The Trump administration has abandoned a policy of generally releasing pregnant women from immigrant detention, according to a directive publicly shared by Immigration and Customs Enforcement on Thursday.
Under the new policy, pregnant women will be released from immigrant detention only on a case-by-case basis.
Since at least 2011, ICE had implemented a policy that generally favored releasing pregnant women from detention. But the policy also provided exemptions for women facing mandatory detention or security threats. In practice, ICE detained more than 500 pregnant women in 2016, the last full year the policy was in effect.
With the change, outlined in a Dec. 14 directive signed by acting ICE Director Thomas Homan, ICE will no longer presumptively release pregnant women from detention. It supersedes a 2016 memo, also signed by Homan, that codified the policy against detaining pregnant women except under “extraordinary circumstances or the requirement of mandatory detention.”
Under the new policy, ICE will detain “only those whose detention is necessary to effectuate removal, as well as those deemed a flight risk or danger to the community,” according to a fact sheet obtained by HuffPost. ICE will generally not detain pregnant women during their third trimester.
Philip Miller, deputy executive associate director for ICE’s Enforcement and Removal Operations, told reporters on Thursday that many pregnant women encountered by immigration enforcement are already subject to mandatory detention by law, particularly if they were apprehended at the border and are not deemed eligible to move forward with any claims for relief.
Others may be subject to mandatory detention because they committed certain crimes within the U.S. Since the policy went into effect in December, ICE has detained a total of 506 pregnant women, according to ICE, though the agency did not say how many of those women were later deported or released into the U.S. He said that on March 20, the last date for which ICE has the data, there were 35 pregnant women in detention, all of them subject to mandatory detention.
“To miscategorize this as some wholesale change or some kind of draconian act is really just hyperbole,” Miller said. “We’re aligning this policy, as we have with all of our policies, with the direction from the president.”
The changes, which will apply to pregnant women seeking asylum, bring ICE policy closer in line with an executive order signed by President Donald Trump a week after taking office last year. That order scrapped the Obama-era prosecutorial discretion policy instructing officers to deprioritize detaining and deporting certain immigrants.
Several human rights organizations filed a complaint with the Department of Homeland Security in September on behalf of pregnant women detained by ICE. The complaint alleged that ICE was failing to abide by its own policy against detaining pregnant women and that the women were not being given adequate care.
Not detaining a pregnant woman doesn’t mean she won’t have to go through the immigration legal process. Michelle Brané, of the Women’s Refugee Commission
Critics maintain that ICE detention centers are ill-equipped to treat the complex medical issues pregnant women face. Two women told HuffPost they lost pregnancies at ICE detention centers last year.
Immigrant women in detention are also sometimes the victims of rape, said Kathryn Shepherd of the American Immigration Council, which was one of the groups that filed a complaint last year against the detention of pregnant women.
“Being in detention is not an appropriate setting for not just a pregnant woman, but a pregnant woman who may or may not be pregnant as a result of a significant trauma like that,” she said.
Michelle Brané of the Women’s Refugee Commission, which was also part of the complaint, said ICE did not notify her organization after the directive in December, even though the two groups have been in communication with each other. Still, she said she was not surprised by the policy change ― it is one that immigrant rights advocates feared was coming after Trump’s executive order last year.
She said it is impossible to know for sure whether the number of pregnant detainees will go up, but “it’s pretty clear that the intent is to reduce the number of pregnant women who are released.” Alternatives to detention, like mandatory check-ins or ankle bracelets, are both more humane and less expensive for taxpayers than detaining pregnant women, she said.
“The crazy thing about it is they’re claiming it’s because they should be treated like everyone else and that they’re going to go after everybody who has immigration status issues, but the reality is that those aren’t your only options,” Brané said. “Not detaining a pregnant woman doesn’t mean she won’t have to go through the immigration legal process.”
This story has been updated with more details of and reaction to the policy change.