In the silent early morning hours after the birth of her son Gael, Juana Villegas did what most new mothers do. She tried to rest. She checked often to make sure the baby was breathing peacefully. She watched his tiny fists curl and uncurl as he slept in his bassinet.
Then she did what most new mothers never have to do: move inch by inch so the clanging of her prison leg irons would not wake her newborn child.
Villegas hadn't sold drugs. She hadn't stolen property or committed a violent felony. But she didn't have a green card, and had been deported once before because of it. Because of this, she was subject to detention without bond, forced to go through labor in chains, and then separated from her baby.
That was six years ago. The newborn is now in first grade. And last week, Villegas learned that she is no longer undocumented. She is now entitled to live and work in the U.S. until she applies for permanent residence and ultimately American citizenship.
In a bitter irony, she might not have received her new status if not for her 2008 ordeal.
U Nonimmigrant Status, better known as the U-Visa, is available to noncitizen victims of criminal activity who help government officials in investigating or prosecuting crime. To qualify for this form of legal relief, Villegas had to demonstrate to United States Citizenship and Immigration Services, the bureau of the Department of Homeland Security that handles immigration issues, that she suffered substantial physical or mental abuse as a victim of criminal activity that violated the laws of the United States.
The perpetrator was the Davidson County Sheriff's Department.
Villegas garnered national attention in 2011 when she sued the department for shackling her hands and legs during labor with her son Gael. Based on Villegas' description of the events surrounding Gael's birth, federal Justice William Haynes found prima facie evidence that Villegas was the victim of a crime — conspiracy by the sheriff's department to deprive her of civil rights under color of law — and signed an order recommending the approval of her U-Visa petition.
According to Villegas' attorney, immigrant rights advocate Elliott Ozment, this was the first case in history in which a federal judge entered an opinion certifying a U-Visa for an immigrant based on prima facie violations of that immigrant's civil rights and conspiracy to violate those civil rights.
Recent headlines have illuminated the plight of migrant families detained at the U.S. border with Mexico. But controversial treatment of immigrant women and children by the United States government is nothing new. Cases like Villegas' show that Immigration and Customs Enforcement has not always adhered to its own policies in regard to nursing mothers — a group of immigrants the government claims to want to protect.
Gael's birth wasn't supposed to happen the way it did. On July 3, 2008, Villegas was driving home from a prenatal appointment and made a wrong turn. Berry Hill Police Officer Tim Coleman stopped her, and when he saw that she did not have a driver's license, he arrested her.
Ordinarily, Villegas would likely have received a ticket and been released. But in 2008, under Davidson County Sheriff Daron Hall, Metro Nashville was a participant in the Immigration and Customs Enforcement's 287(g) program, a federal/state partnership initiative that authorizes local law enforcement officers to enforce federal immigration laws.
Suspecting that she was an undocumented immigrant, Coleman took Villegas to Nashville's Women's Correctional Development Center. She was incarcerated there along with the general inmate population. Villegas was nine months pregnant.
On July 5, 2008, after being held at the detention center for two days, Villegas' water broke. She began to go into labor. According to court documents, sheriff's deputies did not release her, nor did they allow her to call her husband. They handcuffed her, shackled her ankles together with leg irons, placed her on a stretcher and drove her to Metro General Hospital.
In details taken from the court record, two male deputies came into Villegas' private room and monitored her as she undressed and put on a hospital gown. When medical staff asked the deputies to uncuff her for her obstetrical examination, they refused. A physician wrote a "no-restraint" order, which the deputies disregarded. Villegas' right arm and left leg were shackled to the hospital bed throughout the exam and active labor, until a sympathetic deputy broke department protocol and freed her from the restraints. He kept them off during the actual birth and for a few hours afterward, but replaced them when his shift ended.
The practice of post-partum "rooming in" was designed to facilitate bonding by keeping mothers and infants in close contact after birth in the hospital. Just feet apart, Villegas and her newborn son should have been within arm's reach of each other all night for instant feeding or snuggling.
Instead, Villegas remembers, "I tried not to move. When the baby was asleep, I didn't want to wake him up because he would cry, and I wouldn't be able to walk with him or to rock him, rock his little cradle."
More than five years later, speaking in Spanish through a translator in Ozment's office, Villegas is still emotional when recalling the experience.
