Immigration Law

ICE will no longer routinely detain pregnant and nursing women

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In a reversal of a Trump administration rule, U.S. Immigration and Customs Enforcement will limit the detention of pregnant women.

According to the July 1 directive, which was announced Friday, ICE will not detain, arrest or take into custody women who are pregnant, nursing or have given birth in the past year unless “release is prohibited by law or exceptional circumstances exist.” The agency said only individuals who pose a threat to national security or an imminent threat of death, violence or physical harm to others will fall under this category.

The Associated Press, CNN and Courthouse News Service have coverage.

While ICE said the directive does not address whether removal proceedings should be initiated against pregnant and nursing women, it requires the agency to monitor individuals who are detained “for general health and well-being, including regular custody and medical reevaluation, to ensure appropriate pre- and/or post-natal and other medical and mental health care.” The directive also said individuals must be detained in facilities that are “suitable for their medical and mental health needs.”

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

This latest guidance from ICE is part of a broader move by the Biden administration to return to immigration policies put in place by President Barack Obama, according to the Associated Press. In August 2016, the agency adopted a policy that permitted pregnant women to be eligible for release pending the outcome of their cases.

President Donald Trump ended that policy the following year as part of his administration’s immigration enforcement measures.

The U.S. Government Accountability Office found that the number of pregnant women detained by ICE increased from 1,380 in 2016 to 2,098 in 2018, according to its 2019 report.

Eunice Cho, senior staff attorney with the National Prison Project of the American Civil Liberties Union, said in a statement Friday that the shift in policy is 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 added. “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.”

ICE’s new directive also restricts the use of restraints on women who are pregnant or in post-delivery recuperation and prohibits their use on women who are in active labor or delivery.

See also:

ABA Journal: “Biden reverses course on Trump’s immigration policies—but will high-skilled workers return?”

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