up to 1,200 immigrants, requested counseling. Because ICE does not employ such counselors, the agency depends on people like Alvarado, even though they’re not on its payroll. (The agency would neither confirm nor deny having such a relationship with Harlingen’s Family Crisis Center.)

For five years beginning in 2003, Alvarado says she counseled about 50 detainees whose rapes had resulted in pregnancies. More than half, she says, asked about ways of ending their pregnancies. Alvarado couldn’t help them. “That was just the policy,” she says.

So Alvarado talked with Maria about responsibility; Maria still blamed herself for her situation. They talked about Maria’s family in Honduras, how they would respond when she returned. Always, Alvarado says, Maria cried, but she never gave up hope of ending her pregnancy. Days after her court date, Maria—now about 10 weeks pregnant—was deported, sent on a plane back to Honduras, where abortion is illegal.

Alvarado says she heard from Maria one more time, when she called from Honduras. Her voice sounded shaky, Alvarado remembers. She was crying.

Maria told Alvarado she had found an unlicensed abortion provider and paid him to perform the procedure. When her family saw that she was bleeding, they accused her of ending the pregnancy prematurely. When Maria told them about the abortion, she said, they forced her to leave. At the time she spoke with Alvarado, she said she was living with a friend, trying to regain custody of her daughter.

Alvarado remembers hanging up the phone, saying goodbye to Maria. It was the last time the two spoke.

Along the U.S.-Mexico border, on stretches of desert and farmland trafficked by undocumented immigrants, women’s underwear is draped from the branches of trees. On a single tree outside Tucson, Arizona, an orange pair, a blue pair, and a white pair hang like grotesque ornaments among the desert’s thorny brush. Border activists and women’s advocacy groups call them “rape trees.” Each pair of underwear, they say, represents a victim of sexual abuse.

Immigrant women are told by many Latin American agencies about the danger. In some Central American communities, they’re advised to take oral contraceptives to prepare for the possibility of rape, to dress like men during the journey. The women are told they could be abused by the coyotes (guides) who take them across the Rio Grande, or by the border bandits who wait along the river, ready to pounce. They’re told that sometimes the threat comes from men in uniform. In at least two cases in the 1990s, U.S. Border Patrol agents were charged with sexually abusing female immigrants along the border.

“The message that these women hear is that abuse will happen. Not that it might, but that it will,” says Montserrat Caballero, the program director of Su Voz Vale at the Arizona Center Against Sexual Assault. “For a lot of ladies, they’re resigned to this inevitability … and for some of them, sexual abuse isn’t just a one-time incident. It happens several times before they arrive in the U.S.”

With the prevalence of rape among immigrants and the government’s increasingly stringent immigration enforcement policies, ICE’s treatment of pregnant detainees has become particularly relevant in recent years.

Medical services within ICE detention facilities, including requests for abortions, are handled by the Division of Immigration Health Services, a subagency of the Department of Health and Human Services. The division has sometimes scrambled to fulfill its growing responsibilities, since ICE was created out of the now-defunct Department of Immigration and Naturalization Services.

The joint policy of the division and ICE is to not fund elective procedures, including abortions. On its “Detainee Covered Service Package,” the division lists abortion as an example of commonly requested procedures that are “not covered but can be requested in the event of an emergency situation.” (The boldface is from the document.) “ICE must pay for the termination of a pregnancy if a physician determines that the continuation of a pregnancy is life-threatening for the mother,” says agency spokeswoman Bassett.

If the situation is not life-threatening, Bassett says, “a woman can request to terminate her pregnancy. Requests are reviewed on a case-by-case basis.” If clients can secure funding and make arrangements with an abortion provider, Bassett says, “ICE will not restrict women’s access to terminate the pregnancy … and will provide transportation to and from the facility.”

Immigration attorneys and researchers say such a scenario is unlikely, with detention centers often standing between pregnant detainees and local abortion providers and funding sources. In many cases, immigration attorneys say, no one within ICE facilities explains to detainees what their reproductive rights are. (Even Elia Alvarado, who counseled abuse victims in ICE custody for five years, says she was not aware that the detainees could have access to abortions.)

For local family planning centers and abortion clinics, ICE detention centers have remained largely impenetrable. “I have no idea what goes on inside those facilities,” says Brownsville Planned Parenthood CEO Blanca Cavazos.

