Tipsheet

ICE Will No Longer Arrest Pregnant Women in the U.S. Illegally

Carson Swick
Carson Swick  |  July 12, 2021 2:00 PM

In a reversal of Trump-era immigration policy on Friday, the Biden administration affirmed a U.S. Immigrations and Customs Enforcement (ICE) order to stop the detainment of pregnant and nursing women in the country illegally.

The order, formally known as ICE Directive 11032.4, was issued on July 1 by Acting ICE Director Tae Johnson. Its contents were shared with Congress and publicized on Friday, July 9.

"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...In the very limited circumstances in which detention is necessary and appropriate, ICE must monitor individuals known to be pregnant, postpartum, or nursing detained in ICE custody for general health and well-being, including regular custody and medical reevaluation, to ensure appropriate pre- and/or post-natal and other medical and mental health care," the order reads.

Though the order does not explicitly prohibit ICE from deporting women known to be pregnant, its “exceptional circumstances” clause will make deportations more difficult and the release of pregnant women from ICE custody more common. Its enactment signals a return toward Obama-era immigration policies, when pregnant women were generally spared from detention centers at the United States-Mexico border.

“Given the unique needs of this (illegal immigrant) population, we will not detain individuals known to be pregnant, postpartum or nursing unless release is prohibited by law or exceptional circumstances exist,” Johnson said. “This reflects our commitment to treat all individuals with respect and dignity while still enforcing our nation’s laws.”

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According to The New York Times, ICE detained more than 4,600 pregnant women -- of which more than 400 were held in custody for at least a month. Currently, only about 20 pregnant women remain detained.

ICE’s order was generally applauded by progressive legislators and civil rights groups like the American Civil Liberties Union (ACLU). In a statement, ACLU senior staff attorney Eunice Cho called the Biden administration’s affirmation of the order “a welcome step in the right direction.”

But conservatives remain quite skeptical, with many viewing the order as a simple case of weakening law enforcement. In a tweet on Friday, Sen. Tom Cotton (R-AR) implied that releasing pregnant women from ICE custody creates the potential for human trafficking at the border.

There is also the concern for the well-being of pregnant women and their children. If they are in the country illegally, it is plausible that they owe money or favors to international human smugglers, something the smugglers would certainly exploit to line their own pockets. And of course, the children born to these women are granted American citizenship, further complicating the issues created by setting them free.

Earlier this year, ICE Director Johnson instructed his agency to focus detentions and deportations on migrants with previous criminal convictions, a clear indication that the surge in illegal border crossings has strained the resources of our border agents.