ICE’s policy for detention of pregnant immigrants is a new low

Photo by U.S. Immigration and Customs Enforcement

It seems there is no end to the Trump administration’s incessant barrage of attempts to upend U.S. immigration laws and policy. In a directive issued on December 14, 2017 and recently made public by the news media, Immigration & Customs Enforcement (ICE) made the detention of pregnant women its default policy, reversing Obama-era precedent discouraging such detentions in most circumstances.

Going out of its way to change a policy that saved taxpayer dollars and spared pregnant women the hardship of detention is a new low, even for this administration. It means that pregnant women will be less likely to find lawyers to represent them in court, to receive support from their family members and community and to access the medical care they need. Women who make the dangerous trek to the United States are often fleeing for their lives. The trauma of detention could lead some to give up their asylum claims and choose deportation over the prospect of prolonged detention while pregnant — a choice that can be fatal for women fleeing violence, persecution or abuse. No woman should have to make that choice.

Three major medical groups specializing in the care of women and children—the American Academy of Pediatrics, the American College of Obstetricians and Gynecologists and the American Academy of Family Physicians—urged ICE to reverse the decision, declaring “the conditions in DHS facilities are not appropriate for pregnant women or children.”

As a senior policy advisor at the Women’s Refugee Commission (WRC), I know how harmful detention is to pregnant women. Although immigration is supposed to be a civil matter, immigrants are routinely held in jails and jail-like facilities. Bathrooms provide little privacy. Some facilities don’t have shower curtains or barriers between toilets. There is often little sunlight and not enough access to the outdoors. On one of my visits to a detention center in Georgia, a pregnant woman suffering from severe back pain told me she had requested a second mattress to help with the pain. Her request was denied.

Detention facilities have no obstetric/gynecologic staff on site, making access to prenatal care sporadic at best. In extreme cases, women have suffered horrific miscarriages while in custody. In September, WRC joined seven other organizations in filing a complaint with the Department of Homeland Security’s (DHS) internal oversight offices on behalf of ten pregnant women. The complaint documented how ICE’s treatment of these women violated not only basic human rights, but also the agency’s own policy at the time. In October, seventy Democratic members of Congress wrote a letter to DHS demanding accountability for the way these and other women are being treated. ICE has yet to formally respond, and only recently did DHS commit to doing so.

ICE insists its agents will evaluate the detention of pregnant women on a case-by-case basis, and that women in their third trimester are not detained “absent extraordinary circumstances.” Not only does ICE have a particularly lousy track record of making detention decisions based on truly individualized circumstances, its pledge to use discretion fails to hold water. As just one example, the agency now rarely permits asylum seekers to pursue their cases outside of detention. The freedom of pregnant women is now subject to the discretion of an agency notoriously unwilling to use it, even in the most clear-cut humanitarian circumstances.

As of late March, ICE said that all of the pregnant women in its custody were subject to what is called “mandatory detention,” meaning the government will not consider their release. But mandatory detention is routinely applied in cases where there is no criminal history and no public safety risk, and ICE always has discretion as to whether or not to subject someone to mandatory detention in the first place.

In previous years, ICE has used its discretion to avoid detaining pregnant women or to release them quickly, especially if it was determined that they had legitimate claims to asylum. If a pregnant woman was detained, ICE agents had to regularly reassess whether her detention was still necessary. That requirement has been removed. ICE is using its discretion to expand, rather than limit, the use and length of detention.

Presumptive detention of pregnant women is both inhumane and unnecessary. Absent truly extraordinary circumstances, pregnant women should not be detained. Other options include parole, release on recognizance or release with some reporting requirements. Last year, ICE discontinued the Family Case Management Program, a program that emphasized case management and access to social services for families. A similar model would be particularly suited for pregnant women, at a fraction of the cost of detention.

ICE’s new guidelines represent yet another attack on immigrants by this administration. There is no justification for this costly and cruel policy, which will not make us any safer. ICE must change course, stop traumatizing women when they are exceptionally vulnerable and return to a policy of basic human decency.

Katharina Obser

Senior policy advisor, Women's Refugee Commission

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