CBP releases new guidelines for pregnant, infant detainees

Customs and Border Protection (CBP) on Monday released new guidelines for the treatment of pregnant, postpartum, breastfeeding and infant detainees, following a July report detailing the agency’s lack of appropriate care infrastructure and guidelines.

In a policy memo reviewed by The Hill, CBP acting Commissioner Troy Miller laid out a series of measures — from improving CBP installations to include changing stations to providing medical support — that field offices and Border Patrol stations will have to implement within 45 days.

The memo comes as a response to an Office of the Inspector General (OIG) report which detailed how a pregnant woman in Border Patrol custody in 2020 gave birth while wearing pants and holding onto a trash receptacle. 

The report found that 23 other babies had been born in Border Patrol custody between 2016 and 2020.

A group of 11 Democratic senators earlier this month called on Homeland Security Secretary Alejandro Mayorkas to issue CBP policy guidance on mothers and infants, based in part on the report’s findings.

“As this case and the OIG’s report highlight, current CBP policy is wholly inadequate and has exposed pregnant people and their U.S. citizen newborns to serious dangers related to their health and safety,” wrote the senators.

While the report found that Border Patrol officials did not mistreat the woman in the 2020 incident, it did find that Border Patrol, a component of CBP, does not track pregnancies and births adequately, resulting in potential mistreatment.

“Further, Border Patrol does not have clear policies or guidance requiring agents to document childbirths and pregnancy-related complications that occurred in custody resulting in inconsistent and incomplete records,” reads the report.

Miller’s new memo includes required actions related to identifying and providing medical care and care in custody for mothers, as well as specifications for care of newborns.

The new rules include care for expectant mothers, as well as those who have given birth in the last six months or recently experienced stillbirths or miscarriages. 

They’re a reflection of policies announced in July at Immigration and Customs Enforcement (ICE), CBP’s sister agency, where the Biden administration reversed Trump-era rules that expanded who could be detained. 

ICE’s new policy prohibits the detention of most pregnant, postpartum and nursing mothers for deportation.

While the ICE policy change in practice suspends or delays immigration enforcement against pregnant women, the CBP memo is not intended to change the immigration status of detainees, focusing instead on improving care.

CBP and its agencies are in charge of immigration enforcement for migrants caught at borders and ports of entry.

Many of those migrants are subject to stricter enforcement measures like Title 42, a Trump-era policy that allows U.S. authorities to quickly expel foreign nationals based on pandemic precautions.

In an August memo, Miller touched on the need to weigh public health and humanitarian interests as potential exceptions to implementation of policies like Title 42.

The 11 Democratic senators called on Miller to order minimizing the detention of pregnant, postpartum and nursing mothers, as well as their U.S. citizen newborn children.

“[T]his memo fails to instruct CBP to avoid or minimize the detention of such individuals, despite acknowledging the harm that detention does to pregnant people and people who give birth in CBP custody,” wrote the senators.

Miller’s latest memo does not get into the enforcement consequences of pregnancy, postpartum and neonatal detention, instead limiting itself to issuing safety and health guidelines for treatment of those detainees.

–Updated at 3:46 p.m.