The policy adds to the growing list of immigrants exempt from arrest or deportation for violating civil immigration laws. Critics have said that Biden is abandoning his responsibility to enforce U.S. laws, but the president has said he wants a more humane approach to immigration, especially for parents and children arriving in increasing numbers from regions such as Central America.
ICE officials said in a statement that the new policy takes into greater account the “health and safety” of expecting and new mothers and recognizes “the time needed for infant development and parental bonding.”
“ICE is committed to safeguarding the integrity of our immigration system and preserving the health and safety of pregnant, postpartum, and nursing individuals,” acting ICE director Tae 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.”
The agency administers pregnancy tests to female detainees after they are taken into custody as part of its regular health screenings, and some discover that they are pregnant after the test. In those cases, the policy says, ICE should “generally” release them from custody.
Pregnant and postpartum women may still be detained in “very limited circumstances,” the policy said, when the woman “poses an imminent risk of death, violence, or physical harm” or is a national security concern. A field office director must approve the arrest and detention and ensure that the women receive medical care.
The policy revokes a 2017 Trump administration directive that “ended the presumption of release for all pregnant detainees.” ICE detained nearly 2,100 pregnant women the following year, a 52 percent jump over the last calendar year of the Obama administration, according to a Government Accountability Office report.
Most pregnant women detained in recent years have been apprehended after crossing the U.S.-Mexico border seeking refuge in the United States, according to the GAO. Most did not have prior criminal records.
Proponents of immigration enforcement argue that ICE must detain immigrants to ensure their deportation. Releasing pregnant women in the United States to await an immigration court hearing virtually guarantees that their children will be born here and automatically granted the benefits of U.S. citizenship, they say.
Advocates for immigrants counter that detaining pregnant and postpartum women endangers their physical and mental health. Some women were raped as they fled to the United States. Others complained of inadequate health care in detention.
The new directive does not limit the “temporary placements” of pregnant women in “family staging centers” in South Texas, where several hundred pregnant women traveling with children have passed through this fiscal year, according to ICE data.
The Biden administration ended family detention earlier this year, and is instead releasing most migrant families within 72 hours to await a hearing in immigration court.
Thirteen pregnant women were in ICE custody as of Thursday, and they are being considered for release under the new policy, officials said.