CBP Returns Four Disabled Children To Mexico In Violation Of MPP’s ‘Vulnerability Exception’

Customs and Border Protection (CBP) officials denied four disabled children entry to the United States on Friday after multiple attempts by the families’ attorney to appeal the cases to the Brownsville, Texas Port of Entry.

CBP supervisors responsible for determining whether asylum seekers who qualify for entry under a vulnerability exception in the Migrant Protection Protocols’ (MPP, ‘Remain in Mexico’ program) will be paroled into the United States did not provide an attorney for the families with any reason for the denials, according to Matamoros-based Charlene D’Cruz with Lawyers for Good Government (L4GG).

D’Cruz presented three families with disabled children twice at the bridge last week before she returned on Friday afternoon. This time, the attorney was accompanied by a fourth family.

Each child qualifies as disabled under the Rehab Act and should be excepted from the program, according to D’Cruz, who says that disabled asylum seekers should not be returned to Mexico by the agency according to the government’s own “Guiding Principles“.

A volunteer doctor with Global Response Management (GRM) in Matamoros accompanied Charlene to discuss the baby’s case with officials on Friday. Asked what the consequences of the child’s condition would be if he does not access long-term treatment, she answered, “He could die.”

The child has down syndrome, explained Maura Sammon, a visiting doctor from Temple University. He also as an atrial septal defect, which is a hole in his heart. Additionally, the baby has fluid around his heart – a condition called a pericardial effusion. 

D’Cruz said she wasn’t planning to present the fourth family on Friday afternoon, but GRM contacted her indicating that it was time to cross the child, who clearly qualifies as disabled under the Rehab Act and should never have been placed in the program.

Instead, two officers stationed at the international line appeared slightly annoyed when D’Cruz arrived to ask to speak with a supervisor. The agency began placing officers at the international line at ports of entry along the U.S./Mexico border in the summer of 2018 to meter the flow of people allowed across to claim asylum every day.

“Hi, how are you today?” D’Cruz asked as she approached the officers. “We’ve got four. I can give you the update on the fourth one, who is very, very sick, too. I’m asking you to please put us through to your supervisor or to port – to Mr. Ortiz,” she said, referring to Port Director Tater Ortiz.

The attorney held a paper copy of the policy in her hands with three sections highlighted. They stated that “aliens” under “special circumstances”, including those with “known physical/mental health issues” are “not amenable to MPP”.

A section of the document grants officers discretion to determine placement in removal proceedings on a “case-by-case” basis, but again states that certain factors should exclude people from MPP. “Adverse factors precluding placement in the MPP process include, but are not limited to, factors such as prior removal, criminal history, it is more likely than not that the alien will face persecution or torture in Mexico, and permanent bars to readmission,” the document states.

Precedent set in other cases D’Cruz has presented at the port should have paved the way for the mother and child, alongside the three other families, to cross with no pushback. Sammon explained, “This child today we actually have precedent on. We had a similar child who had an almost identical, though less severe condition that we were able to get across.”

D’Cruz stood on the bridge with the first three families on Wednesday for nearly two hours. The following day, she presented the families once more. CBP denied them entry two hours after they arrived at the line. 

“Alan is a sweet 10 year old boy. He is on the autism spectrum. He has a severe sensory disorder. Loud sounds, bright lights, strong smells make his so uncomfortable that he often walks around with his hands over his ears or shuts his eyes or just tries to curl up tight into a ball to avoid it all. But he can’t,” the attorney wrote in a Facebook post.

The boy’s family has been living in a tent in Matamoros for five months. D’Cruz explained that CBP placed Alan and his mother in the “hieleras” – processing centers notorious for their freezing temperatures – despite the fact she told officers her child has autism.

D’Cruz described the second child, writing, “David, 7 years old, smiles a lot. He too is on the autism spectrum. He also suffers from seizures. He is Maya and speaks a blend of K’iche and Spanish. He suffers seizures often. He has been very sick the entire time since he was in the hielera several months ago. He also suffers from anxiety and a sensory disorder.” 

Again, the boy’s mother told CBP her son had autism, but officers still put the family in the hieleras before sending them to Matamoros, according to D’Cruz. Recent reports have detailed that asylum seekers who speak Mayan languages are forced to rely on a small collection of for-profit translators, prolonging the asylum process while families continue to wait in Mexico.

The final child, a 7-year-old girl named Samy who D’Cruz described as “curious” and “friendly”, has lissencephaly – a rare disorder that causes the surface of the brain to appear smooth. “She is developmentally disabled. Her expected lifespan is 10 years. She has spent almost 1/2 of her 7th year in a refugee camp and hielera because of the MPP program,” the attorney wrote.

“CBP KNEW that she has lissencephaly and is developmentally disabled because her mother told them. Yet, she has been forced into the program.”

D’Cruz said officials at the Brownsville Port of Entry are not adhering to precedent, denying cases without telling her why despite the fact that other clients with similar and sometimes less severe, but still emergent conditions have already crossed to family members in the United States.

GRM’s executive director Helen Perry said that the officials at CBP tasked with determining these cases aren’t medical professionals. The agency may consult with its own medical staff, but those opinions have been disregarded by supervisors during past emergency scenarios, according to Perry, who spoke with The Brownsville Herald in January.