“Once they’re in ICE detention, it feels like they’re lost,” says Caballero of Su Voz Vale.

Without an explanation of their rights or access to abortion providers, detainees remain especially vulnerable to ICE’s policy of not funding elective procedures.

“Because of the language and cultural barriers, this is a particularly vulnerable population,” says Brigitte Amiri, director of the ACLU’s Reproductive Freedom Project. “There’s no understanding of what [reproductive] resources there are, which effectively prohibits access to abortion.”

ICE’s policy on abortion is markedly different than that of its sister organization, the U.S. Bureau of Prisons, which requires that each pregnant inmate receive counseling to help her decide “whether to carry the pregnancy to full term or to have an elective abortion,” according to federal regulations. If a detainee asks for an abortion, the prison’s clinical director “shall arrange for an abortion to take place.”

Representatives at ICE and the health division were unwilling to explain why the two policies diverge. “It’s not appropriate for ICE to comment on the policy of the Bureau of Prisons,” Bassett says. She would not comment on whether detainees are told of ICE’s abortion policy while in custody, saying only that “ICE medical personnel are trained to handle a variety of medical conditions and situations. When care requires expertise beyond the in-house health care personnel, ICE makes sure the detainee is referred to a community caregiver.”

The answer might be found in the health division’s feeble raison d’être. In documents released by the Washington Post, one division medical director wrote that the agency’s goal is “keeping the detainee medically ready for deportation.”

The problem isn’t specific to South Texas. The repercussions of the policies restricting immigrant reproductive rights have been discussed at the national level. On Oct. 4, 2007, Cheryl Little, executive director of the Florida Immigrant Advocacy Center, testified before the U.S. House Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law about a particularly disturbing outcome.

During the hearing, titled “Detention and Removal: Immigration Detainee Medical Care,” Little told the subcommittee about an African-born asylum-seeker who learned she was pregnant while in custody. She referred to the case as an example of how “[o]fficers’ personal beliefs can … interfere with their ability to provide an effective and safe environment for female detainees.

“The pregnancy,” Little testified, “was the result of a politically motivated gang rape in her home country which compelled her flight to the United States to seek asylum. When the [Broward Transitional Center] staff learned that the pregnancy was unwanted, they purposefully delayed the woman’s release and pressured her to carry the baby to term. Only after FIAC took her case was she informed that she could get an abortion at her own expense while in custody. This woman was later released and miscarried.”

While they await deportation proceedings, pregnant women are kept within ICE’s network of detention centers, occasionally shackled en route to prenatal treatments, according to a January 2009 report from the University of Arizona.

A decade ago, pregnant immigrants were most often released on their own recognizance and asked to show up at deportation or asylum hearings weeks or months after being apprehended. The policy began to change with the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. According to the act, there is no consideration of whether individuals pose a flight risk or threat while their deportation is pending. Instead, virtually all noncitizens are detained for the entire duration of their removal proceedings. In 2007, detainees remained in ICE custody for an average of 37 days, according to a Government Accountability Office report.

Some detainees have been convicted of a crime in the United States, including a range of misdemeanor offenses, which triggers deportation proceedings. Others, like Maria, are charged with a civil violation of immigration law for entering the country or arriving at a port of entry without proper documentation. According to a 2006 report from the GAO, 58 percent of ICE detainees had not been convicted of a crime.

Unlike the criminal justice system, in which a judge determines the availability and amount of bail, noncitizens subject to mandatory detention are rarely offered bond hearings. That means pregnant detainees can spend most of their pregnancies in ICE facilities. Immigration attorneys can appeal for their release, but such appeals are seldom successful.

“The government can always make the argument that they can provide the care needed without releasing the woman,” says Meredith Linsky, director of Harlingen-based ProBAR, which provides legal services to immigrants in detention. “It’s much more difficult to get them released now than it was five years ago.” Within the last few years, the Port Isabel Detention Center has added medical facilities enabling the in-house treatment of detainees who might previously have been released, Linsky says.

Several recent reports—by the GAO, the University of Arizona and Human Rights Watch—have enumerated the ills of ICE’s growing network of detention facilities. The reports point to the hitches in the policies of the health services division, including policies affecting pregnant women.

