HR4664-119

1. Short title This Act may be cited as the Stop Shackling and Detaining Pregnant Women Act.

2. Definitions In this Act: The term appropriate committees of Congress means— the Committee on Homeland Security and Governmental Affairs of the Senate; the Committee on the Judiciary of the Senate; the Committee on Appropriations of the Senate; the Committee on Homeland Security of the House of Representatives; the Committee on the Judiciary of the House of Representatives; and the Committee on Appropriations of the House of Representatives. The term Commissioner means the Commissioner for U.S. Customs and Border Protection. The term detained noncitizen includes any adult or juvenile individual detained by any Federal, State, or local law enforcement agency (including under contract or agreement with such agency) under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.). The term detention officer means an individual who— works at a facility, including an individual who works at a facility pursuant to a contract or subcontract; and performs duties relating to the security, custody, or transport of individuals in custody. The term Director means the Director for U.S. Immigration and Customs Enforcement. The term facility means a Federal, State, or local government facility, or a privately owned and operated facility, that is used, in whole or in part, to hold individuals under the authority of the Secretary of Homeland Security, including a facility that— holds such individuals under a contract or agreement with the Director or the Commissioner; or is used, in whole or in part, to hold individuals pursuant to an immigration detainer or similar request. The term facility administrator means the official responsible for oversight of a facility, or the designee of such official. The term postpartum means during the 1-year period, or longer, as determined by the licensed health care provider of the individual concerned, following delivery, including the entire period during which the individual is in a medical facility, birthing center, or infirmary after birth. The term restraint— means any physical restraint or mechanical device used to control the movement of the body or limbs of a detained noncitizen’s body for custody purposes, including— flex cuffs; soft restraints; hard metal handcuffs; a black box; Chubb cuffs; leg irons; belly chains; a security (tether) chain; a convex shield; and any other type of shackles; and does not include medical restraints. The term Secretary means the Secretary of Homeland Security.

3. Limitation on detention of pregnant women and mothers of newborns The Secretary shall provide every individual being processed into custody access to pregnancy testing during the initial medical screening. Except as provided in paragraph (2), the Secretary— may not detain, arrest, or take into custody an individual under any provision of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) who is known to be pregnant, lactating, or postpartum, pending a decision with respect to whether the noncitizen is to be removed from the United States; and shall immediately release any detained noncitizen found to be pregnant. The Secretary, pursuant to chapter 4 of title II of the Immigration and Nationality Act (8 U.S.C. 1221 et seq.), may detain an individual who is known to be pregnant, lactating, or postpartum— under extraordinary circumstances in which the Secretary makes an individualized determination that credible, reasonable grounds exist to believe that— such individual poses an immediate and serious risk of physical harm to others; and enrollment in an alternative to detention program cannot mitigate public safety threats associated with such individual; and if such detention is the only means available to mitigate such threats. If detention is the only means of effectuating the removal from the United States of a pregnant individual subject to a final order of deportation or removal, the Secretary, solely for the purpose of such deportation or removal, may detain the pregnant individual in temporary housing in accordance with applicable temporary housing standards for a period equal to the shorter of— the shortest possible period immediately preceding the deportation or removal of the individual from the United States; and 5 days. The Secretary shall conduct an individualized review of each noncitizen detained pursuant to subsection (b)(2) not less frequently than weekly to determine whether such noncitizen continues to be subject to detention under such subsection. Each such review shall be completed within 72 hours after being initiated. Not later than 24 hours after the Secretary determines pursuant to paragraph (1) that a pregnant noncitizen is no longer subject to detention under subsection (b)(2), the noncitizen shall be released from the facility in which the noncitizen had been detained in accordance with safe release standards. In carrying out such release, an officer at such facility shall— prepare the noncitizen’s complete medical records, medications, and any supplies required to maintain the noncitizen's state of health until the noncitizen can be seen by a community health professional; and communicate with the noncitizen's attorney of record, sponsor, or any post-release service provider as soon as details of the noncitizen's planned release are available.

