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ICE to limit detention of pregnant women in reversal of Trump-era rule

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ICE to limit detention of pregnant women in reversal of Trump-era rule

  • Two women file paperwork in Nogales, Sonora in June 2018.
    Paul Ingram/TucsonSentinel.comTwo women file paperwork in Nogales, Sonora in June 2018.

U.S. Immigration and Customs Enforcement will no longer detain pregnant or nursing migrants except in a narrow set of circumstances, according to policy guidelines released Friday.

Under a July 1 directive signed by ICE's acting Director Tae Johnson, immigration officials will no longer detain, arrest, or take into custody those who are pregnant or nursing unless their release is prohibited by law or "exceptional circumstances". The rule also applies to post-partum women who have given birth within the last year.

Officials will be required to evaluate those who are already in custody “to determine if continued detention is appropriate.” However, the policy does not stop ICE from initiating deportation proceedings against pregnant or nursing women.

The new directive also puts in place restrictions on the use of restraints for women who are pregnant or in post-delivery recuperation and prohibits the use of restraints on women who are in active labor or delivery.

The policy is a departure from a 2017 Trump administration directive which removed language from ICE guidelines stating that absent extraordinary circumstances, pregnant women would not generally be detained by immigration authorities. A 2016 ICE policy included a presumption of release for pregnant individuals unless their detention was considered mandatory.

A 2019 report by the Government Accountability Office found that detentions of pregnant migrants increased by 52% between 2016 and 2018, with a total of 1,380 detentions of pregnant women in 2016 and 2,098 detentions in 2018. An overwhelming majority of the detainees had no prior recorded criminal history.

ICE officials said in a statement Friday that the new policy reflects a “commitment to treat all individuals with respect and dignity while still enforcing our nation’s laws.”

“ICE is committed to safeguarding the integrity of our immigration system and preserving the health and safety of pregnant, postpartum, and nursing individuals,” Johnson said.

Rebekah Wolf, staff attorney with the American Immigration Council, said the organization is “hopeful” that Friday’s announcement “is an indication of a broader shift on detention policy.”

“The federal government should not be in the business of detaining pregnant or nursing individuals, and it’s good to see the Biden administration directing ICE to finally take meaningful steps to limit enforcement activities in this manner,” Wolf said in a statement.

Kate Jastram, policy and advocacy director at the Center for Gender & Refugee Studies, called the change “the right decision and long overdue” Friday, adding that detention “endangers the health and safety of pregnant, postpartum, and nursing individuals, who suffer poor conditions and inadequate medical care in ICE facilities.”

Immigrant advocates have long railed against the detention of pregnant migrants, citing threats to maternal and fetal health as well as numerous instances of mistreatment and delayed access to care in ICE detention facilities.

A September 2020 report from the Center for Reproductive Rights on the experiences of pregnant migrants and asylum-seekers during the Covid-19 pandemic found that the U.S. Customs and Border Protection Office of Field Operations reported processing more than 3,900 pregnant women.

The report alleged numerous abuses detailed in complaints submitted to the Department of Homeland Security, including degrading treatment and inadequate access to food, clean water, and bedding, which negatively impacted the health of pregnant detainees.

“This action by the Biden administration is a welcome step in the right direction,” Eunice Cho, senior staff attorney with the American Civil Liberties Union's National Prison Project, said in a statement Friday.

She added, “This move brings us closer to more humane treatment by ICE of people who are pregnant, postpartum, or nursing. ICE should stop detaining or arresting people who would be at particular risk in detention, must implement robust oversight of detention facilities, and ensure the release of all people who would be particularly vulnerable in detention.”

The policy change is part of an effort by the Biden administration to undo the more aggressive enforcement measures put in place by former President Donald Trump.

In February, ICE adopted new guidelines that would focus apprehensions of immigrants more narrowly on those who pose a threat to national security, border security, or public safety.

According to data provided by the agency, there were 27,008 immigrants in ICE detention as of July 2.

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