Judges decry treatment of nursing and pregnant detainees in ICE custody

A Myanmar refugee, with a nursing five-month-old at home, whisked abruptly to Texas by Immigration and Customs Enforcement. A Massachusetts woman in her third trimester, held under ICE’s guard at a hospital after experiencing medical distress in ICE detention. An Indian national who is three months pregnant and whose weight dropped to 90 pounds while in an ICE facility.

Federal judges are sounding alarms about the Trump administration’s treatment of pregnant and nursing detainees in ICE custody — and the administration has given the courts conflicting, unclear answers about whether it is following its own policies that sharply restrict those detentions.

Against that uncertainty, courts are being confronted with harrowing stories about women being separated from their nursing infants or housed in cramped and ill-equipped ICE facilities while pregnant, in conditions that threaten their health and have, in some cases, been followed by miscarriages.

That crystallized over the weekend in Massachusetts, when Djeniffer Benvinda Semedo, a Cape Verdean national who is six months pregnant, was rushed to Beth Israel Deaconess Medical Center for emergency care. The woman claimed that ICE held her in a temporary holding facility for three days, exacerbating her medical distress. On Tuesday, ICE released Benvinda Semedo ahead of an emergency effort by her attorneys to ask a judge for her release, though she remains hospitalized.

Last month, U.S. District Judge Michael Davis, a Clinton appointee based in Minnesota, took the Trump administration to task for detaining and transferring to Texas a legally admitted refugee who was still breastfeeding her five-month-old at the time.

“There is something particularly craven about transferring a nursing refugee mother out-of-state,” Davis wrote, lamenting that the woman had “lost important bonding and nursing time with her baby” due to a detention he deemed illegal in the first place. He ordered her immediate release.

Around the same time, U.S. District Judge Richard Boulware, an Obama appointee in Nevada, ordered the immediate release of a woman who said her detention by ICE — despite a high risk pregnancy — had violated a 2021 policy that bars the detention of pregnant and nursing immigrants in most cases.

For months, ICE has declined to say whether that Biden-era policy, which allows for detention only in “exceptional circumstances” such as threats to national security, remains in force. A Justice Department attorney told a federal judge in August that the policy had been effectively revoked by President Donald Trump’s Day One executive order requiring the administration to maximize its deportation and detention operations.

But last month, another DOJ attorney said the policy was still in effect and binding on ICE. And last week in Wisconsin, a federal judge pressed the Trump administration to say why the nursing mother of a six-month-old had been detained. In response, DOJ said it consulted with the Department of Homeland Security and that DHS was “unable to identify” any reason to keep her detained.

POLITICO has asked repeatedly about the policy and not gotten clarity about whether it remains in force.

“Pregnancy in ICE detention is exceedingly rare — making up 0.133% of all illegal aliens in custody," DHS spokesperson Tricia McLaughlin said in a statement. "Pregnant women receive regular prenatal visits, mental health services, nutritional support, and accommodations aligned with community standards of care. This includes medical, dental, and mental health intake screening within 12 hours of arriving at each detention facility, a full health assessment within 14 days of entering ICE custody or arrival at a facility, and access to necessary medical appointments and 24-hour emergency care."

“Being in detention is a choice," she added. "We encourage all illegal aliens to take control of their departure with the CBP Home App."

But judges say many of these women should not have been detained in the first place — and when they are, it’s not clear ICE is following its guidance regarding their care.

Confusion about the status of ICE’s policy toward pregnant and nursing women began in August, when a Justice Department attorney in Minnesota told U.S. District Judge Susan Nelson that the policy had been rescinded. (That DOJ lawyer, Ana Voss, was among a recent wave of resignations from the U.S. Attorney’s Office in Minnesota in response to the mass deportation surge in the Twin Cities.)

Nelson expressed skepticism about Voss’ position, noting that Trump’s executive order “contains no references to nursing mothers, let alone nursing mothers who lack any criminal history whatsoever.”

“The Court finds that the harm of separating a nursing mother and child is self-evident,” Nelson wrote in ordering the woman’s release from ICE custody.

A week later, U.S. District Judge Kenneth Hoyt, a Texas-based Reagan appointee, ordered the immediate release of a woman with a nursing four-month-old, no criminal history and a U.S. citizen husband who was working to attain lawful immigration status.

“Petitioner’s continued detention irreparably deprives her of her liberty, exposes her to adverse medical consequences, and prevents her from caring for her infant child,” Hoyt wrote. “The petitioner demonstrates that both she and her infant child are suffering irreparable harm.”

The following month, U.S. District Judge Jennifer Thurston, a Biden appointee in California, said a 32-year-old Nicaraguan detainee who was both nursing and newly pregnantappeared to have been deprived of proper equipment and care.

“As a result of her sudden withdrawal from her baby and the inability to feed, she suffered the painful condition of having her milk ducts clog. There is no indication she was provided a breast pump or other assistance to maintain her milk supply,” Thurston wrote.

Her decision came around the same time U.S. District Judge Casey Pitts, another Biden appointee based in California,barred ICE from detaining the nursing mother of an infant. He noted that ICE had previously attempted to arrest her but held off because her baby was with her at the time.

In December, U.S. District Judge Troy Nunley, an Obama appointee in California, granted the release of an Indian national who said her weight had dropped to 90 pounds amid “dire conditions” of her detention by ICE. The judge said the woman’s reported medical concerns had put her pregnancy at risk and appeared to violate ICE’s 2021 policy.

In some cases, judges have ruled against releasing pregnant detainees, saying conditions of confinement were not squarely within their purview to adjudicate. But even in those cases, the judges have raised concerns.

“While the Court makes no findings as to the accuracy of Petitioner’s allegations regarding medical care, the Court finds them concerning,” U.S. District Judge William Johnson, a New Mexico-based appointee of George W. Bush, wrote in a Jan. 26 ruling. “The Court hopes and expects that, if they are true, that the appropriate Respondents will act promptly to ensure that Petitioner is receiving necessary medical care to prevent irreparable harm to her and her future child.”

The same month, U.S. District Judge Maurice Hicks Jr., a George W. Bush appointee from Louisiana, said he was “not unsympathetic” to the “medical condition”of a woman who said she was pregnant with twins, but said he could not order emergency relief until the Trump administration had a chance to respond to her petition.