Michelle Nicoll Gutierrez had often visited the United States legally since her mother married a retired U.S. Foreign Service official years ago and relocated from Mexico to Maryland.
Nicoll Gutierrez’s toddler son was born here after she became ill during an extended stay late in her pregnancy. She was returning on another trip to celebrate her 42nd birthday when federal officials detained her at Bush Intercontinental Airport Saturday and denied her entrance, revoking her tourist visa, and barring her from returning for five years.
Customs and Border Protection officials have expansive latitude in determining who is allowed into the United States and under President Donald Trump’s administration have tightened their scrutiny. Lawyers said Nicoll Gutierrez’s frequent long visits within the limits of her visa may have raised a red flag that she was intending to stay beyond her authorization, despite never having violated the conditions of her visa.
But they said federal officials focused unusually on her use of Medicaid and state health insurance during the birth of her son in December 2016 in Maryland.
In a statement, Daniel Hetlage, a spokesman for Customs and Border Protection, said entrants to the United States are inadmissible by law if they risk becoming a “public charge.”
Nicoll Gutierrez, he said, was found to have used “government assistance during a previous stay to pay for the expenses associated with having a child in the U.S. … She was found to be an intended immigrant and returned.”
The incident comes as Trump’s administration is finalizing a proposed rule that would make it more difficult for legal immigrants and tourists to obtain a green card or any type of visa if they or their dependents, including their American children, have used an expanded range of public benefits, from Medicaid and food stamps to the Children’s Health Insurance Program.
Because Nicoll Gutierrez’s child was born in Maryland, he is automatically an American citizen and qualifies for benefits, including Medicaid. Nicoll Gutierrez also qualified for benefits under the Children’s Health Insurance Program Reauthorization Act of 2009, in which more than 29 states, including Maryland, allow pregnant women who are lawfully present and have less than a certain annual household income to be eligible.
Immigration lawyers, advocates and public health researchers say the administration’s proposed rule would be the most significant change to the legal immigration system in decades and estimate that more than 10 million immigrants could be impacted, including 1.3 million in Texas. Immigrants like Nicoll Gutierrez, who apply for or arrive on valid visas but had previously used such benefits through their American children could also be denied entry.
“This would be a very radical change,” said Mark Greenberg, who led the Department of Health and Human Services’ Administration for Children and Families and is now a senior fellow at the Migration Policy Institute, a Washington D.C. think tank. “It would have both direct effects on people seeking admission and adjustment of status, but there is also enormous concern of a chilling effect as families across the country may become fearful of using health assistance and other public benefits.”
Katie Waldman, a spokeswoman for the Department of Homeland Security, said that the administration is enforcing immigration law, which is intended to ensure that foreigners seeking to enter or remain in the U.S are “self-sufficient.”
“Any proposed changes would ensure that the government takes the responsibility of being good stewards of taxpayer funds seriously and adjudicates immigration benefit requests in accordance with the law,” she said in a statement.
The proposed rule is not yet in effect and must still be published and opened to public input. It is likely to result in litigation.
But Customs and Border Protection officers at ports of entry have “unfettered authority” in deciding if immigrants should be allowed into the United States, said Charles Foster, a Houston immigration attorney who advised President George W. Bush on the issue.
They can use any number of factors, including whether they think someone might intend to stay beyond the period allowed in their visa or whether they suspect the person could become a “public charge.”
The term has been a long-standing feature of immigration law and President Bill Clinton’s administration redefined it in 1999 to include immigrants who receive cash assistance through programs such as Temporary Assistance for Needy Families. The Trump administration’s proposed changes would vastly expand that definition.
“In (Nicoll Gutierrez’s) case, what is particularly frustrating is that she has been re-admitted multiple times and this issue never came up,” Foster said. “So why now?”
Nicoll Gutierrez’s stepfather, John Atchley, a retired U.S. Foreign Service officer who spent 28 years working on economic affairs across Latin America and Africa, said his stepdaughter tried to comply with American law while juggling a close-knit family separated by international borders and a backlogged immigration system.
“It’s hard not to feel disillusioned and bitter,” he said.
Atchley wed Nicoll Gutierrez’s mother in 2008 and she became a U.S. citizen through her spouse. Her youngest daughter was a minor at the time so she qualified for a green card through her mother’s marriage; Nicoll Gutierrez did not.
Americans can sponsor spouses, minor children, and parents without numerical visa limitations. But the wait-list for Nicoll Gutierrez, as the married daughter of a U.S. citizen from Mexico, is currently 23 years.
Congress limits how many visas can be granted to residents of any one country each year and the backlog for countries such as Mexico and India who send many immigrants here are tremendous.
“We would have been dead by that time,” said Atchley, who is 77. “We said, ‘well guys, you’re out of luck.’”
Instead Nicoll Gutierrez visited once a year on extended stays, always less than six months as required by her tourist visa, which is valid for a maximum of 10 years.
In September 2016, Nicoll Gutierrez came here to help her mother, who was suffering from fibromyalgia, a musculoskeletal pain disorder.
She told Customs and Border Protection officers that she also wanted to go shopping because she was pregnant at the time, according to a transcript of her extensive interview Saturday. Agents questioned her thoroughly about her financial affairs and focused on her brief use of Medicaid and other such health benefits during pregnancy.
In October 2016, Nicoll Gutierrez said she was diagnosed with pre-diabetes while visiting her mother and told she had a high-risk pregnancy and was in danger of gestational diabetes.
“They told me I could not fly,” she said.
The family sought advice from a church-based organization, an immigration advocacy group, hospital employees and even Maryland Health Connection, the state’s official health insurance marketplace. Nicoll Gutierrez was advised she qualified for assistance through both Medicaid and the Children’s Health Insurance Program because her child would be an American citizen and because Maryland participates in the allowance for pregnant women on legal visas.
“She was told that she was eligible for those benefits,” Atchley said. “That is why she was doing everything right and nothing wrong, and was very grateful.”
Had that not been the case, he said she would have covered her medical expenses with her family”s help and from income she receives from a rental property in Mexico. She and her husband are also regional distributors for a line of high end cookware.
“She would never have become any kind of public charge,” Atchley said.
Nicoll Gutierrez’s son was born in December 2016 and she returned to Mexico in March 2017.
She came to the United States again in June 2017, leaving in November. In that time, she told federal officials she did not seek any medical care.
“My mother wants to be with her grandson,” she said.
Nicoll Gutierrez, her toddler, her mother, and sister were going through airport inspection Saturday when Customs and Border Protection officials separated her and her son.
They declared her “inadmissible” as an “intending immigrant” and revoked her tourist visa. They sent her back to Mexico, barring her from returning for five years.
Atchley said future family reunions would have to be in Mexico or another country a “little more welcoming.”
“We’re very upset,” he said.