Mistreatment of Pregnant Women in US Immigration Detention

In this post, I share the main findings of my research on the mistreatment of pregnant women in US immigration detention. I presented these results at the Biennial Conference of the Radical Philosophy Association (RPA) on November 11, 2021. My research is divided into three parts. The first one answers what types of mistreatment pregnant women suffer in US immigration detention centers. The second part responds to how such mistreatment occurs, and the third part clarifies why it happens.

What?

In my answer to the first question, I discuss how the detention of pregnant women has increased since the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). This Act included two legal provisions that significantly increased the number of immigrants detained in the United States, giving a strong impetus to the immigration detention complex. Specifically, INA 236(a) permits US immigration authorities to detain migrants at their discretion, and INA 236(c) makes detaining a wide range of immigrants mandatory. In terms of numbers, we can see how from the fiscal year 1996 to 1998, the number of detained immigrants increased by 52.6 percent (from 108,662 detainees in 1996 to 165,828 in 1998). From 1996 through 2020, the former US Immigration and Naturalization Service (INS) and subsequently US Immigration and Customs Enforcement (ICE) detainee population increased at an average rate of eight percent per year, reaching a maximum of 510,854 detainees in 2019 (GDP 2021). Then, during the height of the COVID-19 pandemic (when the spread of the virus accelerated through the detention system), this number dropped dramatically, to 182,869 in 2020 due to the Trump and Biden administrations’ focus on removal rather than detention. In 2021, we note steady growth in detentions (NIJC 2021).

As for female detainees, although their number has remained lower than that of male detainees in absolute numbers, the growth rate of female detainees has been higher than that of male detainees. E.g., in 1998, women accounted for approximately seven percent of the population detained by INS, with an estimated 11,600 detainees that year (Young 1999, 580). In 2008, their number increased to 10 percent, with approximately 29,340 detainees (Law 2012, 146). In late April 2016, women constituted 14.6 percent of the total detainee population (ACLU et al. 2017, 2). In December 2018, 7,686 women were detained, amounting to 16 percent of the total population for that month (Ellmann 2019, 4).

Pregnant women have also been detained at higher rates as the detention of women has risen. For instance, in 2008, pregnant women accounted for 2.5 percent of the female population and 0.3 percent of the total population detained by ICE, with 965 detainees in that year (Hartry 2012a, 97). In 2016, pregnant women were roughly 2.7 percent of the female detainees and 0.4 percent of the total population, with 1,377 detainees. In 2018, pregnant women were approximately 3.4 percent of women in detention and 0.5 percent of the total population, with 2,094 detainees (GAO 2020a, 5). Based on these figures, we should expect the growth in detention rates for women, particularly pregnant women, to continue as immigration detention grows.

Once I approximate the numbers of pregnant women in detention, my research clarifies what happens to them in detention. Their situation is framed by a context familiar to migrants detained in the United States. This refers to the low quality of medical services offered to detainees (Cerón-Becerra 2021). Reporting and investigation of this issue has increased since the 1996 immigration Act. For example, in 2009, the Congressional Research Service (CRS) reported that the standard of health services in immigration detention is to keep detained persons in sufficient conditions to deport them, thus mainly attending to cases categorized as emergencies (Siskin 2009, 10-11). This approach is problematic, as it neglects various non-emergency medical conditions, causing damage to immigrants’ health in the short, medium, and long term. In the case of pregnant women and other populations with certain risk factors, this situation can have fatal consequences (Schriro 2021).

The case of Juana Villegas summarizes many of the types of mistreatment that pregnant women suffer in detention.

Juana Villegas, a woman from Mexico living in Tennessee, was nine months pregnant when she was pulled over by county police officers while driving with her three children in July of 2008. Suspected of being in the US without proper immigration documents, she was separated from her children and put into county jail in Nashville. After two days in jail, she was moved to a women’s correctional center. Her water broke on her third day of imprisonment, she went into labor, and she was shackled while being transported to the hospital. Davidson County police officers remained in her hospital room during her labor. They continued to keep her in shackles, in spite of a physician’s order that she not be restrained, with the exception of one officer who removed the restraints during the childbirth itself. She was shackled again after birth, and was in leg restraints even while walking and using the bathroom. Policemen unplugged the phone in her hospital room and did not allow her to call her husband; thus, her family did not know where she was for three days. After giving birth, she was returned to the correctional facility; but her infant had been taken from her, and she did not know where he was. The policemen refused to let her take the breast pump that the hospital had tried to give her, which left her with no way to express her breast milk and caused her to contract a painful, debilitating mastitis infection. The fact that she was unable to adequately move during labor and after delivery left her with pain, cramping, and an inability to fully move her left leg, weeks later. Ms. Villegas described her overall experience as traumatic and terrifying, and a psychiatrist confirmed that shackling her during transport and labor had caused terror, immense stress, and a feeling of helplessness consistent with Post-Traumatic Stress Disorder. Davidson County officials claimed that this treatment was legal, pursuant to the 287(g) program, which authorizes state and municipal officials to enforce federal immigration law in a limited capacity. (Hammell 246-7, footnotes omitted).

