118 HR 6298 IH: Stop Shackling and Detaining Pregnant Women Act
U.S. House of Representatives
2023-11-08
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EN
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I
118th CONGRESS
1st Session
H. R. 6298
IN THE HOUSE OF REPRESENTATIVES
November 8, 2023
Ms. Garcia of Texas (for herself, Mrs. Watson Coleman, Ms. Norton, Ms. Jackson Lee, Mr. Carter of Louisiana, Ms. Schakowsky, Ms. Lee of California, Ms. Crockett, Mr. García of Illinois, Ms. Salinas, Ms. Moore of Wisconsin, Mr. Johnson of Georgia, Mr. Grijalva, Ms. Kamlager-Dove, and Ms. DeGette) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To safeguard the humane treatment of pregnant women by ensuring the presumption of release and prohibiting shackling, restraining, and other inhumane treatment of pregnant detained noncitizens, and for other purposes.
1.

Short title
This Act may be cited as the “Stop Shackling and Detaining Pregnant Women Act”.
2.

Limitation on detention of pregnant women and mothers of newborns
(a)

Presumption of release
(1)

In general
Except as provided in paragraph (2), the Secretary—
(A)
shall not detain 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 individual is to be removed from the United States; and
(B)
shall immediately release any detained noncitizen found to be pregnant.
(2)

Exceptions
The Secretary may detain pursuant to the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) an individual who is known to be pregnant, lactating, or postpartum—
(A)
under extraordinary circumstances in which the Secretary makes an individualized determination that credible, reasonable grounds exist to believe that the individual presents an immediate and serious threat of hurting themselves or others; and
(B)
if such detention is the least restrictive means available to mitigate such threat.
(3)

Removal
In a case in which detention is the least restrictive means of effectuating the removal from the United States of a pregnant individual subject to a final order of deportation or removal, the Secretary may, solely for the purpose of such deportation or removal, detain the pregnant individual for a period that is—
(A)
the shortest possible period immediately preceding the deportation or removal of the individual from the United States; and
(B)
not more than 5 days.
(b)

Biweekly review required
(1)

In general
With respect to a noncitizen detained under paragraph (2) of subsection (a), not less frequently than every 14 days, the Secretary shall conduct an individualized review to determine whether the detained noncitizen continues to be subject to detention under that paragraph.
(2)

Release
In the case of a determination under paragraph (1) that a pregnant noncitizen is no longer subject to detention under subsection (a)(2), not later than 24 hours after the Secretary makes the determination, the Secretary shall release the noncitizen.
3.

Humane treatment of pregnant detained noncitizens while in detention and custody
(a)

Prohibition on restraint of pregnant detained noncitizens
(1)

Prohibition
Except as provided in paragraph (2), restraints shall not be used on a noncitizen in the physical custody of the Department of Homeland Security who is known to be—
(A)
pregnant, including during—
(i)
labor;
(ii)
transport to a medical facility or birthing center; or
(iii)
delivery;
(B)
lactating; or
(C)
postpartum.
(2)

Exceptions
(A)

In general
Notwithstanding paragraph (1), 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—
(i)
credible, reasonable grounds exist to believe the detained noncitizen presents an immediate and serious threat of hurting themselves, staff, or others; or
(ii)
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.
(B)

Requirement for least restrictive restraints
In the rare event of an extraordinary circumstance described in subparagraph (A), only the least restrictive restraint necessary shall be used, except that—
(i)
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
(ii)
under no circumstance shall—
(I)
a leg, waist, or 4-point restraint be used;
(II)
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;
(III)
a detained noncitizen be restrained in a face-down position or on their back; or
(IV)
any restraint be used on any detained noncitizen who is in labor or delivering.
(3)

Record of extraordinary circumstances
(A)

Requirements
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—
(i)
record in writing the finding that describes the medical purpose or extraordinary circumstance that dictated the use of the restraint; and
(ii)
submit the finding to the Director.
(B)

Retention
(i)

Facility
With respect to a written finding under subparagraph (A)(i), the facility administrator shall—
(I)
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
(II)
make a copy of the finding available for public inspection on request, only after making appropriate redactions so as to protect personally identifiable information.
(ii)

Immigration and Customs Enforcement
With respect to a written finding submitted to the Director under subparagraph (A)(ii), the Director shall maintain the written finding and make the finding available for public inspection only after making appropriate redactions so as to protect personally identifiable information.
(b)

Prohibition on presence of nonmedical staff
(1)

In general
Except as provided in paragraph (2), nonmedical staff shall not be present in the room during a pelvic exam, labor, delivery, or treatment of any other symptom relating to a pregnancy of a detained noncitizen, unless specifically requested by medical personnel.
(2)

