Fleeing violence in Mexico, one Honduran family decided to cross into the U.S. illegally last month and turn themselves over to Border Patrol agents in the desert near San Diego.
The father and son were immediately returned to the border and told to walk back to Tijuana, but the mother, who was pregnant, was in pain. So Border Patrol agents took her to a nearby hospital, where she gave birth.
Two days later, the mother was given a choice: Go back to Mexico with or without her newborn, who is a U.S. citizen by birthright.
"That's not a choice. That's not a legitimate choice," said Mitra Ebadolahi, an attorney with the ACLU of San Diego and Imperial Counties. She said the mother and the baby returned to Mexico.
"These people — both the mother and the father — were literally driven in a patrol vehicle to the border and forced to walk across into Mexico, by armed agents. I don't see choices there," Ebadolahi said.
A Border Patrol spokesman said the mother has no "legal right" to be in the United States and that the mother could have simply chosen to turn her newborn son over to child services in California.
Immigrant advocates in San Diego say this isn't the first time the Border Patrol has tried to separate a mother from her newborn. Last December, immigration lawyers say an asylum-seeker was told she'd be sent back to Mexico without her U.S.-citizen child. Her lawyers intervened to stop the separation, and the mother was allowed to pursue her asylum case from inside the U.S.
The Honduran family had crossed the Rio Grande in Texas earlier this year and tried to claim asylum in the U.S. Under the "Remain-In-Mexico" program, they were given a March court date and told to wait in Mexico. After they say they were robbed at gunpoint in Monterrey, they moved to Tijuana.
Since the pandemic ramped up in March, the Department of Homeland Security has closed the border to nearly all asylum-seekers based on an order from the Centers for Disease Control and Prevention. In June alone, the U.S. turned back more than 27,000 migrants after they were screened and fingerprinted.
"The CDC was very clear with us," Acting DHS Secretary Chad Wolf said when he visited the San Diego border in May. "We needed to make sure we do not house these individuals in our facilities, both for our workforce protection and the protection of our DHS officers, the protection of the American people, and the protection of other migrants.
The ACLU's Ebadolahi says the case of the Honduran family could have been handled differently.
"There are mechanisms in place, there's authority for the agency to parole family units into the United States, where they can pursue their asylum claims safely and in a humane way, without separation, and without additional trauma,' she said.
The ACLU, along with Jewish Family Service of San Diego, filed a complaint with the Department of Homeland Security's inspector general on Friday. They say the family was denied their legal right to an interview to determine if they were in danger in Mexico. The organizations asked Customs and Border Protection to allow the family to enter the U.S. to continue their asylum claim.
Luis Gonzalez, an attorney with Jewish Family Service, said that just because the law isn't clear doesn't mean the family should automatically be sent back to Mexico.
"It leads to really difficult situations like the one we are witnessing right now," he said. "This could have been resolved by DHS exercising their discretion to parole the entire family together into the United States."
The family has since reunited in Tijuana, where they remain in a rented apartment. The mother hasn't been able to access care in Mexico because local medical professionals are stretched thin by the coronavirus pandemic.
Last month, the Trump administration extended the turnback policy along the southern border indefinitely.
