ICE Adds Nursing and Postpartum Aliens to Detention-Exempt List
FAIR Take | July 16, 2021
Adding to the growing list of the Biden administration’s non-enforcement policies, the U.S. Immigration and Customs Enforcement (ICE) announced this month that it will no longer detain pregnant, nursing and postpartum aliens who have recently crossed the border illegally or who are otherwise subject to deportation. This policy update is another expansion of lenient policies reminiscent of the Obama era. While the Obama administration generally exempted pregnant women from mandatory detention, the Biden administration has also added women who gave birth within the prior year and those who are nursing, which in some cases could last multiple years, to the list of people exempt from mandatory detention.
This policy change follows the Biden administration’s decision to ended family detention entirely earlier this year, sparking serious deterrence concerns. In recent years, the demographics of the majority of illegal border crossers have shifted from single adults to family units and unaccompanied alien minors from Central America. This is attributable to the Obama administration’s creation of the Deferred Action for Childhood Arrivals (DACA) program, an outdated settlement agreement limiting detention time for family units (known as the 1997 Flores Agreement), and a loophole in the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) prevents the government from promptly returning illegal aliens from Central America. The Biden administration’s decision to end family detention, however, has further encouraged aliens to attempt to illegally cross the southern border by messaging that bringing a child along will guarantee prompt release into the interior of the United States.
ICE’s announcement that it will no longer detain inadmissible aliens who have crossed the border illegally (or otherwise subject to deportation) and are pregnant, nursing and postpartum has reignited the debate on whether birthright citizenship is appropriate to maintain in the modern world. Birthright citizenship is uncommon globally. Currently, no countries in the Eastern Hemisphere allow for birthright citizenship.
Releasing pregnant women in the United States pending their immigration court date virtually guarantees that their children will be born in the United States and automatically granted the benefits of U.S. citizenship. Further, mothers of young U.S. citizens, historically, have never been prioritized for removal absent a significant criminal record or without posing national security concerns.