Biden Will End Detention for Most Pregnant and Postpartum Undocumented Immigrants

Like the president’s other immigration policies, the protections could disappear under a future administration because they are not being created through legislation.,

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WASHINGTON — The Biden administration will ease restrictions placed on undocumented people who are pregnant, postpartum or nursing, the latest change in its broader efforts to soften immigration detention policies put in place by former President Donald J. Trump.

Under the new policy, Immigration and Customs Enforcement officers generally will not detain or arrest people who are pregnant or nursing, or who had a baby within the previous year, according to a draft of the plan shared with The New York Times and a person familiar with the policy. The language in the policy will be gender neutral, acknowledging that transgender men can give birth — another departure from past directives.

The number of pregnant immigrants in detention increased sharply under Mr. Trump, who reversed a policy put in place in 2016 by President Barack Obama that called for detaining them only under extraordinary circumstances.

Since 2016, ICE has arrested undocumented pregnant immigrants more than 4,000 times, according to internal government data shared with The Times. The number in custody has fallen more recently, partly because of measures to reduce the number of people in congregate settings who are at greater risk of contracting Covid-19. There are currently fewer than 20 such immigrants in custody, staying for an average of three days.

Immigration advocates welcomed President Biden’s new policy, which they said went even further than the 2016 version that was issued when he was vice president. But like Mr. Biden’s other immigration policies to date — all of which have been made through executive orders or directives and not codified in law — protections for undocumented pregnant and postpartum immigrants could disappear under a future administration, just as Mr. Trump rewrote Mr. Obama’s policy.

“Any change in presidential administration can materially change people’s lives, especially immigrants and folks who are kind of trying to navigate their way through the immigration system,” said Breanne J. Palmer, a lawyer with UndocuBlack Network, which advocates for current and formerly undocumented Black people in the United States.

“People who endure detention when they’re pregnant or nursing, you know, they really have very little recourse,” Ms. Palmer said.

Though the new policy will affect only a small number of immigrants, it could rankle some conservatives who previously supported an effort by Mr. Trump to nullify the constitutional guarantee of birthright citizenship, in part to deter migrants from trying to get into the country to deliver babies.

Ms. Palmer’s organization was among a number of immigration advocacy groups that filed a complaint in March with the Department of Homeland Security, ICE’s parent agency, about how pregnant immigrants had been treated in detention centers between February 2020 and February 2021. The complaint included descriptions of pregnant detainees not getting needed medical care.

Advocacy groups separately sued Customs and Border Protection this month for records since 2020 on pregnant migrants and how they were treated in government custody. The suit came after reports of the Trump administration deporting migrant women and their babies, who had been born days earlier in the United States. Some of the women, the advocates said, had come here to request asylum but were sent back, usually to Mexico, without a birth certificate documenting their babies’ U.S. citizenship.

The new Biden policy will not apply to pregnant, postpartum or nursing migrants in the custody of Customs and Border Protection. Border Patrol agents are typically the first American law enforcement officials to encounter migrants who cross the border, and they typically hold them for only a few days before transferring them to ICE custody.

A Customs and Border Protection spokesman said he could not comment on pending litigation.

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Griselda, left, and Maybel with newborn babies at a shelter in Matamoros, Mexico in 2019. Both women entered the United States while pregnant, but were deported back to Mexico where they delivered their babies.Credit…Lynsey Addario for The New York Times

Policies that govern the detention or incarceration of pregnant citizens vary across the country. Most states ban the shackling of pregnant women during labor, as well as other restraints. Fewer have banned restraints throughout the entire pregnancy, according to data collected by the American College of Obstetricians and Gynecologists.

Andrea Meza, the director of family detention services at the Refugee and Immigrant Center for Education and Legal Services, or Raices, a nonprofit organization, said she and other advocates were hoping for a policy that banned the detaining of undocumented pregnant immigrants or those with infants under any circumstance. A person familiar with the new policy said an extraordinary circumstance in which a pregnant immigrant was detained would be if the immigrant committed a violent crime. Ms. Meza said the Obama administration’s policy — which allowed for pregnant women detained for immigration violations to be released while they awaited deportation proceedings — did not go far enough, leaving out protections for nursing immigrants, for example.

The Trump administration ended that policy in December of 2017. After human rights advocates learned about the change in 2018, they increased their focus on the health of detained pregnant immigrants, arguing that they were not getting the prenatal care they needed.

Vice President Kamala Harris was among a group of Democratic senators in 2018 who raised concerns about the treatment of pregnant people in ICE custody, after the Trump administration restarted the practice of detaining them.

The issue gained more attention the next year, after a 24-year-old Honduran woman in ICE custody delivered a stillborn baby boy. She had been arrested a week earlier by Border Patrol agents in Texas, near the border community of Hidalgo, and told authorities she was six months pregnant. Homeland Security officials said the woman was taken to the hospital after she was apprehended A few days later, she was discharged into ICE custody, where she soon complained of abdominal pain. A clinical director at the agency said she needed to go back to the hospital, but she went into labor before getting there.

An ICE spokeswoman at the time said there was no information to suggest that the woman’s detention had been a factor in the stillbirth. Still, between October 2016 and August 2018, 28 women “may have experienced a miscarriage just prior to, or while in ICE custody,” the spokeswoman, Danielle Bennett, said.

Mr. Biden has used executive orders to reverse a number of Mr. Trump’s immigration policies, including accepting more requests from asylum seekers, easing travel and visa restrictions and changing the categories of undocumented immigrants that law enforcement should prioritize for enforcement actions. Legislative fixes, however, that could provide a legal path for families seeking asylum to enter the country, appear increasingly out of reach.

John Hudak, a senior fellow in governance studies at the Brookings Institution, said that uncertainty about how long a policy would remain in place “creates enormous instability” that can interfere with governing.

“It can really begin to gut the agencies, it can gut agency expertise,” he said, if, for example, a policy change leads to staff cuts but the next administration decides to “just flip the switch back on.”

This has been the case for what became one of the administration’s earliest and greatest challenges: sheltering migrant children and teenagers who have been arriving alone and in record numbers at the country’s border with Mexico.

Mr. Trump had been turning away the children under a special public health rule put in place during the pandemic. When tens of thousands of unaccompanied children started entering the country this spring after Mr. Biden reversed the policy, the previous cuts to the program left federal authorities without enough space to shelter them or enough staff to safely place them with family members already in the country.

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