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Biden administration directs ICE to avoid detention of pregnant and nursing immigrants

USA TODAY logo USA TODAY 7/11/2021 Courtney Subramanian, USA TODAY
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WASHINGTON – The Biden administration will avoid the arrest of pregnant, nursing or postpartum undocumented immigrants, the latest move by the president to unwind his predecessor's hardline immigration policies. 

The new policy, outlined in a July 1 memo signed by U.S. Immigration and Customs Enforcement Acting Director Tae Johnson, states that the agency generally will not detain or arrest "individuals known to be pregnant, postpartum or nursing unless release is prohibited by law or exceptional circumstances exist." 

In the limited circumstances that pregnant immigrants are detained – if an individual "poses an imminent risk of death, violence or physical harm" – immigration officials should monitor and ensure they receive medical attention, mental health services and pre- or postnatal care, the new policy states. The gender neutral language in the memo is intended to acknowledge that transgender men can given birth, according to a senior administration official.

Pregnant women sit with their families while waiting to board a U.S. Customs and Border Protection bus to an immigrant processing center after crossing the border from Mexico on April 13, 2021 in La Joya, Texas. © John Moore, Getty Images Pregnant women sit with their families while waiting to board a U.S. Customs and Border Protection bus to an immigrant processing center after crossing the border from Mexico on April 13, 2021 in La Joya, Texas.

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The directive reverses a 2017 policy by former President Donald Trump, who ended the Obama-era practice of only detaining pregnant immigrants under extraordinary circumstances. 

The number of arrests of pregnant immigrants soared 80% in 2018, a sharp increase from the number of pregnant women who were detained during the last year of the Obama administration, according to a Government Accountability Report issued last year. The report found that ICE detained pregnant women more than 4,600 times between 2016 and 2018.

The Biden directive expands on the Obama administration policy, which focused on pregnant women. The new memo extends exemptions to individuals who gave birth within a year and women who are nursing, which can be longer than a year. 

“ICE is committed to safeguarding the integrity of our immigration system and preserving the health and safety of pregnant, postpartum and nursing individuals,” Johnson said in a statement. “Given the unique needs of this population, we will not detain individuals known to be pregnant, postpartum or nursing unless release is prohibited by law or exceptional circumstances exist."

Immigration officers are also required to seek permission from a superior before issuing an order of detention or arrest for an individual known to be pregnant, postpartum or nursing, according to the memo. 

Use of restraints on pregnant individuals in ICE custody is largely prohibited, including during transport, at a detention facility or outside a medical facility, the policy  says. Many states already ban the use of restraints on detained or incarcerated pregnant women during labor, but fewer restrict the practice throughout the entire pregnancy term, according to the American College of Obstetricians and Gynecologists.

More: Explainer: Biden White House grapples with challenges of young children arriving without parents at U.S. border

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Immigration advocates and other outside groups have pressured the administration to end the practice of restraining pregnant women in detention centers as well as in prisons. 

Eunice Cho, senior staff attorney with the National Prison Project of the American Civil Liberties Union, welcomed the order as a "step in the right direction." 

"This move brings us closer to more humane treatment by ICE of people who are pregnant, postpartum, or nursing," she said in a statement. "ICE should stop detaining or arresting people who would be at particular risk in detention, must implement robust oversight of detention facilities, and ensure the release of all people who would be particularly vulnerable in detention."

Contributing: Daniel Gonzalez, Arizona Republic

This article originally appeared on USA TODAY: Biden administration directs ICE to avoid detention of pregnant and nursing immigrants

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