ICE Ends Presumption of Release for All Pregnant Detainees

On March 30, 2018, U.S. Immigration and Customs Enforcement issued a directive entitled “Identification and Monitoring of Pregnant Detainees,” as well as the following FAQ:

What is the new policy?
ICE has ended the presumption of release for all pregnant detainees. Instead, as with all detainees, absent the requirements of mandatory detention, ICE will complete a case-by-case custody determination taking any special factors into account. 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. In addition, ICE ensures access to comprehensive counseling and assistance, postpartum follow up, and in certain cases, abortion services.

What was the old policy?
Prior ICE policy dictated that pregnant women were generally not detained unless their detention was mandatory under the law, or when “extraordinary circumstances” warranted detention.

Why the change in policy?
The policy has been updated to better align with the President’s Executive Order (EO) 13768 Enhancing Public Safety in the Interior of the United States,4 which directs ICE to enforce the immigration laws of the United States against all removable aliens. In accordance with the EO, ICE will allow the exercise of discretion to be made on a case-by-case basis and in a manner that no longer exempts a category of aliens from enforcement of the Nation’s immigration laws.

Why must you detain pregnant women?
ICE is ending the presumption of release. All custody determinations are now made on a case-by-case basis. This does not mean that all pregnant aliens will be detained; only those whose detention is necessary to effectuate removal, as well as those deemed a flight risk or danger to the community. Generally, absent extraordinary circumstances, ICE will not detain a pregnant alien during the third trimester of pregnancy.

Isn’t detaining pregnant women a human rights abuse?
ICE 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.

What about pregnant women claiming asylum?
This policy would apply equally to pregnant detainees pursuing asylum and other forms of relief or protection from removal. The policy does not prohibit any pregnant detainees from seeking asylum or any other form of relief or protection from removal.