Biden directs ICE to limit arrests of pregnant, nursing women

The Biden administration has directed its immigration officers to avoid arresting pregnant and nursing women, and set new guidelines for treatment when they are taken into government custody.

A July 1 memo signed by U.S. Immigration and Customs Enforcement (ICE) acting Director Tae Johnson obtained by The Hill directs the agency to house women in “an appropriate facility to manage their care.”

“Generally 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,” Johnson wrote in a memo to ICE officers.

It also requires ICE to evaluate individuals already in their custody “to determine if continued detention is appropriate.”

The gender neutral language used in the memo means the directive also includes transgender men, and it applies to anyone postpartum who has given birth within a year.

The policy reverses a 2017 memo issued during the Trump administration that removed language stating that absent extraordinary circumstances, pregnant women should generally not be detained. The Trump-era policy still required the agency to perform pregnancy tests on women taken into custody.

“The most recent [policy] was essentially calling on the agency to ID people and monitor them, which is worlds away from avoiding enforcement action against them or releasing them,” said Jorge Loweree, policy director at the American Immigration Counsel.

“This new directive is a great development and goes further than prior ICE policies regarding the treatment of pregnant individuals. Immigration detention has been proven to be exceptionally harmful, and it’s great to see the administration directing ICE to take actions that have been necessary for years.”

According to a 2019 Government Accountability Report, ICE detained 2,098 pregnant women in 2018, along with 381 nursing women. It’s a significant jump from the last year of the Obama administration, when 1,380 pregnant women were held in ICE custody.

A statement later released by ICE said the memo is a “recognition of the time needed for infant development and parental bonding.”

The memo also requires ICE officers to get permission from a higher-up before issuing a detainer for anyone who is pregnant or nursing. 

It also directs the agency to begin collecting data on anyone in ICE custody who falls into that category and requires that they be held in “facilities suitable for their medical and mental health needs.”

The directive also largely bars the use of restraints on any women already in an ICE facility, unless they present an immediate threat to themselves or others, requiring “the safest method and duration” in such cases as well as documented approval from a medical authority.

Restraints are never to be used during labor and delivery, the memo notes.

The memo follows a push by immigration advocates and other groups to limit the detention and restraint of those who are pregnant in the criminal justice system more broadly.  

“The immigration detention system separates mothers from their families, denying them the ability to parent; it mistreats pregnant people and denies access to abortion and other reproductive health care, interfering with the rights of detained people to control their reproductive lives and have healthy and positive pregnancy outcomes,” the Center for American Progress wrote in a 2019 report.

–Updated 11:16 a.m.