The U.S. Immigration and Customs Enforcement (ICE) agency will end its practice of automatically releasing pregnant immigrant detainees to “better align” with President Donald Trump’s executive order on immigration, according to official documents sent Thursday to Congress and reviewed by ThinkProgress.
The four-page policy directive and an appending FAQ indicates that the ICE agency will make a “case-by-case custody determination” in releasing pregnant detainees. Not all pregnant immigrants will be detained, but emphasis will be placed on people whose detention “is necessary to effectuate removal” and others who may be flight risks or a danger to the community.
The “Identification and Monitoring of Pregnant Detainees” directive points out that “generally, absent extraordinary circumstances” the agency would not detain pregnant immigrants during the third trimester of pregnancy. When a detention facility is unable to provide appropriate medical care in a particular case, the directive approves of sending pregnant detainees to “another detention facility or off-site treatment facility that can provide appropriate medical care.”
The directive will also allow for medical records of adults to be retained for ten years after the person has been released from ICE custody and medical records of minors to be retained until that individual’s 27th birthday. The policy directive — which went into effect in December 2017 — was signed by Acting ICE Director Thomas Homan.
An appending six-point FAQ section sent by an ICE official responds to the claim that the detention of pregnant women is a “human rights abuse” by claiming that the agency “exercises its civil detention authority consistent with the law, and all detainees receive necessary and appropriate health services, food, and care. ICE detention facilities will continue to provide onsite prenatal care and education, as well as remote access to specialists for pregnant women who remain in custody.”
The FAQ also pointed out that detention facilities would “continue to provide onsite prenatal care and education, as well as remote access to specialists for pregnant women who remain in custody. In addition, ICE ensures access to comprehensive counseling and assistance, postpartum follow up, lactation services and abortion services.”
The new ICE policy — which ends “the presumption of release” — reverses the agency’s previous position from August 2016 to release pregnant women unless their detention was mandatory or when “extraordinary circumstances” warranted detention. The policy would “apply equally” to pregnant detainees seeking asylum and other forms of humanitarian relief as well as protection from removal.
Although the new policy guidelines appear to provide medical care, the ICE agency and its detention facility operators have not in the past been known to abide by the less harsh policy directive from before
Last September before this current directive took effect, ten women — including one woman who had a miscarriage — filed a complaint against the U.S. Department of Homeland Security alleging that immigration officials failed to enforce its old policies on the detention and treatment of pregnant women. Between October 2016 and September 2017, a total of 525 pregnant detainees were taken into ICE custody, the Los Angeles Times reported, with 33 still detained by late September.
The shocking tales of inhumane practices pregnant detainees face prompted some congressional members in November 2017 to call on the federal Government Accountability Office to investigate practices and guidelines.
“[W]e are concerned that federal agencies do not have adequate guidelines or enforcement of policies to protect pregnant detainees and inmates,” a letter sent by 32 congressional members read in part. “We request that the Government Accountability Office examine the situation of pregnant inmates and immigrant detainees to better understand efforts taken to protect them and their fetus, as well as to protect the bond between the mother and child.”
“Many of these vulnerable pregnant women are escaping gang-related violence and sexual abuse,” Congressional Hispanic Caucus (CHC) Chairwoman Rep. Michelle Lujan Grisham (D-NM) said in a press statement Thursday to denounce the policy. “Instead of ensuring these women have access to the care and support they need, this policy will force pregnant women to be housed in unsafe, highly stressful and controversial detention facilities. Several published reports have described instances of sexual assault, abuse, harassment and even deaths in detention. No expectant mother should be housed in such facilities.”