Villegas’ case reflects various forms of mistreatment, such as using restraints during transport to the hospital, before and after delivery, denying breast pump use, separating women from their families and support networks during their detention and after delivery, and separating them from their newborn babies, with adverse physical and mental consequences. Similar forms of mistreatment have been denounced in various detention centers by human rights organizations and research institutions (see Rabin 2009; HRW 2009).

Recent cases also reflect how denying and delaying health care have resulted in miscarriages (Ellmann 2019, 12). The routine use of force and restraints, and the lack of adequate food and accommodation when pregnant women are transferred between detention facilities have also been denounced (Varga 2021, 648-651). In 2017, the American Civil Liberties Union (ACLU) et al. analyzed ten individual complaints taken from several cases of mistreatment of pregnant women in different ICE detention centers (ACLU et al. 2017). In 2020, ACLU examined four accounts of mistreatment of pregnant women in US Customs and Border Protection (CBP) detention (ACLU 2020). In 2021, the Refugee and Immigrant Center for Education and Legal Services (RAICES) et al. reported seven cases of mistreatment at Karnes County Family Residential Center (RAICES et al. 2021). These incidents continue to reverberate the types of mistreatment that Juana Villegas suffered.

Additionally, the mistreatment of pregnant women has adverse effects on women’s access to justice mechanisms. For example, when faced with inadequate health services, pregnant women are pushed to abandon their asylum applications (WRC 2017, 33). This can be considered by and of itself a form of violence that discourages recourse to justice mechanisms. In the case of women who do not withdraw their asylum claims, detention creates adverse conditions throughout the asylum process, negatively affecting women and the outcomes of their legal proceedings (Varga 2021, 651).

It is important to note that not all pregnant detainees report having been mistreated, and those who are, are mistreated in different ways. In any event, “the conditions in [US Department of Homeland Security] DHS detention, at best, place an incredible amount of stress on a woman during pregnancy, if not directly endanger the health and safety of [the woman and] the fetus” (Varga 2021, 651). It is also crucial to note that there are no laws or government policies aimed at directly harming pregnant immigrants. Instead, the harm comes from the deliberate omission of the application of norms intended for the care and protection of pregnant women. This is the argument of the following section.

How?

Mistreatment in immigration detention occurs without the need for policies explicitly aimed at violating the bodies of detainees. In my research, I have found six strategies by which the US immigration detention system favors the mistreatment of immigrants. I examine how these strategies operate to the detriment of the health of pregnant women by closely analyzing the 2020 US Government Accountability Office (GAO) report “Immigration Detention: Care of Pregnant Women in DHS Facilities” (GAO 2020a).

• Immigration detention is managed under irregularly applied health care standards.

Currently, five detention standards contractually bind most ICE detention centers: the 2000 National Detention Standards (NDS), the 2019 NDS, the 2020 Family Residential Standards (FRS), the 2008 Performance-Based National Detention Standards (PBNDS), and the 2011 PBNDS. GAO details the types of standards of care to which pregnant women were subject from 2016 to 2018 and specifies the pregnancy-related issues that those standards address (see Table 5 and notes, in GAO 2020a, 25-26; note that this table still considers the 2007 FRS, as this was the applicable standard at the time of GAO’s study. Currently, the 2020 FRS supersedes it).

These standards differ greatly in the type of care provided to pregnant detainees, with the most recent ones more comprehensively addressing issues related to the care of pregnant detainees. The exception to this point is the 2019 NDS (see Cho 2019). Pregnant women may also be detained at facilities that are not governed by these standards. Thus, given that “some ICE facilities are not required to adhere to a set of detention standards—but may be inspected against one—or ICE did not specify the detention standard in its facility list report,” ICE did not report under what standard 16.8% of the women detained from 2016 to 2018 were held. See, in this regard, how the sum of the percentages of detained women in Table 5 does not add up to 100%. Furthermore, Bowen illustrates how only 65% of detention facilities operate under the above standards (Bowen 2020, 300, citing Tidwell Cullen 2018).

