In a statement, agents said they determined Nicoll Gutierrez, who was traveling with her U.S.-born toddler, was an “intending immigrant” — a term used to describe visitors likely to overstay their visas and try to remain in the United States illegally. They also cited her use of legally available government health benefits in 2016, when she visited Maryland while pregnant and experienced complications, as one reason for her exclusion.
“I’m not the kind of person to steal or take advantage,” Nicoll Gutierrez, 42, said in a phone interview from Michoacán, Mexico. “I’ve always been law-abiding, and it was never my intent to stay. I don’t want to be labeled a violator.”
It is not uncommon for foreign visitors to be turned away by border officials if those officers believe they plan to stay. But tougher enforcement and proposals for broader and more restrictive measures for legal immigration are heightening the barriers for noncitizens, immigration lawyers say, particularly those from specific countries and including those who have followed all the rules.
Separate from the “intending immigrant” issue, Nicoll Gutierrez’s case appears to reflect a Trump administration proposal to disqualify people seeking legal residency or a temporary visa if they or any member of their household, including U.S.-born children, have received Medicaid or other noncash public benefits.
Nicoll Gutierrez, whose story was first reported in The Houston Chronicle last week, “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.,” Customs and Border Patrol said in a statement. “She was found to be an intended immigrant and returned to Mexico on the next available flight.”
The American Immigration Lawyers Association says it has seen a spike since April in visaapplication denials citing public-charge grounds at the U.S. Consulate in Juarez, Mexico. That follows a change early this year in the State Department foreign affairs manual, instructing consular officers to consider a wide range of personal attributes and use of public benefits when deciding whether to issue visas.
“It’s a big deal. What’s being proposed basically turns things on its head regarding what constitutes being inadmissible,” said Kathleen Walker, an immigration lawyer in El Paso “Do we want to send a message discouraging families from seeking medical attention, from feeding their children or seeking immunizations because it might affect legal status? Is that how low we’ve gone?”
Nicoll Gutierrez obtained a 10-year tourist visa in 2010 and used it multiple times to visit her family in Derwood, Md., just north of Rockville.
Her mother, Laura Atchley, became an American citizen after marrying John Atchley, a retired Foreign Service officer, in 2008.
The couple thought about sponsoring Nicoll Gutierrez for legal residency a few years ago but decided against it when lawyers told them the wait time for processing applications for Mexican nationals is more than 20 years.
“We’ll be dead by then,” John Atchley said.
Nicoll Gutierrez was about five months pregnant when she visited in fall 2016. She planned to return home within a month.
But she became ill and was diagnosed with pre-gestational diabetes, requiring expensive treatment. Doctors said she should not travel.
Nicoll Gutierrez and her mother say they were planning to use savings to pay out-of-pocket for the medical care. But an immigrant group directed them to Maryland Health Connection, the state’s health insurance marketplace, where they learned from a navigator that with her valid tourist visa, Nicoll Gutierrez was eligible for Medicaid and CHIP, the Children’s Health Insurance Program.
Her son was born in D.C. that December, making him an American citizen. They returned home before the end of the six months her visa allows her to stay.
Maryland officials said they cannot discuss individual cases because of privacy laws. But they confirmed Nicoll Gutierrez’s visa category would qualify her for coverage in accordance with the eligibility standards set by Medicaid regulation and the Affordable Care Act.
When Nicoll Gutierrez tried to reenter the United States with her son on Aug. 4, agents peppered her with questions about her income, husband and record.
Transcripts of the interrogation, provided to The Washington Post by John Atchley, showed agents focused heavily on the details of the 2016 visit and her use of government health insurance. Agents then revoked her visa.
“I was shocked,” Nicoll Gutierrez said. “I’ve made multiple trips, and it was never my intention to stay. My life is in Mexico, but my family is in Maryland. I don’t understand why this happened.”
Her mother, who had traveled with them from Mexico, waited for hours while Nicoll Gutierrez was questioned, missing the flight that was supposed to take them all to Reagan National Airport. After receiving a text message from her daughter, she found a CBP supervisor’s office inside the airport where she could learn what was happening.
The next morning, the two women embraced at the airport before boarding separate flights to their respective homes.
“They tear your life into pieces, and your freedom to visit your family, all based on a belief. An incorrect belief,” Laura Atchley said. She noted that a lot can happen in five years, the amount of time Nicoll Guiterrez is prohibited from visiting. And in Mexico, it’s extremely difficult to obtain a new tourist visa.