U.S. TO STOP DETAINING PREGNANT OR NURSNG IMMIGRANTS, EXCEPT IN EXTREME CIRCUMSTANCES

By Miriam Raftery

July 10, 2021 (San Diego) – A Trump-era executive order that required detention of pregnant undocumented immigrants has been blamed for putting lives of women and babies at risk, with many women suffering miscarriages in detention centers. On July 1, Tae Johnson, acting director of U.S Immigration and Customs Enforcement (ICE) issued a statement reversing that policy in nearly all situations.

The rule goes farther than the Obama administration policy that limited detention of pregnant migrants.  The Biden administration directive also bans most detentions of nursing mothers and mothers with infants under one year of age, to allow bonding with newborns. Now, most women awaiting outcomes of immigration or asylum cases will be released.

An exception is provided, however, for anyone required under U.S. laws to be detained, such as foreign nationals convicted of terrorist acts or certain other serious crimes. In such cases, a pregnant or nursing woman detained would be required to receive adequate medical care.  The new directive also prohibits restrains in most cases, including banning the shackling of pregnant women while in labor, an action that has drawn international outcry.

“This reflects our commitment to treat all individuals with respect and dignity while still enforcing our nation’s laws,” Johnson said in a statement, Associated Press reports.

“This policy change will have a direct impact on saving lives,” says Joy Bertrand, an Arizona lawyer who filed a lawsuit on behalf of a pregnant immigrant who suffered a miscarriage in 2018 while in the Otay Mesa detention facility in San Diego County run by CoreCivic, a private contractor.

The woman, Rubia Mabel Morales-Alfaro, an asylum seeker from El Salvador, learned she was expecting after leaving her homeland, Arizona Republic reports. She was apprehended by Border Patrol and first placed in a Customs and Border Protection facility, where she reported being kicked in the stomach and back by a female Border Patrol  officer, despite informing the agent that she was pregnant.

“I kept telling her I was pregnant, and she kept replying, ‘That is your problem, not mine,’” said Morales Alfaro, 28.

She was then transferred to the Otay Mesa facility. The lawsuit contends that she was kept there in cold temperatures that made sleep impossible, denied adequate food and medical care before miscarrying there. Amanda Gilchrist of CoreCivic has denied the allegations.

The lawsuit was dismissed in January 2020 by U.S. District Court  Judge Larry Alan Burns, who cited sovereign  immunity, however in his opinion Judge Burns suggested that the plaintiff may have grounds to refile a complaint against CoreCivic.

“The accounts we received of the treatment of pregnant women in custody were horrific,” Congressman Raul Grijalva of Arizona has said in a written statement, “and we must assure the changes with this directive are permanent and not easily undone by future administrations.”

Grijalva requested a Government Accountability Office study after another migrant delivered a stillborn baby at a Texas immigration center.  The report found that detention of pregnant migrants increased 80% after Trump ended the Obama-era policy against detaining pregnant migrants.  In fiscal year 2017 alone, at least 28 miscarriages occurred in ICE facilities, but that number is likely low, since ICE does not count miscarriages if a detained woman is hospitalized when the miscarriage occurs.

The GAO has found that 1,380 pregnant women were detained in 2016. That number shot up to 2,098 pregnant woman detained in 2018, even though the vast  majority had no criminal records.  Various reports by immigrant advocates have complained of a pattern of mistreatment in recent years including pregnant women denied access to bedding, clean water, food and medical treatment. 

Eunice Cho, a senior staff attorney with the American Civil Liberties Union (ACLU) National Prison Project, praised the Biden administration directive as a “welcome step in the right direction,” adding, “This move brings us closer to more humane treatment by ICE of people who are pregnant, postpartum or nursing.”

Cho hopes to see the policy expanded further, to allow release of other detainees who are medically vulnerable,” Courthouse News reports.

Of the more than 27,000 immigrants in custody currently, nearly 80% have no criminal record, and most of the rest have committed only minor offenses, according to research by the Transactional Research Access Clearinghouse at Syracuse University, the San Diego Union-Tribune reports.

In addition to the ICE announcement, the U.S. Department of Homeland Security has provisions in its fiscal year 2022 budget that also restricts detention of pregnant women.  Some elected officials including Grijalva believe Congress should enact legislation to protect pregnant immigrants and new mothers, to prevent future administrations from undoing these protections via executive orders with the stroke of a pen.