Baby on Board

The attempted deportation of an infant by UMC reveals legal murk

When Fernando Gaxiola got the call, his otherwise peaceful April morning went white-knuckle. It was a mother, frantic because her baby was being flown to Mexico by University Medical Center.

The mother was an undocumented immigrant. But "Baby Mejia," born in Tucson, was an American citizen. Now the woman was seeing her newborn dispatched to a social agency in Sonora--without her consent, she said.

To UMC--potentially saddled with the costs of treating a baby's long-term health issues--this was a voluntary departure. But to criminal attorney Gaxiola, it was a simple kidnapping.

Both he and the mother were told by UMC that the baby was being transferred for medical reasons, which he calls nonsense. "The only problem was that no other facility in Tucson would take the child, for economic reasons, not for medical reasons. So why did they insist on a magic combination of words that were clearly a lie?"

But Jim Richardson, UMC's in-house counsel, scoffs at that notion. "The mother was from Mexico--clearly, that's where she lived--and she was in agreement with sending the infant back, up until the last minute, and that's why the baby was taken to the airport."

Gaxiola calls it absurd to think a mother would want her child flown to Mexico and put in the hands of a social-service agency there. "If she had given consent, why would she be calling me?" he says. "That mother told me she had no choice, that the child was going to be sent back to Mexico. She said, 'I don't know what I'm going to do in Mexico. I don't have any family or friends there.'"

According to Richardson, UMC returns about 50 patients each year to their home countries. Yet there seems to be no record of written consent from these patients--in what amounts to quiet, informal deportations. While he contends that problems are rare with such returns, anecdotal evidence suggests otherwise.

Nor is UMC alone. Tucson Medical Center also returns patients to their home countries, but only upon the patient's request, says spokesman Mike Letson. It appears that the Carondelet Health Network--which includes St. Mary's and St. Joseph's hospitals in Tucson--repatriates patients as well, although an official initially denied the practice when first contacted by the Tucson Weekly.

In a subsequent interview, Bill Pike, Carondelet's public policy director, acknowledged that his network does have a limited repatriation program. "It happens on occasion," he now says, while insisting that transfers occur only with a patient's consent. "As part of our culture, we would never just force someone out."

Still, the line between gentle persuasion and outright coercion at some hospitals can be exceedingly thin. Gaxiola recalls when a client asked to remain at UMC one more day before being returned to Mexico--a request he says the hospital initially denied.

Another patient was purportedly being driven against his will to Agua Prieta, Sonora, when Gaxiola received a phone call. "The guy told me he didn't want to go," the attorney says. "But they put him in an ambulance, and at the port of entry, the U.S. Border Patrol asked to speak to the guy in the back. The agent asked him, 'Do you want to go to Mexico?' And the guy said no."

The ambulance was turned back.

But Richardson believes the patient simply had a change of heart. "Everything was fine when the gentleman left here in the ambulance, but something changed along the way," he says. "I don't know if he was talking to people or not, but he had a cell phone with him. By the time he got (to the border), he had changed his mind, so he came back."

UMC treated the man until he was later released.

Among these known episodes, the Baby Mejia case ranks among the most disturbing. As the baby was en route to the Tucson International Airport for a flight to Hermosillo, Gaxiola was cobbling together a strategy. Eventually, he convinced the mother to grant him custody of the child.

"She said, 'Can you take care of my baby?'" he recalls. "I told her that if she put the baby in my custody, I would do everything I could to take care of it." The father also granted him custody by phone a few minutes later. "And at that point, I called 9-1-1," Gaxiola says, "to let the police know that a kidnapping was in progress."

He then informed the hospital that they couldn't move the baby without his consent. And he contacted Mexican authorities to inform them that an American citizen was being kidnapped.

"They told me that if any (child) arrived in Hermosillo without written parental consent, the airplane would be seized, and the pilot would be jailed while they did an investigation," Gaxiola says. "And that child would be returned to the United States."

It never got that far, as Tucson police arrived in time to stop the flight. "They were the heroes," Gaixola says. "They were so complete in their operation that they actually went back to UMC and physically saw the child there before they would close the case. The police department understood something very simple: You cannot move a child without parental consent."

So who provides oversight of these seemingly compulsory international removals? Nobody, it seems. While facilities receiving federal Medicare funds are required to make adequate arrangements for discharged patients, "there's nothing separate for certain types of citizens or noncitizens," says Debbie Johnston, director of regulatory affairs and policy for the Arizona Hospital and Healthcare Association. Nor are there guidelines for navigating these complex legal waters. "We don't have any guidance, any policy coming down from the courts or from the government on what happens when a patient is ready for discharge, and consent hasn't occurred," Johnston says.

Meanwhile, Jim Richardson of UMC adamantly denies that his hospital engages in deportations.

"Only the federal government can deport someone," he says.

But others call that legal parsing. "For the counsel's office to say they're not involved in deportations, well, technically, they may be right," says law professor Sarah Paoletti, with the University of Pennsylvania's Transnational Legal Clinic. "But they are taking people and moving them out of the country, and I can't see how they have the authority to do that."

Paoletti believes medical centers are entering treacherous waters. "Legally, the real problem with hospital enforcement of our immigration laws is that those immigration laws are very, very complicated," she says. "The legal risk of deporting somebody who may have the legal right to be in this country is significant. And hospital administrators are certainly not in a position to understand whether someone has a legal right to be in this country or not."

Odds are that Baby Mejia would agree.

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