However, D’Cruz made clear that in these cases, the question of healthcare access is secondary. She said the agency should absolutely be paroling disabled asylum seekers. Not doing so, she argues, violates federal guidelines. “It’s not about whether there’s services in Matamoros,” said D’Cruz.

“This is the vulnerability exception. They do not belong in MPP. Under the Rehab Act, every single one of these children qualifies as disabled. Under the field guidelines I have right here, any known physical or mental health issues make them not amenable to MPP.”

On Friday, a CBP officer photographed the group of reporters, asylum seekers, doctors, and advocates on a cell phone for the second time in a week. Reynaldo Leaños, Jr., a border and immigration reporter with Texas Public Radio, confirmed that he, D’Cruz, and a doctor were photographed on Thursday.

“A CBP officer (Cabrrera) stood across from me, immigration attorney and pediatrician and took a photo of the 3 of us without permission & didn’t tell us why…” he wrote on Twitter. The same officer was present on Friday afternoon, with a name badge reading “Cabrera”, D’Cruz confirmed on the bridge.

Leaños said he reached out to CBP asking whether it was normal for officers to take photos of journalists, attorneys, and doctors on the bridge. He said he received a response from CBP press officer Richard Pauza, who wrote, “It is not uncommon for CBP to photograph incidents on the bridge for historical, documentary reasons.”

D’Cruz and advocates haven’t been able to figure out exactly which supervisor is responsible for deciding cases.  Officers have repeatedly declined to provide D’Cruz with the names or contact information of the supervisors directly responsible for determining the outcome of each case, the attorney said.

This time, CBP public affairs liaison Elias Rodriguez appeared at the line. He held a DSLR in his hand. D’Cruz kept conversation pleasant while she addressed the presence of the camera. “It was to intimidate and to make fun of us,” she wrote on Saturday following the incident.

D’Cruz asked the officer and his superiors to properly consider the cases. Rodriguez responded that the outcome would be up to his superiors. He offered to scan the documents so D’Cruz could keep the originals. She declined, as she brought duplicates. Earlier this month, an officer accepting documents in a blind asylum seeker’s case told D’Cruz that he couldn’t make copies of her clients’ documents because it costs taxpayer money, according to the attorney.

D’Cruz asked Rodriguez to take a look at her copy of the MPP guidelines. “Here, please – ‘known physical’ – this is what your field guide says. I’ve been here three days. And I really think that this is not a fight you want to do. It’s disabled children.”

“‘Not amenable,’” she added.

The official acknowledged the request. D’Cruz expressed her hope that either Rodriguez or another officer would come back with a positive decision for the families.

Rodriguez did not use the camera, but rather initiated a conversation with reporters, introducing himself and offering his contact information. The urgency of the matter at hand was not addressed and Rodriguez gave non-specific answers to questions from D’Cruz regarding the status of the decisions.

He exchanged jokes with D’Cruz and the doctor about the camera as he walked away. As they waited, D’Cruz spoke to the remaining officers. “We’ll wait here patiently. I’d like to know who is denying me and why. I’m not getting a reason. Usually, you guys come out and explain.”

For nearly two hours, volunteers waited with the children and parents on the bridge. Advocates held babies and comforted young mothers. 

Sammon told a team of Vice reporters filming the encounter that during a past visit, she stood on the bridge for hours in freezing weather with a sick child while officers stationed just behind the international line stood underneath a space heater. On Friday, the heater was still standing in position right next to the officers.

Rodriguez returned around 5 p.m. – roughly two hours after D’Cruz and the families arrived. He was still carrying his DSLR, according to D’Cruz, who confirmed that the official reappeared to deny all four cases without providing reasons.

Dani Marrero Hi, Digital Manager at the Texas Civil Rights Project, wrote a series of Tweets describing the scene. “Four attempts + hours later, the agents told us the request was ‘denied.’ The attorney and doctor who escorted the children and their families asked who made the decision,” she wrote.

According to the posts, Rodriguez told D’Cruz it was ‘another level higher than the port’. D’Cruz and the attorney then pressed him for details. Marrero wrote that when D’Cruz asked to get the decision in writing, the officer said she could reach out to him and he would give her a “response”, but declined to say whether it would be in writing.

“In the middle of Charlene trying to get a reasonable answer from the agent, he even told her – in a slow, condescending manner – to ‘go to www DOT cbp DOT gov’ if she wanted to know who made the decision.” 

D’Cruz briefly crossed into the United States to speak with advocates rallying in Xeriscape Park. She confirmed that officers on the bridge told her she needed to contact the port of entry in Laredo, Texas regarding the cases.

“They won’t tell me,” she answered when asked whether officers told her why CBP denied the children entry.

“Now they’re telling me it’s above the port. I said, ‘Who?’ I had to push and push, and they eventually said, ‘Laredo’. Why is Laredo making decisions for Brownsville?”

The efforts to cross the children were ongoing. “We are going to counsel clients on legal options,” she wrote in an update.

A CBP official said in a statement that “CBP is precluded from discussing individual cases for privacy reasons. All claims of credible fear are handled on a case-by-case basis. Generally, those migrants not otherwise amenable to MPP are turned over to ICE-ERO or HHS-ORR depending on the specifics of their respective cases. Those who are amenable to MPP are returned to Mexico pending their next hearing. Unaccompanied alien children and aliens in expedited removal proceedings will not be subject to MPP.  Other individuals from vulnerable populations may be excluded on a case-by-case basis.”