What is the new policy?
The new policy states that ICE generally will not detain 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. It also requires notification to and approval from senior field leadership before issuing a detainer or arresting for an administrative violation of the immigration laws an individual known to be pregnant, postpartum, or nursing, unless exceptional circumstances exist.
The Directive requires approval by the Field Office Director, or a designee not below the Assistant Field Office Director level, for the detention of individuals known to be pregnant, postpartum, or nursing. If a pregnant, postpartum, or nursing individual is detained, the new policy requires at least weekly re-evaluations to determine if continued detention is appropriate and required. The Directive continues to require ongoing monitoring, tracking, and communication regarding all individuals known to be pregnant, postpartum, and nursing detained in ICE custody. Further, it also requires monthly reporting to the ICE Director.
What was the prior policy?
The prior policy generally permitted the detention of pregnant individuals, established notification requirements when pregnant individuals in ICE custody were identified, and governed the transfer of pregnant individuals from one detention facility to another based on medical needs. Detention decisions were made on a case-by-case basis and required consultation with, but not approval from, the Field Office Director. The prior policy did not address postpartum or nursing individuals.
Why the change in policy?
ICE determined detaining pregnant, postpartum, or nursing individuals for administrative proceedings is generally not in the public’s interest. This new policy reflects our commitment to treat all individuals with respect and dignity while still enforcing our nation’s civil immigration laws.
Under what circumstances will ICE detain a pregnant, postpartum, or nursing individual?
ICE will generally only detain a pregnant, postpartum, or nursing individual when their release is prohibited by law or exceptional circumstances exist.
What are the “exceptional circumstances” you mention where a woman could be detained anyway? Who will make that determination?
Exceptional circumstances exist only in the following circumstances: (1) the individual poses national security concerns; or (2) the individual poses an imminent risk of death, violence, or physical harm to any individual.
How does ICE determine what is appropriate pre- and/or post-natal care?
Each pregnant detainee receives a full medical assessment by a qualified medical professional, including a review of any high-risk factors. ICE Health Services Corps (IHSC) will monitor the care provided and ensure there is access to timely pre-natal and post-natal appointments or specialty care as appropriate, and that there are not concerns about the appropriateness of care at any given facility.
How are you defining “postpartum”?
For the purposes of this Directive, postpartum is defined as the one-year period immediately after an individual gives birth to their child.