The disparity in the standards governing detention centers, the information gaps, and the absence of enforcement and accountability mechanisms that will be discussed below make it difficult to ensure compliance with and monitoring the standards of care (Bowen 2020, 299-302).

• Health care standards do not necessarily translate into detention center policies and regulations.

In its analysis of ICE information, GAO found a lack of policies related to the use of force and restraints in detention facilities that had standards on these issues (see Table 12, in GAO 2020a, 81-82). This is an example of how standards of care do not necessarily translate into policy. Correcting this problem is the prerogative of the detention centers in question. Without incentives and government pressure for detention centers to correct this problem, we expect that standards of care in immigration detention will be no more than suggestions that the centers may or may not enforce.

• Accountability mechanisms operated by private companies contracted by ICE are routinely deficient; their use simulates compliance with health standards and generates profits for private operators.

GAO’s report presents the results of one ICE inspection. It was selected out of five inspections, three of which were discarded because “they did not address pregnancy-related care or were not compiled into an electronic format” (GAO 2020a, 48). The selected inspection was conducted in 129 detention facilities governed by the 2011 PBNDS from December 2016 to March 2019. The 2011 PBNDS is purportedly the most comprehensive standard. It addresses fifteen out of sixteen pregnancy-related care topics systematized by GAO (see Table 5). Problematically, ICE’s inspection only evaluated six of them (see Table 10 in GAO 2020a, 48). Neither ICE nor GAO state why the other topics were not evaluated in the report.

Additionally, ICE presents high compliance with the six assessed topics in its inspection. However, there is no way to corroborate this information or identify the status of the nine topics that were not considered. Moreover, recent reports by the Office of Inspector General (OIG) and GAO confirmed that the DHS’s inspections are routinely performed deficiently (OIG 2018; GAO 2020b; see also Bowen 2020, 303-304). These problems are systemic because “the auditors, [which are private companies contracted by ICE,] have a stake in the outcome” (Wright 2017, 332).

•  CBP detention lacks the data gathering and reporting mechanisms to foster compliance with detention standards.

According to GAO, since CBP generally relies on offsite care for pregnant women, it “has limited information on care CBP provided” (GAO 2020a, 1). Moreover, CBP does not have reporting mechanisms for miscarriages and births, nor does it gather information about the number of times CBP officials take pregnant women to the hospital for a visit or admission. CBP officers collect the data at their discretion, making it unreliable for monitoring purposes (GAO 2020a, 36). Worryingly, and taking together CBP’s and ICE’s oversight and data gathering issues, GAO concluded that there was not “enough information for the investigating agency to determine whether proper care [to pregnant women] had been provided” (GAO 2020a, 1, 40).

• Government accountability mechanisms have no practical impact on the operation of detention centers.

Spiegel, Kass, and Rubenstein examine how DHS’s oversight is broadly ineffective. Their article discusses the most significant DHS oversight agencies, OIG and the Office for Civil Rights and Civil Liberties (CRCL), working independently of ICE and CBP. At first blush, it would seem that this oversight would be more reliable. OIG has even shed light on systemic problems in ICE and CBP detention. However, Spiegel, Kass, and Rubenstein find that, insofar as OIG’s reports “are not completed in real time,” they are unable to efficiently improve detainees’ treatment (Spiegel, Kass, and Rubenstein 2019, 1446). Additionally, the case of CRCL is problematic because its reports “are not made public” (Spiegel, Kass, and Rubenstein 2019, 1446). CRCL reports’ secrecy precludes an effective and rapid response regarding the mistreatment of pregnant detainees.

• When it exists, government protection provided to pregnant detainees offers them temporary relief and can be circumvented by immigration authorities.

Despite policies indicating that parole would generally be justified for pregnant detainees (see ICE Policy No. 11032.2; DHS 2009, 1279; 8 CFR 212.5(b)(2)), ICE has routinely denied them such parole on several occasions (ACLU et al. 2017, 9-10; LIRS and WRC 2014, 2; Rabin 2009, 49). This means that pregnant women may be detained until the resolution of their cases, exposing them to the forms of mistreatment illustrated in this research’s first section.

