Introduction

On December 14, 2017, the U.S. Immigration and Customs Enforcement (ICE) released a new directive titled “ICE Directive 11032.3: Identification and Monitoring of Pregnant Detainees” [PDF version]. The new policy codifies existing ICE practices on the subject along with modifications to bring the ICE detention policies for pregnant detainees in line with the relevant directives of President Donald Trump’s January 25, 2017 Executive Order 13768, titled “Enhancing Public Safety in the Interior of the United States” [PDF version] [see article on implementing memo].

In this article, we will examine both the new ICE Directive on pregnant detainees and an associated “FAQ” published by ICE on March 29, 2018 titled “FAQs: Identification and Monitoring of Pregnant Detainees” [PDF version].

Overview of the New Policy

The new ICE policy codifies parts of preexisting ICE policy on pregnant detainees while making certain significant changes.

First, the ICE policy codifies existing practices regarding the identification of pregnant detainees and policies to ensure that they receive proper prenatal and postpartum care while in detention.

Second, the new ICE policy ends the presumption of release for pregnant alien who are not otherwise subject to mandatory detention under the INA. Under prior policy, a pregnant alien who was not subject to mandatory detention would only be detained under “extraordinary circumstances.” Under the new policy, custody determinations for pregnant women will be made on a case-by-case basis, taking into consideration whether detention is necessary to effectuate removal, whether the alien presents a flight risk or danger to the community, and other relevant factors. However, ICE stated that in the case of a pregnant woman in the third trimester, it will generally only use detention in “extraordinary circumstances.” The new policy was implemented in accord with the requirements of President Trump’s Executive Order 13768, which requires that the immigration laws be enforced against all removable aliens.

Examining the ICE Directive

The Directive begins by stating the overall ICE detention policy regarding pregnant detainees.

In general, a detention facility must notify ICE when a pregnant detainee is identified in its custody. It is ICE policy to identify pregnant detainees and provide appropriate care.

Specifically, Enforcement and Removal Operations and Homeland Security Investigations agents are required to notify their Field Office Directors and Special Agents in Charge, respectively, when they arrest and detain a pregnant alien in ICE custody. After a Field Office Director has received notice of the administrative arrest of a pregnant alien who will be detained in ICE custody, the Field Office Director will notify the local Field Medical Coordinator.

The Directive then sets forth the specific responsibilities of each of the aforementioned ICE components.

ERO Field Office Directors are responsible for ensuring that proper systems are in place for notifying the relevant ICE components that a pregnant detainee has been arrested and is or will be in ICE custody. They are also responsible for ensuring that detention facilities are aware of their obligations regarding pregnant detainees, including the requirement that pregnant detainees receive appropriate medical care and are placed in or transferred to facilities that can provide appropriate medical treatment. Please see our full article to learn about policies for ICE detainee transfers [see article]. Field Office Directors must also ensure that proper monitoring, in coordination with the ICE Health Service Corps, is in place for pregnant detainees. Finally, ICE Field Office Directors are responsible for ensuring that Enforcement and Removal Operations officers “are aware of policy related to the use of restraints for pregnant detainees.”

Homeland Security Special Agents in Charge are responsible for ensuring that Homeland Security Investigations agents provide notification when a pregnant individual is arrested, and for notifying the Field Office Director when a pregnant alien is detained in ICE custody. Furthermore, the Homeland Security Special Agents in Charge are responsible for ensuring that Homeland Security Investigations agents are aware of ICE policies relating to the use of restraints for pregnant detainees.

Next, the Directive sets forth the responsibilities for ICE Health Service Corps personnel. These personnel are responsible for notifying both the Field Office Director and the ICE Health Service Corps HQ when a pregnant detainee is identified. They, in conjunction with the Field Office Director, are responsible for monitoring the condition of pregnant detainees and the medical condition of the fetus. ICE Health Service Corps personnel must oversee and review detention facility to ensure that they are capable of providing adequate care to pregnant detainees. Where are not capable, ICE Health Service Corps personnel are responsible for recommending when a pregnant detainee’s transfer to a different facility is necessary for appropriate medical care. Finally, they are responsible for “[d]eveloping and maintaining a system for tracking and monitoring all pregnant detainees in ICE custody.”

Enforcement and Removal Operations personnel are responsible for consulting with both Field Office Directors and ICE Health Service Corps personnel on custody determinations and detention facility placement decisions for pregnant detainees. They must also provide case, location, and status information “as appropriate to assist [ICE Health Service Corps personnel] with tracking and monitoring pregnant detainees.”

Finally, ICE officers and agents are responsible for notifying the appropriate Special Agent in Charge or Field Office Director through their chain of command when any pregnant individual is arrested and detained in ICE custody. Such notification must be made “as soon as practical.”

Examining the ICE FAQ

The Directive itself is for the use of appropriate DHS officials. The ICE FAQ on pregnant detainees clarifies the effect of the new pregnant detainee policy in plain terms.

First, ICE explained that it “has ended the presumption of release for all pregnant detainees.” Thus, under the new policy, where a pregnant detainee is not subject to mandatory detention under the INA, “ICE will complete a case-by-case custody determination taking any special factors into account.” Under the previous ICE detention policies for pregnant detainees, detention was only used in cases where it was mandatory under the INA or otherwise under “extraordinary circumstances.” ICE explained that it had adopted the new policy in accord with President Trump’s Executive Order 13768, which requires it “to enforce the immigration laws of the United States against all removable aliens.” Thus, ICE has decided that it will now exercise discretion with regard to pregnant detainees on a case-by-case basis instead of providing a blanket exemption from the immigration laws to an entire category of aliens.

For pregnant aliens who are detained, ICE stated that its detention facilities “will continue to provide onsite prenatal care and education, as well as remote access to specialists for pregnant women who remain in custody.” ICE detention facilities will also “ensure[] access to comprehensive counseling and assistance, postpartum follow up, and in certain cases, abortion services.”

ICE made clear that the new policy does not mean that all pregnant aliens will be detained. Instead, pregnant aliens who are not otherwise subject to mandatory detention will be detained only in cases where “detention is necessary to effectuate removal, as well as [in cases where the alien is] deemed a flight risk or danger to the community.” As a general matter of policy, “absent extraordinary circumstances, ICE will not detain a pregnant alien during the third trimester of pregnancy.”

ICE made clear that its new policies will apply to pregnant women claiming asylum or other forms of immigration relief. However, it does not prohibit pregnant women from seeking any form of relief or protection under the immigration laws for which they may be eligible.

Conclusion

An alien who is administratively arrested and facing detention should consult with an experienced immigration attorney. In addition to ensuring that the alien’s rights and interests are protected regarding detention and that the alien is afforded the opportunity to make a case that he or she should not be subject to detention (where mandatory detention does not apply), an attorney may also provide the alien with counsel for removal proceedings.