Trump Administration’s Latest Attack on Immigrants: Detaining Pregnant People

An attorney with the American Immigration Council finds ICE’s new policy "extra alarming" given the added context that the Trump administration is also moving to both “lower standards in detention centers and crack down on due process for immigrants in detention, creating extra barriers for individuals to have a meaningful day in court.”

[Photo: An pregnant immigrants stands next to a U.S. Border Patrol truck.]
ICE had rolled out this new directive long before this week, according to advocates. John Moore/Getty Images

Back in January 2017, advocates working with immigrant women in federal detention centers began noticing a “huge uptick” in the number of pregnant people Immigration and Customs Enforcement (ICE) had placed into custody in an apparent violation of its own policy. ICE is now officially operating under a new directive: Pregnant people will remain detained.

The Hill released the new directive on Thursday, detailed in internal ICE documents reviewed by the publication, on the same day it was set to take effect. ICE director Thomas Homan issued the internal directive, called “Identification and Monitoring of Pregnant Detainees,” in December 2017.

Under the new policy, it appears that individual ICE agents will make a “case-by-case custody determination taking any special factors into account” when processing pregnant detainees, the Hill reported. ICE officers are also to “treat pregnant detainees as they would any other, save for providing the necessary medical care and keeping a record of pregnant women in custody,” said the Hill.

But, according to advocates, ICE had rolled out this new directive long before this week. As Rewire News reported in September 2017, ICE was detaining pregnant people at the rate of one person per day—a seeming departure from its August 2016 policy that pregnant people “generally not be detained.”

“It’s my belief that this directive certainly began to be implemented before December 2017,” said Katie Shepherd, the national advocacy counsel for the Immigration Justice Campaign at the American Immigration Council (AIC). The AIC was one of several advocacy organizations that filed a complaint with the Department of Homeland Security (DHS) last year over what appeared to be a new policy for detaining pregnant people. “But that’s par for the course for this administration. We’re seeing many government agencies changing internal policies on very specific issues, but not issuing an official guidance on the changes. There is a complete lack of transparency as to what the government is doing, especially to immigrant women.”

The attorney said she first noticed a shift in ICE’s policy around the time when Haitian immigrants reportedly were being detained in large numbers and she experienced difficulty securing the release of a pregnant Haitian woman. 

“What’s really happening is that individual ICE agents are being given power to exercise their discretion with no requirement that they have to consult with medical experts, even though dealing with pregnant women obviously requires a much higher level of medical expertise,” Shepherd said. “Pregnant women frequently require specialized care, and a lot of evidence—and common sense—demonstrates that specialized care is limited in a detention setting.”

Shepherd found last year numerous cases in which people in detention, some of whom had high-risk pregnancies, were asking for specialized care repeatedly, including when they were bleeding, experiencing back and stomach pain, or showing other signs of complications.

Detention centers have become notorious for their lack of sufficient medical care, which has resulted in in-custody deaths, including three that have occurred in fiscal year 2018. The Hill reported that Philip Miller, a deputy executive associate director at ICE, said that the period between Homan’s directive and enactment of the policy, from December to March, was so that ICE could implement “the proper training and infrastructure” to “handle pregnant women.” 

That infrastructure includes, as the internal documents explain, a requirement that the ICE Health Service Corps “will assess detention facilities to determine their ability to meet the needs of pregnant detainees and monitor and track the medical condition of individual pregnant detainees while in ICE custody. When it is determined that a facility cannot provide appropriate medical care in a particular case, the pregnant detainee will be transferred to another detention facility or off-site treatment facility that can provide appropriate medical care.”

Shepherd said the coalition of organizations—including AIC, the American Civil Liberties Union, the American Immigration Lawyers Association, the Center for Refugee and Gender Studies, the Northwest Immigrant Rights Project, the Refugee and Immigrant Center for Education and Legal Services, and the Women’s Refugee Commission—filed their administrative complaint in September 2017 with DHS and the Office for Civil Rights and Civil Liberties on behalf of pregnant people detained by ICE. The organizations reported that the federal immigration agency had failed to implement its policy limiting the detention of pregnant people, while subjecting them to “inhumane conditions” and inadequate medical care.
Previously, as Rewire.News reported, girls and women ages 10-to-56 were given pregnancy tests upon intake into a detention center. If they were found pregnant, ICE released them from custody within 24 hours. The complaint filed last year detailed multiple instances in which pregnancy tests issued by ICE came out as negative, though the women, who believed they were pregnant, later were found to be pregnant. Advocates said this is illustrative of the care that people in detention receive. Nevertheless, when advocacy organizations who were working directly with women in detention suspected a woman was showing signs of pregnancy, an advocate would refer her to ICE, who issued another pregnancy test. If the results were positive, she was released. 

The complaint featured the stories of immigrant women who were raped and tortured in their countries of origin or en route to the United States, only to be detained in some instances for as long as 20 days. In fact, many of the women who are pregnant and detained at the southern border by Border Patrol agents 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.

After they filed their complaint, the organizations began seeing fewer cases of pregnant people detained for extended periods. However, Shepherd is now concerned the new guidance will lead to agents on the ground “feeling obligated to detain pregnant people for longer periods of time,” resulting in a large increase in the prolonged detention of pregnant people. ICE’s new policy outlines how, “absent extraordinary circumstances,” the federal immigration agency will detain people up to the third trimester of pregnancy.

The attorney told Rewire.News that she finds ICE’s new policy for detaining pregnant people “extra alarming” given the added context that the Trump administration is also moving to both “lower standards in detention centers and crackdown on due process for immigrants in detention, creating extra barriers for individuals to have a meaningful day in court.”

Homan’s email outlining ICE’s new directive for detaining pregnant people explained that this policy is intended to “better align with the President’s Executive Order,” a reference to Trump’s anti-immigrant executive order that seeks to criminalize all immigrants in the United States without authorization. 

Multiple advocacy organizations were swift to respond to reports of ICE’s official policy for detaining pregnant people. Jess Morales Rocketto, chairperson of the National Domestic Worker Alliance’s We Belong Together Campaign, said the federal immigration agency is “reaching new lows in its attack on immigrants and its willingness to violate women’s bodies and our rights.” Dawn Laguens, executive vice president of the Planned Parenthood Federation of America, said in a statement that “the Trump-Pence administration is putting pregnant women’s health and lives at risk.” NARAL Pro-Choice America also pulled no punches in its critique of the administration.

“This policy change is part of an increasingly alarming trend of the Trump Administration asserting its power at the grave expense of the health, wellbeing, and rights of women, including pregnant women and immigrants,” said NARAL Pro-Choice America Vice President of Communications and Strategic Research Adrienne Kimmell. “This policy will undoubtedly further jeopardize [the] health of pregnant women in the ICE’s custody, who are already likely facing difficult conditions and need access to health care the most. While the Trump-Pence administration brags about its ‘pro-life’ credentials, it does not blink an eye when it comes to the lives of our most vulnerable populations.”

CORRECTION: A previous version of this article misspelled Adrienne Kimmell’s first name. We regret the error.