Furthermore, although ICE has ordered that pregnant women will not generally be detained on two occasions, ICE’s policies are temporary and allow for the discretion of immigration authorities. The first policy aiming at the presumption of release of pregnant women was created through ICE Policy No. 11032.2 in August 2016. However, due to the exception to that rule based on the language of “extraordinary circumstances,” the year following the institution of the 2016 policy saw only a 16.5% decrease in the detention of pregnant women, from 1,377 detainees in 2016 to 1,150 in 2017 (GAO 2020a, 5). In the face of a change in government administration, the August 2016 policy was dissolved through ICE Directive No. 11032.3 in December 2017, increasing the number of pregnant women in detention.

In February 2021, the US government restated the presumption of release of pregnant women and expanded the protections granted in the 2016 policy through ICE Directive No. 11032.4. This policy makes it more difficult for ICE officials to detain pregnant, postpartum, and nursing women. Identification and monitoring mechanisms are enhanced, and DHS agencies’ responsibilities are clarified. This policy will likely provide relief from detention to immigrant women and support human rights organizations against the detention of pregnant women by ICE. Problematically, this provision depends on the US political climate. Thus, it may be eliminated under a future administration (Sullivan 2021) or circumvented by immigration officials.

The above policy does not apply to CBP, which can broadly detain, expel, and deport pregnant immigrants at their discretion. Thus, in line with the Biden administration’s strategy to expel immigrants under Title 42 (HRF 2021), DHS officials will probably prefer to detain, expel, and deport pregnant women through CBP rather than ICE. This seems to be the case, considering CBP’s 2021 internal policy statement regarding “Pregnant, Postpartum, Nursing Individuals, and Infants in Custody” (CBP 2021). This statement seeks to improve the conditions for pregnant women in CBP detention, by fostering the identification of pregnant women’s medical needs, and improving some accommodations for this population (i.e., pregnant women will not be “required to stand for long periods of time,” will be “provided appropriate space to sit/rest/sleep,” and will have access to “snacks, water, milk, and juice”). Unfortunately the improvements in this statement do not eliminate the most adverse conditions endured by pregnant women in CBP detention, as the ACLU’s commentary elucidates (ACLU 2021). Ultimately, we should expect CBP to continue to detain, remove, and deport pregnant women.

In a system that favors the mistreatment of vulnerable people, policies that explicitly aim to harm are not always necessary; the absence of protection is sufficient to achieve this objective. Thus, given the high level of vulnerability of pregnant immigrant women, violence against them tends to be carried out through the deliberate omission of adequate care and protection mechanisms. At a minimum, the mistreatment of pregnant women is a predictable outcome of immigration detention policies. At most, this situation is intended. Ultimately, the strategy of immigration containment and deterrence makes it preferable for the US government to expose immigrants to the risks and abuses of detention, removal, and deportation rather than to use alternatives. I analyze this argument in my investigation’s third section.

Why?

Questions guiding my research relate to why the mistreatment of pregnant women happens. In other words, why does the US government harm a population that enjoys international protections? Crucially, is the mistreatment of pregnant women collateral damage in the US rejection of certain undocumented migrants and asylum seekers, or is there a strategic interest in harming this population? There is no easy response to this last question. In some ways, both possibilities have a bearing on the treatment of pregnant detainees in the United States.

What is clear in my research is that there are two interrelated causes of the mistreatment of pregnant women in US immigration detention. The first one is based on the construction of irregular immigrants (i.e., individuals who have not previously been processed as eligible to cross the border into the United States) as a threat to the country’s economic, social, and cultural resources in the medium and long term. This understanding reflects an approach to irregular immigration that can be characterized as low-intensity warfare. Second, because of the gendered elements of the justificatory logics of war, irregular pregnant immigrants are thought to pose an imminent threat to the US economic, cultural, and social fabric. Let us look at the characteristics of each of these causes.

The first thing we must understand about US immigration policy, in the context of the struggle for US geoeconomic and geopolitical superiority, is that, for the United States, any non-US national is a possible threat. Under this assumption, people who cross the border irregularly are a particular threat to the country. It is not the same threat posed by terrorist or organized crime organizations, presenting an imminent material threat. Instead, irregular immigrants in the United States are interpreted as a possible affectation of the country’s economic, social, and cultural resources in the medium and long term. Therefore, the debates surrounding irregular migration in the United States reflect concerns regarding competition for jobs, impact on wages, public spending, crime rates, compatibility of cultural values with those of supposedly American culture, and the introduction of viruses and diseases. These debates are fueled by myths that have little basis in reality, as evidenced by various studies (Frazee 2018; Lederer 2016; SIA 2015; Simes and Waters 2014). These debates also clarify that the irregular immigrant is seen as a threat to US values and resources, consistent with the view of “asylum seekers as opportunists or security threats” (Ingram 2021, 30).