The director of the Arizona study released in January, immigration attorney Nina Rabin, says that interviews with detainees and former detainees illustrated a clear pattern of mistreatment in Arizona detention centers. The degree of mistreatment, she says, varied from facility to facility. Numerous pregnant women interviewed were unable to place even a single call to their families for weeks after their arrival at facilities. Female detainees also reported that requests for prenatal vitamins were ignored.

ICE denies that most of the problems cited in the Arizona report exist. One of the challenges facing ICE, spokeswoman Bassett tells the Observer, is that “in some cases, this is the first health care (the detainee) has received in a long time.” She adds that “the care provided is comparable to the community standard for care.”

But in June 2008, the GAO found that the Department of Homeland Security’s complaint hotline—the primary way for detainees to file complaints—was blocked at 12 ICE facilities. A new report by Human Rights Watch, set for release in mid-February, also documents the poor treatment of pregnant detainees.

“Abortion is one of the major issues of ICE’s policy gaps,” says researcher Megan Rhoad. “Everyone gets pregnancy tests, but [ICE] doesn’t tell detainees about their reproductive rights. And even if they’re aware that the procedure is legal in the United States, they have no access to abortion providers.”

A crucial part of the government’s treatment of pregnant immigrants—one that takes place outside detention facilities—has been scarcely addressed in these studies. Attorneys in South Texas know it well: As their due dates approach, ICE often releases women on probationary status. With nowhere to go and babies on the way, ICE makes
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the women off at shelters often run by Catholic charities. Such arrangements vary on a case-by-case basis, Bassett says. “There’s no overall relationship” between ICE and local shelters, she says.

It’s a practice motivated as much by legal concerns as by humanitarian obligation, attorneys say. “They know they can’t legally detain a lawful U.S. citizen,” Linsky says. “And as soon as the child is born, it’s a U.S. citizen.”

In South Texas and beyond, ICE’s reliance on local refugee shelters run by Catholic charities appears to have grown with the number of detainees. That reliance has had serious implications for the reproductive rights of immigrant adults and minors.

La Posada Providencia's Sister Zita Telkamp

The road leading to La Posada Providencia refugee shelter in San Benito is lined with farms, fields of overgrown brush, and the occasional country home. Less than 20 miles north of Brownsville and the U.S.-Mexico border, it’s the biggest such facility in the Rio Grande Valley. Opened in 1989 as a shelter for immigrants fleeing abuse in their own countries, La Posada has provided a temporary home for Cubans, Eritreans, and even two North Korean women who snuck across the border to China, flew to Brazil, and crossed by land into South Texas. The immigrants stay in the shelter’s two dormitories, often doing odd jobs while they pursue political asylum.

Recently, La Posada has also become a popular ICE drop-off location for pregnant immigrants. In the last five years, its administrators say La Posada has housed 50 pregnant immigrants—most of them former ICE detainees. More than half, they say, were victims of rape.

In her office, Sister Zita Telkamp, a 75-year-old former school teacher and principal from Missouri, reaches for a pile of photos that tells the story. Nursing mothers hold their babies in pastel blankets. La Posada’s sisters cradle them, smiling at the cameras. Telkamp knows all the details—where the mothers came from, the circumstances of their abuse, the status of their asylum cases.

“The babies are miracles,” she says. “Each one.”

Funded with private donations and a federal grant, La Posada has accommodated hundreds of people fresh out of ICE custody. Its sisters have come from all over the United States to the quiet San Benito shelter, “imparting values which witness God’s Providence in our world,” according to its publicity materials.

La Posada provides prenatal care for pregnant women and funds hospital deliveries when their due dates arrive. But the shelter’s services are dictated by its mission as a Catholic charity, which means that abortion is off limits.

“If a woman requests an abortion, we’ll ask the diocese to recommend a good pro-life counselor,” says Telkamp, adding that such requests are rare.

For women who have already run into ICE’s restrictive abortion policy, the shelter’s stance might come as a second denial. For Telkamp, the policy is only a small part of La Posada’s mission. What’s most important, she says, is that the immigrants have “a roof over their heads, a place to go while they put their lives together.”

The connection between federal immigration agencies and Catholic charities has raised eyebrows far from La Posada. In January 2008, a 16-year-old Honduran immigrant—a victim of sexual abuse—requested and received an abortion while in the custody of Commonwealth Catholic Charities of Virginia in Richmond, Virginia. When the organization’s administrator found out about the incident, the four social workers who facilitated the abortion were fired.