"The worst part is that they shackled my ankles together when I got out of bed to use the bathroom," she says. "I couldn't walk. The nurses asked the police officer to remove the shackles so that I could walk. She wouldn't remove them. She wouldn't even remove them so that I could use the bathroom, bathe or change clothes. The nurses said that I needed to walk. I couldn't walk. [I] had to stay in bed with my left leg shackled to the bed. I couldn't move around. [I] had to nurse the baby in one position."
After 36 hours in the hospital, deputies took Villegas away from Gael and returned her to jail. When nurses offered Villegas a portable breast pump to prevent infection and other problems likely to result from unrelieved milk engorgement, deputies refused, saying that breast pumps are not "critical medical devices."
After her release, Villegas brought a Section 1983 suit against Davidson County, alleging that the government's "deliberate indifference to [her] serious medical needs ... during the final stages of her labor during her pregnancy and post-partum recovery" had violated her rights under the Due Process Clause of the Fourteenth Amendment.
In an Initial Expert Report filed in the case, obstetrician Sandra Torrente graphically explained the cascade of medical complications that can result when a lactating mother is separated from her nursing baby.
A woman's milk let-down starts a day or two following delivery of her child, she testified. If a woman is unable to express her milk for several days, because she does not have access to her child or to a breast pump, the woman can develop engorged breasts and mastitis. Mastitis is an infection of the breast tissue that can result in severe breast pain, swelling, significant fever, rigors and chills.
The best cure for this condition — and that which is normally prescribed — is for the mother to express her milk utilizing a breast pump. Antibiotics may also be prescribed to battle the infection. Either way, when a woman's breasts become engorged in this way, they become rock-solid. The pain is excruciating.
"That night, my milk came in. ... My breasts were very painful," Villegas says, haltingly. She does not like to remember her time in jail after giving birth to Gael. "In the jail cell, my cellmate, I don't remember her name ... helped me to massage my breasts to expel the milk. I was in so much pain. I couldn't sleep. I asked for a Tylenol. They gave me a multivitamin."
Without her newborn to nurse, and denied a breast pump and pain medication, Villegas lay motionless, face up on the bed, so her painful breasts wouldn't brush against anything. Her main concern, she remembers, was who was taking care of her son.
In 2008, the nonprofit Human Rights Watch did a comprehensive study of detention facilities. None of the five nursing mothers interviewed as part of the study was offered the option of using a breast pump in jail, even though both the American Academy of Pediatrics and the World Health Organization recommend that infants be exclusively breastfed until the age of approximately 6 months.
A spokesman for Immigration and Customs Enforcement says the agency will not detain a breastfeeding immigrant mother unless she poses a threat to national security or public safety or the detention is mandated by statute.
"[ICE has] an extensive process in place regarding nursing mothers," writes Bryan Cox, ICE public affairs officer for the Tennessee region, in an email to the Scene.
But from New England to California and in between, the practice has persisted in federal immigration enforcement and at state level under the auspices of 287(g) and other state-federal cooperative agreements.
In March 2007, hundreds of federal agents raided a textile factory in New Bedford, Mass. They arrested 361 undocumented immigrants, including several pregnant women and nursing mothers. Following the detentions, then-Sen. John Kerry of Massachusetts condemned ICE's actions in a public statement.
"Better preparation was urgently needed for the unintended consequences of [the] raid," Kerry said. "There's no need to separate dozens of young children from their parents — many of whom are the sole caregivers — without a backup plan. That's a false choice that could have been avoided. The illegal hiring practices of companies that break the law should not twice victimize innocent children."
But just eight months later in October 2007, federal immigration agents were searching a house in Ohio when they encountered Honduran mother Saída Umanzor nursing her infant daughter. According to The New York Times, agents took 9-month-old U.S. citizen Brittney Bejarano out of her mother's arms and turned her over to social workers.
Brittney, whose diet had consisted solely of breast milk since birth, refused to take infant formula or any other nourishment for three days after being separated from her mother. Umanzor suffered from unrelieved milk engorgement until a Latina women's support group managed to get a breast pump delivered to her on her third day in jail.
One month after Umanzor was separated from her child, Julie Meyers, then-assistant secretary at ICE, issued a memo instructing field agents that nursing mothers should be released unless they are considered to be threats to national security, public safety or their detention is statutorily mandated. The memo specified that "discretion should be employed to avoid making arrests of nursing mothers for civil immigration law violations" — i.e., women whose only crime is their undocumented status.
