The Biden administration on Friday unveiled policy limiting the Immigration and Customs Enforcement (ICE) detention of pregnant individuals, stating that federal immigration officials will not detain pregnant immigrants “unless release is prohibited by law or exceptional circumstances exist.” While advocates called the administration’s policy a step in the right direction, they remained cautious.
That’s because the Obama administration had a policy that generally called for the release of pregnant immigrants, yet hundreds were detained in 2016 alone. The following year, the previous administration did away with that that policy, resulting in the detention of thousands of pregnant individuals through 2018. Biden’s policy reverses that reversal, and goes further than Obama’s policy. But whether ICE follows it is a huge worry. “While this policy is a positive step, the discretion it gives ICE is concerning,” Detention Watch Network responded.
Filmmaker and journalist Cristina Costantini called the policy change “incredible and long overdue,” but said “the challenge will be holding the agency to this. In 2012, back in my reporter days, an ICE spokesperson told me that they didn’t detain pregnant women at all. I spent the next year finding hundreds of pregnant detainees in the system.”
A complaint filed with the Department of Homeland Security Office for Civil Rights and Civil Liberties and Office of the Inspector General on behalf of pregnant individuals in 2017 noted the ICE failed to fully abide with its own policy, leaving pregnant individuals to languish in harmful conditions. “Several women report being ignored by detention staff when requesting medical attention or experiencing serious delays even during health emergencies involving severe bleeding and pain,” the complaint said. Teresa, one woman described in the report, was four months pregnant when she suffered a miscarriage while in detention.
“Following the miscarriage, Teresa continued to experience serious medical issues including heavy bleeding,” the complaint continued. “Her attorney again requested her release on humanitarian parole on August 22, 2017, which ICE denied.” The report said that the “conduct of ICE officials in several of the case examples described in this complaint appear to be in direct violation of ICE policy and relevant guidance.”
It’s unclear if the Biden administration’s policy also applies to Customs and Border Protection (CBP) detention. Three women told BuzzFeed News in 2018 that they were pregnant when they were shackled and thrown into CBP detention, “where they were denied medical care during their first weeks in custody. All said they miscarried while in custody … Shackling is prohibited by ICE and CBP’s most recent standards-of-care policies as well as by a congressional directive.”
“After the devasting[sic] impact of the Trump administration’s policies, we are heartened to see today’s newly issued guidance and hope this indicates a shift in ICE’s policy and practice once and for all,” Katharina Obser of the Migrant Rights & Justice Program at the Women’s Refugee Commission said in a statement received by Daily Kos. “Given that the guidance does not rule out detention altogether, we will watch closely to ensure the U.S. government is held to account to meaningful implementation of the new guidance, at the same time as we work to end the unacceptable jailing of those seeking protection and those in U.S. communities.”
That last sentence raises an overall point, which is that ICE always has the discretion to just let immigrants pursue their immigration cases from their own homes, in freedom. Yet ICE detention numbers have nearly doubled from April, despite pleas from lawmakers and advocates that it not again detain immigrants released due to the pandemic. ICE is endangering thousands through its actions, because it still has no official, nationwide vaccination plan in place. Of course, as detention numbers have skyrocketed, so have positive cases.
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