Immigration and Customs Enforcement should no longer detain most immigrants who are pregnant, nursing or have given birth within the past year under a new directive that reverses former President Donald Trump’s harsh policies.
There were 13 pregnant women in ICE custody as of Thursday who are now being considered for release, officials told The Washington Post.
The Hill first reported Friday on President Joe Biden’s administration’s memo with the new guidance.
During Trump’s crackdown on undocumented immigration, no presumption of release was offered for pregnant women. Trump did away with a Barack Obama-era directive for ICE to “generally” not detain pregnant women, barring “extraordinary circumstances or the requirement of mandatory detention.”
The Biden guidance goes even further than the Obama policy by also including people who are within a year of giving birth or are nursing.
The new memo to ICE officers from the agency’s acting director, Tae Johnson, states that “[g]enerally ICE should not detain, arrest or take into custody for an administrative violation of the immigration laws individuals known to be pregnant, postpartum or nursing unless release is prohibited by law or exceptional circumstances exist,” according to The Hill.
ICE has a long ― and concerning ― history of alleged mistreatment of pregnant detainees. Some have told lawyers they were denied timely treatment after having a miscarriage. The number of women who miscarried in ICE custody nearly doubled under Trump, the Daily Beast reported in 2019. People in detainment and doctors have also reported that women have been shackled during pregnancy and postpartum.
Johnson’s new memo bars the use of restraints on pregnant women, except in extreme circumstances. ICE officers must obtain permission from a superior to request detention of a pregnant or nursing immigrant, the memo states. It also orders the agency to collect and track data on pregnancy among detainees.
Women who enter ICE custody are routinely given a pregnancy test.
“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 in a statement. “Given the unique needs of this population, we will not detain individuals known to be pregnant, postpartum or nursing unless release is prohibited by law or exceptional circumstances exist. This reflects our commitment to treat all individuals with respect and dignity while still enforcing our nation’s laws.”
Human rights groups applauded the decision, although they called for further steps to protect immigrants. Eunice Cho, senior staff attorney with the National Prison Project of the American Civil Liberties Union, called the directive “a welcome step in the right direction.”
“This move brings us closer to more humane treatment by ICE of people who are pregnant, postpartum, or nursing,” Cho said in a statement. “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.”