The 2007 Meyers memo directed that the decision to detain nursing mothers "must be reported up through and cleared by the chain of command." Furthermore, it instructed that "if a nursing mother is detained, it is encouraged that the unity of the mother and child is maintained through the use of residential centers or state social service agencies."
In a 2008 letter to the director of an immigrant legal advocacy group, ICE director of the office of policy Susan M. Cullen wrote, "ICE has provided written guidance to our field agents and officers to exercise prosecutorial discretion in regard to nursing mothers, instructing them to consider the conditional release of such immigrants pending the results of their immigration removal hearings."
ICE also maintains that it "fundamentally reformed" 287(g) after the partnership program underwent an extensive review in 2009. On its website, the agency asserts that it improved oversight of the program, issued comprehensive guidelines for ICE field offices that supervise 287(g) partnerships, strengthened the basic training course for 287(g) officers and deployed additional supervisors to the field to ensure greater oversight over program operations.
All of this, the agency says, was geared to "ensure enforcement efforts remain focused on criminal aliens, particularly those who pose the greatest risk to public safety and community."
It is true that perpetrators of serious felonies have been apprehended and deported under 287(g). But critics charge that the program has never actually "targeted" dangerous criminals. A report issued by the ACLU of North Carolina and the Immigration and Human Rights Policy Clinic at the University of North Carolina suggests that 287(g) partnerships have more often been used to purge towns and cities of "unwelcome" immigrants. In one month in 2008, the report found, 83 percent of the immigrants arrested in Gaston County, N.C., by 287(g)-deputized officers were charged with traffic violations.
The Meyers memo and Cullen letter support ICE's claim that the agency wished to curb detention of vulnerable, non-criminal immigrants. Yet two years later, in March 2011, then-director of ICE John Morton felt compelled to spell out the policy in another memorandum: "Absent extraordinary circumstances or the requirements of mandatory detention, field office directors should not expend detention resources on aliens who are known to be suffering from serious physical or mental illness, or who are disabled, elderly, pregnant, or nursing, or demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest."
Even this further guidance from top officials at ICE did not stop the mother-infant separations.
Just one month after publication of the Morton memo in 2011, Brazilian mother Katia Cynara Borges was detained for seven days at the Suffolk County House of Corrections in Massachusetts after a traffic stop revealed that she did not have legal residency. Borges says she told ICE officials "many times" that she was still breastfeeding her 13-month-old son, but that her requests to be with him were ignored. After several inquiries by the Boston Globe, ICE released Borges, saying, "After further review, ICE determined that the detention of this individual was not consistent with agency policy on the detention of breast-feeding mothers. As a result, ICE released the individual today while she awaits the outcome of her case."
In 2012, Christian chaplain Reylla Ferraz Da Silva had just given birth to her son Enzo when she received a notice to appear in immigration court in San Francisco. As she tells the Scene, sitting in her modest apartment outside the city while Enzo plays nearby on the carpet, Ferraz Da Silva had fled her native Brazil under threat of violence in 2005 and was in the process of petitioning for asylum.
She immediately applied for a one-year "alternatives to detention" extension based on her status as a nursing mother. In the process, she also provided documentation that her son had been diagnosed with a serious heart defect at birth and required frequent breastfeeding for optimal nutrition.
ICE granted Ferraz Da Silva three separate three-month extensions, each time sending a confirmation letter to her attorney. But on May 9, 2013, ICE agents arrested her and put her into federal custody. Ferraz Da Silva says she immediately reminded ICE agents that she was nursing a sick infant. They took her anyway, transporting her from a temporary detention facility in San Francisco to West County Jail in nearby Richmond, Calif. Once inside, she was dressed in standard orange inmate attire and thrown in with a mixed population of criminal and civil (immigration) detainees.
Translating for his wife from Portuguese into English, Fabricio Ferraz says his wife can barely talk about the experience.
"They wouldn't give her medication for a urinary tract infection that she had. They wouldn't give her tampons," he explains. "Her breasts were engorged with milk, and starting to back up, and they did nothing. They said, 'Sorry.' " Finally, a fellow inmate saw Ferraz Da Silva on her hands and knees, praying for help, and gave her tampons from her personal supply.