Exception
If the presence of nonmedical staff is requested by medical personnel, the nonmedical staff shall—
(A)
be of the detained noncitizen’s gender of choice, if practicable; and
(B)
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.
(3)

Use of restraints
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, as required by subsection (a)(2)(B)(i).
(c)

Access to services
(1)

U.S. Immigration and Customs Enforcement custody
A pregnant detained noncitizen in the custody of U.S. Immigration and Customs Enforcement shall have access to health care services, including comprehensive services relating to reproductive health care and pregnancy, including—
(A)
routine or specialized prenatal care;
(B)
comprehensive counseling and assistance;
(C)
postpartum physical and mental health care, including substance use disorder treatment;
(D)
lactation services; and
(E)
abortion services.
(2)

U.S. Customs and Border Protection custody
The Commissioner shall ensure that minimum standards of care are met for pregnant detained noncitizens in the custody of U.S. Customs and Border Protection.
4.

Notice of rights and training
(a)

Notice of detained noncitizen rights
The Secretary shall provide to each detained noncitizen, in the detained noncitizen’s native language, notice of the detained noncitizen’s rights under this Act.
(b)

Training for DHS employees
At the time of hiring, and annually thereafter, the Secretary shall provide training on the requirements of this Act to each employee of the Department of Homeland Security who has a role in the detention or care of a pregnant detained noncitizen or a postpartum parent of a newborn detained under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).
5.

Reporting; rulemaking
(a)

Reports
(1)

Reports by facility administrators
Not later than 30 days after the end of each quarter fiscal year, the facility administrator of each facility that detained a pregnant noncitizen during the quarter shall submit to the Secretary a written report that includes, with respect to the facility during the quarter, the following:
(A)
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 under section 3(a)(2)(A).
(B)
The number of pregnant noncitizens held at the facility.
(C)
The average length of detention of pregnant noncitizens.
(D)
The number of pregnant noncitizens detained longer than 15 days.
(E)
The number of pregnant noncitizens detained longer than 30 days.
(F)
The number of pregnant noncitizens who gave birth while detained, and a description of the outcomes of such pregnancies, including any pregnancy that resulted in a live birth, stillbirth, miscarriage, abortion, ectopic pregnancy, maternal death, neonatal death, or preterm birth.
(2)

Audit and reports by Secretary
Not later than 90 days after the end of each fiscal year, the Secretary shall—
(A)
complete an audit of the information submitted under subparagraphs (B) through (E) of paragraph (1);
(B)
submit to the appropriate committees of Congress a report that includes all information submitted under paragraph (1), disaggregated by facility; and
(C)
issue regulations in accordance with national standards regarding minimum standards facilities should provide.
(3)

Privacy
A report submitted under this subsection shall not contain the individually identifying information of any detained noncitizen.
(4)

Public inspection
(A)

In general
Except as provided in subparagraph (B), a report submitted under this subsection shall be made available for public inspection.
(B)

Facility administrator
A report submitted under this subsection that is made available for public inspection shall not contain the name of the facility administrator otherwise included under paragraph (1)(A).
(b)

Rulemaking
The Secretary shall adopt regulations or policies to carry out this Act at each facility.
6.

Definitions
In this Act:
(1)

Appropriate committees of congress
The term appropriate committees of Congress means—
(A)
the Committee on the Judiciary and the Committee on Appropriations of the Senate; and
(B)
the Committee on the Judiciary and the Committee on Appropriations of the House of Representatives.
(2)

Commissioner
The term Commissioner means the Commissioner of U.S. Customs and Border Protection.
(3)

Detained noncitizen
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.).
(4)

Detention officer
The term detention officer means an individual who—
(A)
works at a facility, including an individual who works at a facility pursuant to a contract or subcontract; and
(B)
performs duties relating to the security, custody, or transport of individuals in custody.
(5)

Director
The term Director means the Director of U.S. Immigration and Customs Enforcement.
(6)

Facility
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—
(A)
holds such individuals under a contract or agreement with the Director or the Commissioner; or
(B)
is used, in whole or in part, to hold individuals pursuant to an immigration detainer or similar request.
(7)

Facility administrator
The term facility administrator means the official responsible for oversight of a facility, or the designee of such official.
(8)

Postpartum
The term postpartum means 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.
(9)

Restraint
The term restraint—
(A)
means any physical restraint or mechanical device used to control the movement of the body or limbs of a detained noncitizen’s body, including—
(i)
flex cuffs;
(ii)
soft restraints;
(iii)
hard metal handcuffs;
(iv)
a black box;
(v)
Chubb cuffs;
(vi)
leg irons;
(vii)
belly chains;
(viii)
a security (tether) chain;
(ix)
a convex shield; and
(x)
any other type of shackles; and
(B)
does not include medical restraints.
(10)

Secretary
The term Secretary means the Secretary of Homeland Security.