A federal judge in Anchorage ruled on Friday that the U.S. Immigration and Customs Enforcement (ICE) policy discouraging the detention of pregnant women is not legally binding, denying the petition of a woman ICE held for three days in March after its agents learned she was pregnant.
Source: Anchorage Daily News
U.S. District Judge Aaron Christian Peterson found that the wording of the 2021 policy shows ICE did not intend to create a binding procedure for detaining pregnant women. The policy says ICE generally "should not" detain people known to be pregnant, postpartum or nursing unless the law bars their release or exceptional circumstances exist.
Three days in custody in March
The case began on March 20, when ICE detained Valeria Mendoza Santiago, a Mexican national according to her court filings, and took her to the agency's Anchorage office. Agents learned while processing her that she was pregnant, according to the judge's order.
As ICE prepared to move her out of Alaska, a supervisory officer asked Hiland Mountain Correctional Center, the state women's prison in Eagle River, whether it could provide pregnant detainees with appropriate accommodations and medical care. He asked the same question of the Northwest ICE Processing Center in Tacoma, Washington, the large detention facility ICE was preparing to send her to.
Before any transfer happened, Mendoza Santiago challenged her detention in federal court in Anchorage. At 2:40 a.m. the next day, U.S. District Judge Timothy Burgess temporarily barred ICE from taking her out of Alaska. She was released on March 23 and placed on supervised release, where she appears to remain.
Why the judge said the policy does not bind ICE
Her petition argued that ICE "disregarded the agency's own binding custody-review framework for pregnant detainees," pointing to language in the policy stating that agents "must immediately notify" a supervisor when they learn a detainee is pregnant, and that only a field office director or a designated assistant field office director may approve such a detention. Under a 1954 Supreme Court decision, federal agencies must follow their own binding rules.
Judge Peterson was not persuaded. "Inclusion of the words 'generally' and 'should' instead of something more mandatory, like 'shall,' indicate that ICE did not intend to curtail its ability to detain pregnant women when necessary and appropriate," he wrote. He pointed to the policy's last section, which calls it "internal ICE policy guidance" and says it creates no right "enforceable at law by any party," and wrote that the mandatory-sounding lines "cannot be air-lifted from the Directive and read in isolation." His order does not decide whether ICE actually followed the policy in her case.
Other judges have ruled the opposite way this year
The Anchorage ruling deepens a split among federal courts. Judges in Wisconsin and Louisiana applied the same 1954 Supreme Court decision to the same ICE policy this year; in both cases the government did not show that the detention fell under the policy's exceptions, and the judges ordered the release of women who were nursing or had recently given birth. In Alaska, by contrast, the petition was denied in full.
The government had argued that the policy is internal guidance that confers no substantive rights. Laura Hermosillo, acting director of ICE's Seattle field office, asserted in a court filing that she understood federal law to require Mendoza Santiago's detention at the time she was detained. Peterson found that, under a Ninth Circuit ruling issued after the case was briefed, the law allowed her detention but did not require it.
The judge also rejected the government's argument that the case was moot because she had already been released, finding that the government could detain her again. But he ruled she could not challenge her detention under the Administrative Procedure Act because a habeas petition gave her an adequate remedy, and he rejected her due process claims: an agency's failure to follow its internal procedures is not by itself a due process violation, he wrote, and because the policy was not binding and she did not dispute being in the country illegally, her brief detention could not be called arbitrary or "conscience-shocking." He added that she "failed to even discuss or cite the standards that apply to her claims."
In the District of Alaska, the 2021 ICE directive now stands as guidance, not as an enforceable right a pregnant detainee can take to court. For immigrant families — including Punjabi and other South Asian families in Alaska and across the United States — whether a pregnant, postpartum or nursing woman is detained will rest on ICE's own case-by-case decisions, while courts in other parts of the country have reached the opposite conclusion on the same policy.
What happens next
Mendoza Santiago appears to remain on supervised release, the order says. An immigration court found her removable on August 26, and she told the court she intends to seek asylum. Her immigration case was continued, likely to spring 2027. With district courts now divided over whether the directive binds ICE, the question is one an appeals court may ultimately have to settle.