Nursing Mothers and Asylum Seekers — Both Groups Need Alternatives To Detention!

DATE: Wednesday, November 14, 2007

CONTACT: George Tzamaras
202-216-2410 or

WASHINGTON, DC - In a welcome guidance memorandum this week, ICE Assistant Secretary Julie Myers highlighted the importance of ICE agents exercising discretion when making arrest and custody decisions for undocumented immigrants who are nursing mothers. The guidance arose after a case was brought to ICE's attention in which a nursing mother was separated from her 6-month-old nursing baby and two young children, and imprisoned for more than 2 weeks before finally being released with an electronic monitoring device affixed to her ankle. The nursing mother was not even the object of ICE agents' action, but was accidentally discovered by them in a home they came to search in pursuit of another undocumented person.

The Myers memo also reinforces and references a previous agency guidance memo regarding prosecutorial discretion that states that "officers are not only authorized by law but expected to exercise discretion in a judicious manner at all stages of the enforcement process-to promote the efficient and effective enforcement of the immigration laws and the interests of justice." (DOJ/INS Memorandum, November 17, 2000.)

We applaud ICE and Ms. Myers for attempting to restore a modicum of reason and discretion to a system that seems bent on "enforcement at all costs" without the accompanying changes in the law that are necessary to make enforcement effective.

At the same time, we must question and object to another new policy memo, released Monday, that turns away from the sort of professional and reasonable approach contained in Ms. Myers November 7th memo.

The Monday memorandum turns away from the existing policy that favors release from detention for arriving asylum seekers who are determined to have a "credible fear" of persecution, who have established their identity and community ties, and who are deemed not to be a flight risk. The current policy makes eminent sense, applied as it is to individuals who are among the most traumatized of arriving immigrants-those fleeing persecution which often includes arrest, imprisonment and even torture-who are seeking safety and the preservation of their very lives by appealing to our government for protection.

The new policy will require these traumatized individuals to jump through yet a new set of hoops, and to fit into one of five very narrowly defined groups, in order to be released from detention. The new policy will severely limit the exercise of discretion and will prevent most credible asylum applicants from being released from detention while their claims are being considered. This turns the standard that should be applied upside down, is punitive, and serves no rational interest.

We urge ICE to reexamine its two recent memos, and to apply the thoughtfulness embodied in the policy guidance regarding nursing mothers to another deserving group-those seeking asylum in the United States.

The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.

For more information call George Tzamaras at 202-216-2410 or Annie Wilson at 202-216-2435

Cite as AILA Doc. No. 07111462.