Judge rules ICE's policy discouraging detention of pregnant women isn't binding

A federal judge in Anchorage ruled Friday that Immigration and Customs Enforcement's policy discouraging the detention of pregnant women is not binding, denying the petition of a woman ICE held for three days in March after agents learned she was pregnant.

The 2021 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.

Under a 1954 Supreme Court decision, federal agencies must follow their own binding rules. U.S. District Judge Aaron Christian Peterson found that the policy's wording shows ICE did not intend to create a binding procedure for detaining pregnant women.

"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," Peterson wrote in his order.

He also 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."

Judges in Wisconsin and Louisiana applied the same 1954 decision to the 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.

The Alaska case began March 20, when ICE detained Valeria Mendoza Santiago, a Mexican national according to her court filings, and took her to its Anchorage office. Agents learned while processing her that she was pregnant, according to the order.

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. As ICE prepared to send her to the Northwest ICE Processing Center in Tacoma, he asked the center the same question.

Before any transfer, Mendoza Santiago challenged her detention in federal court in Anchorage. At 2:40 am the next day, U.S. District Judge Timothy Burgess temporarily barred ICE from taking her out of Alaska. She was released March 23 and placed on supervised release.

Her petition argued that ICE "disregarded the agency's own binding custody-review framework for pregnant detainees." She pointed to what she called the policy's "mandatory procedural language." Agents "must immediately notify" a supervisor when they learn a detainee is pregnant, it says, and only a field office director or a designated assistant field office director may approve such a detention.

Peterson wrote that those lines "cannot be air-lifted from the Directive and read in isolation." His order does not decide whether ICE followed the policy in her case.

The government 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 when 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.

Peterson also rejected the government's argument that her case was moot because she had been released, finding 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.

He also 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."

Mendoza Santiago appears to remain on supervised release, the order says. An immigration court found her removable Aug. 26, and she told the court she intends to seek asylum. Her case was continued, likely to spring 2027.