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Asylum seeker loses bid to hold feds accountable for miscarriage

An expert for the U.S. government said an ultrasound indicated the woman's pregnancy was failing before her detention at the U.S.-Mexico border.

SAN DIEGO (CN) — The federal government has prevailed in a lawsuit brought by an asylum seeker who claimed her miscarriage at a privately run immigration detention center in 2018 was caused by a lack of adequate medical care.

In 2017, Rubia Mabel Morales-Alfaro left El Salvador with her husband and headed to the U.S.-Mexico border. When they reached Tijuana, they stayed and worked for a few months. In December 2017 Morales-Alfaro found out she was pregnant and a week later, Morales-Alfaro and her husband crossed into the U.S. through a hole in the border wall in Tijuana. Minutes after they crossed the border, they were arrested by the U.S. Border Patrol where Morales-Alfaro claimed the arresting agent kicked her on her hip and in her back, a claim the federal government denied. 

ICE agents took Morales-Alfaro to the Otay Mesa Detention Center, run by private contractor CoreCivic. In January 2018, she was taken to an offsite hospital emergency room for a suction dilation and curettage procedure, where doctors remove tissue from the uterus to diagnose and treat conditions like heavy bleeding, or to clear uterine lining after a miscarriage or abortion. The next day, she passed a large blood clot and an ultrasound confirmed she had miscarried.   

Morales-Alfaro sued the federal government and CoreCivic, claiming the conditions at the detention center were deliberately punitive and designed by the company and the U.S. government “to inflict severe harm on Central American immigrants” to deter them from seeking asylum in the U.S. She claimed the U.S. government’s negligence in providing her proper medical care led her to miscarry, and Corecivic’s negligent supervision and training of employees resulted in emotional distress.

In 2021, the Biden administration issued a policy to curtail the arrest of most pregnant, nursing, and postpartum asylum seekers by Immigration and Customs Enforcement officers, a return to an Obama administration policy canned by the Trump administration.

Using the ultrasound Morales-Alfaro got in Tijuana, attorneys for the defendants relied on the testimony of  Dr. Jessica M. Kingston, a health sciences clinical professor at UC San Diego Health and board-certified by the American Board of Obstetrics and Gynecology, to determine that Morales-Alfaro's pregnancy was likely failing before her arrest at the border.

Dr. KIngston noted that Morales-Alfaro’s doctor in Tijuana didn’t mention a number of uterine structures in their medical reports of the ultrasound necessary to indicate pregnancy, including a yolk sac — a structure that provides nutrients to an embryo during the first trimester of a pregnancy — or a fetal pole and an embryo. 

In an 18-page summary judgment order, U.S. District Judge Larry Burns found Kingston's testimony and a lack of specifics on how the federal government might have contributed to the miscarrage by Morales-Alfaro's experts doomed her case.

"Although the question of whether a defendant’s conduct actually caused an injury is ordinarily left for the jury to decide, Morales hasn’t presented specific facts that show there is a genuine issue for trial," Burns wrote. "Even if a triable issue exists as to whether Morales was afforded proper care, she fails to establish causation, an essential element of her claim."

Burns granted summary judgment to the feds, but handled the state law claims against CoreCivic differently — dismissal without prejudice so Morales-Alfaro can sue in state court.

Joy Malby Bertrand, Morales-Alfaro’s lawyer, said she’s talking to her now about next steps and hopes Morales-Alfaro will authorize her to file an appeal in the Ninth Circuit.  

“She’s a fighter, I think she will, but it’s ultimately her choice," Bertrand said. 

In the meantime, Morales-Alfaro is in the U.S. legally on asylum bond, Bertrand said.

Justice Department attorney Samuel Bettwy said the case came down to Morales-Alfaro's inability to refute the government's experts.

“According to the United States’ medical expert, the two ultrasound images showed that the plaintiff’s pregnancy had failed before she entered the United States, and plaintiff’s expert did not refute that opinion. The court therefore concluded that nothing that happened after plaintiff’s entry into the United States could have caused her miscarriage,” Bettwy said in an email.

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