This is not the place to enter these discussions; suffice it to clarify that the appearance of irregular immigrants generates tension in the receiving countries that, like the United States, operate under the logic of war; a war against immigrants that we can interpret as “low-intensity” (Heyman 2012, 273). This interpretation explains why, since the 1990s, the United States has constructed an immigration policy explicitly aimed at deterring irregular immigration through mistreating immigrants on various fronts (HSDL 1994). This policy seeks to send the message that immigrants who show up at the border are not welcome; that the border is closed. The message would be: if you think you will find humanitarian protection in the United States, you are wrong; here, you will find more suffering than what you are fleeing from; therefore, “do not come” (Kathey 2021).

According to arbitrary assumptions of guilt and vulnerability, immigration deterrence is combined with protection strategies (García Hernández 2019, 130-161). These assumptions have historically been related to age, gender, criminal history, disabilities, among other factors. Thus, in some administrations, irregular immigrants who arrived in the United States as children, unaccompanied minors arriving at the border, victims of sex trafficking, pregnant women, asylum seekers from selected countries, among others, have been provided with protection in the United States. Significantly, these protections (e.g., Temporary Protected Status, Deferred Action for Childhood Arrivals, presumption of release policies, conditional parole, among others) tend to be temporary and thus subject to change according to the political milieu and the immigrant’s behavior.

Considering the tension generated by the construction of the immigrant as a threat, the role of immigrant women acquires a crucial significance. Because of the domestic and reproductive work with which women are associated in patriarchal societies, they are identified as “social, biological, and cultural reproducers of [the] nation[s]” to which they belong (Sjoberg and Peet 2011, 176). Because of this role, violence against immigrant women can become an essential strategy for the containment and deterrence of irregular immigration. If the interpretation of the level of threat that immigrants represent for the receiving country is high, the justification for violence against women increases.

Mistreatment in detention and removal proceedings, family separation policies, and legal and bureaucratic barriers for accessing justice mechanisms and health care services are the primary forms of violence against irregular immigrant women in the United States (see Levi Mora 2021; Heckert 2020; Johnson-Farias 2020; CRR et al. 2020; Kassie 2018; Dingeman et al. 2017; Oliviero 2013; Hartry 2012b; Gomes and Ross-Sheriff 2011; HRW 2010). Some of these strategies had already been implemented in mostly impoverished and Black populations (Solinger 2005). Remarkably, the strategies used in the immigration detention system closely resemble those employed in the US prison system in the context of the war on drugs. These strategies adversely affect women’s reproductive capacities, thereby “incapacitating motherhood” in incarcerated and detained women (Smithart 2020; Ocen 2018; Ocen 2012). Thus, the racialized and classed meanings and values in which violence against women is circumscribed at the local level are transposed and transformed when applied to the context of immigration, constructing new racializations and classifications, this time aggravated by the factor of nationality in contexts of imperialism.

Pregnant immigrant women present a disturbing threat in scenarios framed by the interplay of these forms of violence. If immigrant women of reproductive age are perceived to represent a possible threat to the economic, cultural, and social fabric of the American people, pregnant women are thought to pose an imminent threat. In their wombs, a “time bomb” is being prepared for the American social body; its detonation on American soil would imply the intrusion of an external agent into the most intimate part of the social body: the instant citizenship of the foreigner about to be born (Hartry 2012a, 62, 81-83). And although it would take twenty-one years for such a foreigner to begin family reunification procedures, and although these procedures could take additional years to be processed (having passed the test of eligibility), the idea that a foreigner could demand rights on American soil is terrifying in a context in which immigration is understood from the logic of war (Morales 2009, 78-79). This logic ultimately justifies the mistreatment of pregnant women in US immigration detention centers.

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This research clarifies how governments face severe challenges in promoting a dignified treatment of immigrants based on military and warlike approaches to immigration law and policy, as protections based on this approach will always attempt to repress violence that tends to spiral out of control. In this scenario, Simone de Beauvoir’s words, “justice can never be created within injustice,” echo eloquently (Beauvoir 2011). Considering the severity and magnitude of the situations irregular immigrants are subjected to, countries need to strengthen the type and quality of care and protection offered to immigrants. This interim solution would help remedy some of the most severe consequences that pregnant women endure in US immigration detention. However, a long-term solution requires combating the warlike approach to migration and its concomitant militarization. Gender justice in the context of immigration urgently demands alternatives.

The author would like to thank Dr. Joy Gordon, PhD, for her guidance and support in this research.