U.S. Immigration and Customs Enforcement released a new guidance that says ICE will no longer arrest or detain individuals who are pregnant, postpartum, or nursing unless there are special circumstances.
“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,” wrote ICE acting Director Tae Johnson in the July 1 memo.
This new Biden administration policy takes a turn away from the Trump administration’s restrictive immigration policies. In 2017, former President Trump reversed an Obama administration guidance that had directed ICE to try to release any pregnant woman in ICE custody. According to a Government Accountability Report conducted in 2019, Trump’s directive led ICE to detain 2,089 pregnant women and 381 nursing women in 2018. This was a 52% increase from the 1,380 pregnant people detained during the last year of the Obama administration.
The new ICE directive is more expansive than the Obama-era policy in that it not only applies to pregnant people, but it also applies to people who are nursing and who have given birth within the last year. It also uses gender neutral language, meaning transgender men are protected by the policy as well as women.
“This action by the Biden administration 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,” said senior staff attorney with the National Prison Project of the American Civil Liberties Union, Eunice Cho, in response to the ICE guidance.
However, since Biden’s new policy was not issued through legislation, it is possible that this protection could be reversed by another administration.
Breanne J. Palmer, a lawyer for UndocuBlack Network, said, “Any change in presidential administration can materially change people’s lives, especially immigrants and folks who are kind of trying to navigate their way through the immigration system. People who endure detention when they’re pregnant or nursing, you know, they really have very little recourse.”
“It’s great to see the administration directing ICE to finally take meaningful steps to limit enforcement activities in this manner,” said Jorge Loweree, the director of policy at the American Immigration Council, “and we are hopeful that this announcement is an indication of a broader shift on detention policy.”
Sources: U.S. Immigration and Customs Enforcement 7/1/21; CNN 7/9/21; The Hill 7/9/21; Washington Post 7/9/21; New York Times 7/9/21
