Harsh immigration and detention policies were issued under the administration of former President Trump, including the arrests and detention of women who were pregnant, nursing, or in the postpartum period following birth. Trump’s policies of deporting as many people as possible, including those who had not been convicted of any criminal offenses in the U.S., resulted in a sharp uptick of pregnant, nursing, and postpartum women being arrested and placed in detention.

Fortunately, now that President Joseph R. Biden, Jr. is in office, his administration has decided to take a more humane approach to immigration. Biden recently issued a new policy to lessen the restrictions on undocumented immigrants who are nursing, pregnant, or in the postpartum period after giving birth. A New York detention immigration lawyer at Pozo Goldstein can help detained immigrants to try to secure releases on bond and defend against their deportations or removals.

New Immigration Policy for Detention

The Biden administration’s new immigration policy restricts officers from Immigration and Customs Enforcement from arresting or detaining people who are nursing, pregnant, or who have had babies within the past year. This includes a restriction on arresting and detaining transgender men who have given birth, are nursing, or are in the postpartum period.

This policy is a return to the 2016 policy under former President Barack Obama. Under his administration, ICE could only arrest or detain pregnant, nursing, or postpartum women under extraordinary circumstances.

During the Trump years, ICE arrested more than 4,000 pregnant immigrants. The number of people held in custody has recently decreased in an effort to reduce the risk of COVID-19.

While Biden’s new policy is a welcome turn from the inhumane policies of the former administration, it is only an executive order instead of being codified in law. This means that this new protection for postpartum, nursing, or pregnant immigrants could go away under a future president if Biden is not re-elected.

The arrest and detention of pregnant undocumented immigrants are hot-button issues among certain conservatives. Some want to get rid of birthright citizenship, which is enshrined in the U.S. Constitution, to try to keep pregnant migrants from entering the U.S. to give birth.

Many pregnant immigrants in detention do not receive appropriate medical care during their pregnancies. Recently, several advocacy groups filed lawsuits against Customs and Border Protection to secure records about how pregnant migrants have been treated while in detention since 2020. The lawsuits have followed reports of migrant women being deported with their infants who had been born in the U.S., including women who came to the U.S. to request asylum and then were sent back after giving birth without receiving birth certificates showing their babies are U.S. citizens.

State policies regarding the detention of pregnant women vary from state to state. In most states, officers are forbidden from shackling pregnant women while they are in labor. However, a fewer number of states ban the use of restraints throughout a woman’s pregnancy. Advocates hoped that Biden’s policy would ban ICE officers from detaining undocumented migrants and those with infants for any reason. However, under the new policy, a pregnant migrant might be detained in an extraordinary situation, such as when a pregnant undocumented immigrant commits a violent criminal offense.

Under former President Obama’s policy, pregnant women who were detained for violations of immigration law could be released while waiting for their cases to be resolved. However, it did not include protections for undocumented immigrants who were nursing infants.

After Trump entered office, he ended Obama’s immigration policy for the detention of pregnant women, leading advocates to focus on the health and safety of pregnant immigrants in detention and whether or not they received proper prenatal care.

In 2018, a 24-year-old woman from Honduras who was held by ICE gave birth to a stillborn infant. Border Patrol agents had arrested her one week before in Texas, and she informed them that she was six months pregnant. She was initially taken to the hospital after her apprehension before being discharged into the custody of ICE. Once she was placed in detention, she complained about pain in her abdomen. While a clinical director at the facility said she needed to be taken back to the hospital, she went into labor before being transported.

President Biden has reversed several of Trump’s harsh immigration policies by issuing new executive orders. Some of the changes include accepting more asylum requests, easing visa and travel restrictions, and changing which types of undocumented immigrants that immigration authorities should prioritize for enforcement. To make these types of changes permanent, however, immigration reform in Congress would be necessary.

Pregnant Migrants and Applying for Asylum

Pregnant migrants can apply for refugee status when they arrive in the U.S. by filing an application for asylum and for withholding of removal upon reaching the port of entry. To be eligible for asylum, pregnant migrants must prove that they are refugees by showing that they have real, credible fears of persecution based on their race, religion, nationality, political affiliation, or membership in a social group if they were forced to return to their home countries. Persecution is defined to include serious threats to a person’s life or freedom or the infliction of severe harm or suffering. Examples might include torture, death threats, continual surveillance, discrimination, and other similar things.

Under President Biden’s new policy, after a pregnant migrant has submitted an application for asylum, an interview will be conducted. If the Customs and Border officer believes that the applicant has a credible fear based on one of the above-listed statuses, the migrant should be released into the U.S. pending resolution of the case without being held in detention by ICE. Pregnant migrants who are already in the U.S. can also apply for asylum within one year of when they first entered the country with the help of an experienced New York immigration lawyer at Pozo Goldstein.

Get Help from a New York Detention Immigration Lawyer

If your loved one has been arrested by ICE and is currently in detention, you should talk to an experienced New York immigration lawyer at Pozo Goldstein. Our experienced New York immigration team includes two former immigration prosecutors and a former immigration judge. Call us today for a consultation at (212) 201-9031.