ICE Not Following Its Own Rules on Releasing Pregnant People

"We were incredibly critical of how the Obama administration expanded detention and deportation, but the biggest difference under the Trump administration is what appears to be a total lack of concern for the welfare of immigrants in custody."

By holding pregnant women, ICE is in direct violation of its own memo and of "accepted medical standards and practices concerning pregnant women," according to the organizations behind a complaint. John Moore/Getty Images

Immigration and Customs Enforcement (ICE) in August 2016 issued a policy recommending that pregnant people “generally not be detained.” Aside from incidents of mandatory detention or extraordinary circumstances, ICE followed that strategy.

But there are indications that the federal immigration agency has revoked that policy and is now detaining pregnant people “at the rate of one per day,” according to advocates.

These are women like Sara, a 27-year-old Honduran woman, and Emma, who migrated to the United States from El Salvador with her five-year-old son. Both were detained at the South Texas Family Residential Center in Dilley, Texas, one of the nation’s three family detention centers. After being raped, Sara fled Honduras with her 8-year-old daughter. After experiencing violence and receiving death threats in El Salvador, Emma was raped and tortured in Mexico while en route to the United States. Upon being taken into custody, both women informed immigration officials that they were pregnant, yet they remained detained by ICE. Sara was released after a week, while Emma and her child were detained for at least 20 days.

Cases like Sara’s and Emma’s have been detailed in an administrative complaint filed with the Department of Homeland Security (DHS) on behalf of pregnant people detained by ICE. The organizations behind the complaint assert that ICE has failed to implement its policy limiting the detention of pregnant people, while subjecting them to inhumane conditions and inadequate medical care. These organizations include the American Civil Liberties Union, the American Immigration Council (AIC), the American Immigration Lawyers Association, the Center for Refugee and Gender Studies, the Northwest Immigrant Rights Project, Refugee and Immigrant Center for Education and Legal Services (RAICES), and the Women’s Refugee Commission.

Emma, in the complaint, details her fears concerning her pregnancy and her experiences in the U.S. immigration system after presenting herself as an asylum seeker at the port of entry, in accordance with asylum law:

I wanted to explain to the immigration officer who processed me about my rape and show him that my fingernails were missing [as part of the torture inflicted on her], but he said, “No, don’t tell me anything. You all say the same thing.” I told the immigration officials at the border that I might be pregnant but that I was bleeding. They took me in a car to a hospital. I was given two ultrasounds: one of my stomach and one of my vagina. The doctor told me that I was pregnant and that my pregnancy was high risk. He told me that I have an infection, and gave me pills.

I was taken back to the border, where we slept in the cold on very thin mattresses. Most people were given only aluminum blankets but I as given a real one. I still could not sleep, however, because there were so many children crying. I could not eat because the smell of food makes me want to vomit.

All of these experiences have been very traumatizing for me. I have not heard any news of my four children, but am afraid to try to contact them because of my husband. I also know that my husband will kill me if he ever finds out that I got pregnant by another man. At the same time, I do not want to have this baby, and especially not from rape. However, I am from a Christian church and know that it would be a sin not to have the baby and am afraid of having a miscarriage due to my big-risk pregnancy. It is very stressful for me to be in detention while going through all of these difficult emotions, and not feeling well.

Katie Shepherd, the national advocacy counsel for the Immigration Justice Campaign at AIC, said ICE detaining pregnant women on a daily basis becomes “more significant” if the context is understood: Many of the women are pregnant as a result of rape. Eighty percent of Central American girls and women crossing Mexico en route to the United States are raped along the way, according to a 2014 report from Fusion.

Beginning in the fall of 2015, Shepherd spent nearly a year working as AIC’s managing attorney at Dilley. If members of AIC encountered a pregnant person in the detainee population, they would notify ICE if the agency hadn’t caught it during the medical screening at intake. Those people, almost immediately, would be transferred out of Dilley.

In November 2016, Shepherd noticed a shift. This was during the time when Haitian immigrants were being detained in large numbers and Shepherd experienced difficulty securing the release of a pregnant Haitian woman. In early 2017, pregnant people were “sporadically being detained,” but the national advocacy counsel said that in recent months there has been a “huge uptick” in the number of pregnant people detained. Shepherd says it’s her estimation that one new pregnant woman a day is being detained and unlike before, women aren’t being released until after they pass their credible fear interview. Pregnant people were once released immediately no matter where they were in the asylum process, which includes a credible fear interview with an asylum officer to determine if they have legitimate reasons to fear returning to their country of origin. If they fail this interview, they are deported. 

“Not only have women experienced a lot of trauma from being raped, from the violence they are fleeing [in their countries of origin], but then they have the experience of being detained while pregnant and the pressure of having to pass this life-altering interview while enduring all of this. It can’t be overstated how these conditions have a negative impact on their case and impact their ability to present their case,” Shepherd said.