4. Humane treatment of pregnant detained noncitizens while in detention and custody Except as provided in paragraph (2), restraints may not be used on a noncitizen who is in the physical custody of the Department of Homeland Security, including during transport, if the noncitizen is known to be— pregnant, including during labor and delivery; lactating; or postpartum. Notwithstanding paragraph (1), and subject to subparagraph (B), use of a restraint on a detained noncitizen described in paragraph (1) may be permitted only in an extraordinary circumstance, except in the case of a medical contraindication, in which the facility administrator has ordered the use of the restraint after making an individualized determination that— credible, reasonable grounds exist to believe the detained noncitizen poses an immediate and serious risk of physical harm to others; or reasonable grounds exist to believe the detained noncitizen presents an immediate and credible risk of escape that cannot be reasonably minimized through any other method. In the rare event of an extraordinary circumstance described in subparagraph (A), only the least restrictive restraint necessary shall be used, except that— if a doctor, nurse, or other health professional treating a detained noncitizen requests that a restraint not be used, the detention officer accompanying the detained noncitizen shall immediately remove any restraint; and under no circumstance shall— a leg, waist, or 4-point restraint be used; a wrist restraint be used to bind the hands of such a detained noncitizen behind the back of the detained noncitizen or to another individual; a detained noncitizen be restrained in a face-down position or on their back; or any restraint be used on any detained noncitizen who is in labor or delivering. If a restraint is used on a detained noncitizen pursuant to paragraph (2)(A), not later than 5 days after the date on which the restraint was used, the facility administrator shall— record in writing the finding that describes the medical purpose or extraordinary circumstance that dictated the use of the restraint; and submit the finding to the Director. With respect to a written finding under subparagraph (A)(i), the facility administrator shall— keep the finding on file at the applicable facility for not less than 5 years after the date on which the restraint was used; and make a copy of the finding available for public inspection on request, only after making appropriate redactions so as to protect personally identifiable information. The Director shall maintain a written finding submitted to the Director pursuant to subparagraph (A)(ii) and make such finding available for public inspection only after making appropriate redactions to protect personally identifiable information. Except as provided in paragraph (2), nonmedical staff may not be present in a room in which a pelvic or breast exam, labor, delivery (whether vaginal or by cesarean delivery), or treatment of any other symptom relating to a pregnancy of a detained noncitizen is occurring unless their presence is specifically requested by medical personnel and only for a duration that is actually required to fulfill such request. If the presence of nonmedical staff is requested by medical personnel, the nonmedical staff shall— be of the detained noncitizen’s gender of choice, if practicable; and remain at a reasonable distance from the detained noncitizen and face toward the detained noncitizen’s head to protect the privacy of the detained noncitizen. If a restraint is used on a detained noncitizen pursuant to subsection (a)(2)(A), an employee of the Department of Homeland Security shall remain immediately outside the room at all times so that the employee may promptly remove the restraint if requested by medical personnel pursuant to subsection (a)(2)(B)(i). A detained noncitizen in the custody of U.S. Immigration and Customs Enforcement shall have access to health care services, including comprehensive counseling and services relating to reproductive health care and pregnancy, including— routine and specialized prenatal care, including adequate nutrition and exercise, HIV testing and treatment, and prenatal vitamins and vaccines; labor and delivery; treatment for complications from pregnancy; substance use disorder treatment; postpartum physical and mental health care, including postpartum reversible contraceptive methods; no-cost supply of menstrual hygiene products; lactation services; and family planning, continuation of pre-detention contraceptive methods, and abortion services. The Commissioner shall ensure that minimum standards of care are met for pregnant detained noncitizens who are in the custody of U.S. Customs and Border Protection. Services described in subsection (c)(1) may not be performed on a detained noncitizen until the provider of such services obtains informed consent from the noncitizen. Medical treatment may not be administered to a detained noncitizen against such noncitizen’s will. Each facility administrator shall maintain— an arrangement with the nearest maternity hospital and ensure facility staff know where to take pregnant detained noncitizens in case of emergency; and a policy to ensure the provision of proper care if a detained noncitizen cannot be moved with immediacy to a medical center.

5. Notice of rights and training The Secretary shall provide to each detained noncitizen, in a language or manner that such noncitizen can understand, notice of the detained noncitizen’s rights under this Act. At the time of hiring, and annually thereafter, the Secretary shall provide training regarding the requirements under this Act to each employee of the Department of Homeland Security who is involved in the detention or care of a pregnant detained noncitizen or a postpartum parent of a newborn who is being detained pursuant to chapter 4 of title II of the Immigration and Nationality Act (8 U.S.C. 1221 et seq.).

6. Reports; rulemaking Not later than 30 days after the end of each calendar quarter, the facility administrator of each detention facility in which 1 or more pregnant noncitizens were detained during such quarter shall submit a written report to the Secretary that includes, with respect to the facility during such quarter— an account of every instance of the use of a restraint on a pregnant detained noncitizen during pregnancy, labor, or postpartum recovery, including— the type of restraint; the justification for the use of such restraint; and the name of the facility administrator who made the individualized determination pursuant to section 4(a)(2)(A); the number of pregnant noncitizens held at such facility; the number of released pregnant noncitizens who were held at such facility; the average length of detention of pregnant noncitizens; the number of pregnant noncitizens who were detained for between 15 and 30 days; the number of pregnant noncitizens who were detained longer than 30 days; and the number of pregnant noncitizens who gave birth while detained and a description of the outcomes of any pregnancies that ended in custody, including any pregnancy that resulted in a live birth, a stillbirth, a miscarriage, an abortion, an ectopic pregnancy, maternal morbidity, maternal death, neonatal death, or preterm birth. Not later than 90 days after the last day of each fiscal year, the Secretary shall— complete an audit of the information described in subparagraphs (B) through (E) of paragraph (1) contained in reports covering such fiscal year; submit a report to the appropriate committees of Congress that includes a summary of the information submitted pursuant to paragraph (1), disaggregated by facility; and issue regulations in accordance with relevant national standards that set minimum standards for facilities providing medical care to pregnant noncitizens. None of the reports submitted pursuant to paragraph (1) or (2) may contain the individually identifying information of any detained noncitizen or the noncitizen's health care provider. Except as provided in subparagraph (B), each report submitted under this subsection shall be made available on a publicly accessible website of the relevant agency. None of the reports submitted under paragraph (1) or (2) that is posted on a publicly accessible website may contain the name of the facility administrator referred to in paragraph (1)(A)(iii). The Secretary shall adopt regulations or policies to implement the requirements under this Act at each detention facility managed or overseen by the Department of Homeland Security.