Meanwhile, Fabricio Ferraz was left at home to run his business, care for his son and fight for his wife's release. He recalls his time on the outside with a mixture of anger, confusion and grief.
"My son woke up every morning for two weeks crying 'Mama, Mama,' like a knife in my heart, and there was nothing I could do," he says. "I felt like I called every lawyer in San Francisco. None of them wanted to help."
At the same time, Enzo was losing weight. The baby's pediatrician wrote a letter to ICE alerting the agency that the baby had a heart condition and that breastfeeding was important for his health. In the letter, he said frequent nursing was necessary to ensure the child received adequate hydration and nutrients, explaining that Enzo's severe allergies made it difficult for him to tolerate breast milk substitutes.
But Reylla Ferraz Da Silva remained separated from her son in jail. Enzo lost a pound, became dehydrated, and spent his first Mother's Day apart from his mother.
"I would die for my family. But there was nothing I could do," Ferraz recounts from his living room. "Then I remembered the Bible verse where Jesus tells Peter to cast his fishing net on the other side of his boat, and that verse stuck in my mind. I changed tactics and I just spread the word to friends, community groups, everyone. Everyone. And then things started to change."
His social media and other networking paid off. Suddenly Ferraz was fielding calls from UniVision and Fox News Latino asking about his wife's case. Rep. Nancy Pelosi's office emailed him to say that they would look into the situation. Suddenly, Ferraz Da Silva was treated for her urinary tract infection and was allowed visitors.
On May 22, 2013, one hour before a local religious coalition planned to hold a public rally on her behalf, San Francisco ICE assistant field director Craig Meyer came to Richmond to personally release Ferraz Da Silva. Commenting on the case to local media, ICE officials reiterated that official agency policy is not to detain nursing mothers. They claimed that officials had not known she was one.
Ferraz Da Silva's attorney, Niloufar Khonsari, scoffs at this.
"They say they didn't know she was nursing a baby? They gave her extensions based on it for months. We have all the correspondence. They knew," she tells the Scene. Khonsari says her client is free not because ICE "realized its mistake," but because people on the outside were about to create an embarrassing spectacle. She believes that "[Ferraz Da Silva] was absolutely released only because of the public outcry about her case."
The family's reunion remains a painful memory for Ferraz. "Enzo looked at his mom like he could barely believe his eyes, like she wasn't real, for five whole minutes," he remembers. "Then he cried and cried and held onto her for dear life. He didn't sleep for two days after she got back."
So far, ICE has offered no explanation for why its agents and state law enforcement partners were still detaining nursing mothers in defiance of established policy. Bryan Cox, Tennessee's ICE public affairs officer, disputes that such problems persist. When asked to comment on the Villegas case, Cox said only that "[Ms. Villegas] was in the custody of local law enforcement, not ICE."
In regard to Ferraz Da Silva, Cox maintains that "[she] didn't inform ICE that she was breastfeeding when she was taken into custody, and she was released promptly when we learned of her status."
In a response letter to a FOIA request filed during research for this story, ICE denied that documents or information exist pertaining to the agency's detention of breastfeeding mothers.
In September 2008, shortly after Villegas' arrest, the Davidson County Sheriff's Office issued a new policy ending the shackling of pregnant women in detention. "We do not restrain pregnant women at any time unless they are threatening harm to themselves or others," said spokeswoman Karla R. West. But Davidson County Sheriff Daron Hall has maintained throughout the legal proceedings that his office and officers behaved in accordance with policy.
"I believe our officers followed accepted correctional practices, and we look forward to continuing the legal process," Hall said last year, shortly after the 6th U.S. Circuit Court of Appeals reversed the initial summary judgment in Villegas' favor and remanded the case back to federal district court in Nashville for further proceedings. By that time, Davidson County had opted out of the controversial 287(g) program, which Hall essentially declared a casualty of its own success.
While happy about the outcome of her own case, Juana Villegas still struggles to understand why ICE and local law enforcement separate mothers from their babies, and why these separations have continued in the years since her own . She hopes for immigration reform that will allow families like hers to live and work here. In the meantime, she encourages fellow undocumented women and men to tell their stories.
"To people in the same situation, I would say, don't stay quiet," she says. "Even when you have no immigration status, if you speak out, someone is going to hear us."
Email editor@nashvillescene.com.