Amy Fischer, policy director at RAICES, told Rewire that ICE’s policy regarding pregnant people in detention likely came about because of the type of concerns advocacy organizations outlined in their complaint to DHS.

“As our complaint details, women are currently experiencing miscarriages because of terrible medical care, as well as complications to their pregnancy because of inadequate medical care. In 2016, ICE recognized there were dangers associated with detaining women who are pregnant. Its policy was an attempt to address this, but now we’re seeing them backtrack on it,” Fischer said.

Fischer, whose organization RAICES primarily works with women in family detention, said that until very recently, ICE had a clear policy on how it treated women in the detention system: Girls and women ages 10-56 were given pregnancy tests upon intake into a facility. If they were found to be pregnant, they were released from detention within 24 hours. The complaint details multiple instances in which pregnancy tests issued by ICE came out as negative, though the women were later found to be pregnant. Shepherd said this is illustrative of the care that people in detention receive, but nevertheless, when advocacy organizations who were working directly with women in detention suspected a woman was showing signs of pregnancy, she was referred to ICE, who issued another pregnancy test. If the results were positive, she was released.

“Everyone who is part of the complaint has had different experiences with ICE as it relates to its policy concerning pregnant women, but what we all had in common was the experience that getting a pregnant woman out of detention wasn’t hard. All of our experiences over the last couple of months seems to indicate that there may have been an internal memo or communication of some kind that informed staff ICE’s previous policy was being changed or revoked because the new approach of holding women who were pregnant until after they passed their credible fear interviews appears widespread. We’re seeing this at Karnes and Dilley [family detention centers] and at detention centers around the country,” Fischer said.

There has been a sizable increase in the detention of women migrants under President Trump. As of April 2016, around 4,829 women were detained in ICE facilities, including family detention centers, constituting 14.6 percent of the total detained population in ICE custody that day, according to information obtained through a Freedom of Information Act (FOIA) request on file with the Women’s Refugee Commission. Immigration arrests of women increased by 35 percent in the first four months of 2017, compared to the same period in 2016, KUOW reported, and “292 pregnant women were held in ICE detention centers nationwide” during the first four months of this year.

ICE told Reveal that as of September 13, it was holding 33 pregnant people in custody.

Shepherd told Rewire that none of the pregnant people in detention she has encountered were subject to mandatory detention or being held because of “extraordinary circumstances,” which translates to being considered flight risks or having criminal histories. That means there’s no reason ICE should have held them after confirming they were pregnant, Shepherd said. 

By holding pregnant people, ICE is in direct violation of its own memo and of “accepted medical standards and practices concerning pregnant women,” according to the organizations behind the complaint. But ICE is also in violation of larger standards of care, including the Performance Based National Detention Standards (PBNDS) addressing medical care for women and ICE Family Residential Standards.

Family Residential Standards are vague, saying only that “female residents will have access to pregnancy testing and specified pregnancy management services.” Under certain circumstances, abortion care is provided in the PBNDS, but abortion is not outlined in the Family Residential Standards that apply to family detention centers, which is where Central American asylum seeking women who migrated with their children are detained. In other words, the people most likely to experience rape migrating to the United States may not have abortion as an option once they are inevitably funneled into family detention.

Shepherd said ICE should immediately release anyone found to be pregnant, but if the agency is going to revoke its policy, the least ICE officials could do is offer specialized care and all of the services outlined in the PBNDS and Family Residential Standards, as well as counseling.

“One thing that’s not stressed enough in any of the standards is access to psychological services,” Shepherd said. “There is overlap between a person’s mental state and the physical symptoms they are experiencing, all of which translate to additional obstacles women face when presenting their cases.”

Shepherd has encountered numerous cases in which people in detention have had to ask for specialized care repeatedly, including when they were bleeding, experiencing back and stomach pain, or showing other signs of complications. In some instances, it was known by ICE that these people had high-risk pregnancies.

Advocates said ICE is attempting to justify detaining pregnant people by claiming it’s an effort to give them access to counsel. Fischer told Rewire that an attorney with RAICES working at Karnes, a family detention center in Texas, was told by ICE that pregnant people were being detained “to help them have their credible fear interview, because they were previously missing out on that process.” Anyone with a valid asylum claim can apply for asylum without ever being detained, so ICE’s assertion is “dishonest at best,” according to Fischer.

“One of my biggest concerns is that under Trump, the detention system will only expand and there has already been a lot of talk about reducing the standards in these facilities. We were incredibly critical of how the Obama administration expanded detention and deportation, but the biggest difference under the Trump administration is what appears to be a total lack of concern for the welfare of immigrants in custody,” Fischer said. “We’re already seeing a lot of in-custody deaths. Our fear is that no concern will be shown regarding the fact that ICE is detaining vulnerable pregnant women who have experienced a great deal of trauma already. Not only will they be detained, but they are being detained in facilities under inhumane conditions with substandard medical care, and they have very little recourse to hold anyone accountable.”