Commonwealth Catholic Charities receives funding through a federal grant allocated by the Administration for Children and Families. In 2008, Catholic Charities was one of the top 10 voluntary agencies responsible for resettling refugees, according to the U.S. Department of State. The ACLU has accused Catholic Charities of constitutional rights violations, claiming that the Conference of Catholic Bishops has been pressuring its chapters to prevent undocumented minors in its care from accessing abortions.

The ACLU claims that contractors who provide care to unaccompanied, undocumented minors are “legally obligated to provide or arrange for family planning services”—an assertion the organization made in a November lawsuit attempting to acquire records related to government contractors’ policies on abortion and contraception. “The government and its contractors cannot constitutionally obstruct or prevent access to contraception and abortion for the teens in their care and custody,” the lawsuit continues. “Nor can the government allow its contractors to obstruct access to contraception and abortion based on their religious beliefs.”

In January, the ACLU filed another lawsuit against the Conference of Catholic Bishops, claiming that it had misused government funds by prohibiting abortion services. Officials at Catholic Charities disagree, calling the ACLU lawsuit “meritless.”

“It violates the longstanding principle of religious liberty to disqualify … any religious provider of social services from working with the government based on the provider’s religious beliefs,” says Bishop John Wester of Salt Lake City, chairman of the U.S. Bishops’ Committee for Migration and Refugee Services.

“We will continue to provide those services in the contract that are consistent with our belief in the life and dignity of the human person,” says Sister Mary Ann Walsh, a spokeswoman for the bishops’ conference.

Pregnant women can spend months in detention before being guided to a shelter like La Posada. By then, many of the women are approaching their due dates, making access to abortion even more difficult.

Three percent of female prisoners in Federal Bureau of Prison facilities are pregnant, according to a 2008 report by the Justice Department. In immigration detention centers, that number is nearly three times higher. With nearly 1,000 pregnant immigrants having been in ICE custody in 2008, the numbers give weight to a problem long voiced by advocates.

Rape Tree

The best solution, they say, starts with changes in enforcement policies. If pregnant immigrants are released promptly, without having to endure long, often fruitless appeals, the problems plaguing their stints in detention could be prevented.

In 2007, U.S. Rep. Hilda Solis of California and Sen. John Kerry of Massachusetts, both Democrats, introduced legislation to keep pregnant women out of ICE custody entirely. The Families First Immigration Enforcement Act was written in response to a spike in ICE raids on factories and plants in 2007. In one raid on a New Bedford, Mass., leather manufacturer, 351 undocumented immigrants were detained—four of whom were pregnant or nursing mothers. Among its recommendations, the bill suggested that ICE “release pregnant detainees on humanitarian grounds.” The bill never made it out of committee. According to Kerry’s office, it might be reintroduced after a new ICE director is named by Janet Napolitano, the new secretary of Homeland Security.

Until the enforcement policy changes, counselors like Elia Alvarado will likely continue seeing a stream of pregnant detainees. After five years of counseling, there are more than a few cases that haunt Alvarado. She has treated victims of rape and torture from four continents, she says. She worked quickly, shuttling among three South Texas detention facilities housing 4,200 detainees, always with the knowledge that her clients could be deported overnight.

In October, Alvarado was laid off from Family Crisis Center and stopped working with ICE, but she still thinks about the horror stories. The woman assaulted by African paramilitaries. The three Mexican women living in sexual slavery just south of the border. The girls from South and Central America, raped on their journeys to the United States.

When Alvarado recounts those stories now, she makes an effort to string together a single narrative, linking the women by their shared responses to abuse. It was only a matter of time, she says, before they turned against themselves, cursing their decisions to immigrate. Among some pregnant detainees, that self-hatred was exaggerated.

“‘It’s not that I don’t want the baby,’ they would tell me,” Alvarado says. “‘It’s just the way it was conceived.’”

She looked them in the eyes. She touched them. “If you get out of detention,” she would say, again and again, “we can talk about your options.”

Kevin Sieff is a reporter for the Brownsville Herald.

Investigative reporting for this article was supported, in part, by a grant from the Open Society Institute.