Know Your Rights: Pregnant, Postpartum, and Nursing People Facing Immigration Enforcement 

ICE has a special policy (PDF) that tells officers when they can detain a pregnant, postpartum, or nursing person. It says that usually, you should not be detained unless there are “exceptional circumstances,” or the law requires your arrest and detention. This is sometimes called “mandatory detention (PDF).”

Exceptional circumstances mean that there is something in your background that makes you a threat to the country (“national security threat”) or that you might seriously hurt someone else.

Even if ICE does detain you, their policy also says they must consider at least once a week if you should continue to stay detained and that they must keep track of every pregnant, postpartum, or nursing person in their facilities.

You can ask your immigration officer to release you. With your permission, your friends and family can also send letters of support to the officer handling your case. This request is called a parole application, and you can find a sample here (PDF). ICE has been denying these parole applications. This forces many people needin to file something known as a habeas petition (petition for habeas corpus) to get out of detention. Here is more information on habeas.

ICE is supposed to offer all people an initial health screening within 12 hours of coming to an ICE detention facility. This includes a pregnancy test if you are a woman between 18 and 56 years old. Within 14 days of arriving at an ICE detention facility, the medical staff should do a more detailed health screening. You can ask for a second pregnancy test later in your detention, if you have a reason to suspect that you are pregnant.

ICE is also supposed to detain you at a facility that can meet your medical needs. Some ICE jails have better medical care facilities or are closer to hospitals than others.

You have the right to medical care that meets the unique needs of your pregnancy. For example, a special diet and prenatal vitamins, sleeping on a lower bunk, extra pillows, and appointments to see specialist doctors. The same is true for postpartum follow-up, nursing accommodations, and abortion care.

If you are not receiving the care that you need, you should use the facility’s message system to send messages to your ICE officer. The facility should give you a handbook in your own language that explains how to request medical care and how to send messages to your ICE officer. This is an example of the National Detainee Handbook but some facilities will give you a separate one with more rules about that facility.

There is no public information about what should happen if a person goes into active labor in ICE detention. In the Bureau of Prisons (BOP) (PDF), the government criminal system, the government is supposed to make sure that childbirth takes place at a hospital. Even though there is no specific ICE policy about having your baby in a hospital, ICE detention facilities are required to take you to a community hospital, if medically necessary (PDF). As no detention facility is equipped to take care of someone in active labor, ICE should take you to a hospital.

ICE officers also have a duty to respond to you (PDF) if you are in medical distress while being arrested, transported, or held in detention. In ICE detention, the guards will not be ICE officers. But, they have their own requirements under work contracts to respond to someone who is bleeding, showing signs of labor, etc.

Trigger warning: sexual assault.

ICE detention facilities are supposed to follow a law known as the Prison Rape Elimination Act (PREA). If you are or a loved one is the victim of sexual abuse in detention, you have a right to report the assault and get help. You can call Freedom for Immigrants’ National Immigration Detention Hotline from inside the ICE facility (Dial 9233#). You can also call the ICE Detention Reporting and Information Line (PDF) (Dial 9116#). The law says ICE cannot punish you for reporting sexual abuse.

ICE detention standards (PDF) says nursing people should receive “appropriate accommodations.” But there is no explanation about what that means. You or your attorney should still advocate for ICE facilities or jails holding you to offer or allow someone to bring to you:

• A manual or electric breast pump and a private place to pump.
• A freezer to temporally store your milk and storage bags (or for the facility to allow your friends and/or family to bring storage bags and retrieve them when full).

Generally, what ICE facilities tend to offer to nursing people is medication to relieve pain caused by being unable to feed their child. Some people have also reported that facility staff offered them medicine to dry up their breastmilk. If you develop an infection from being unable to nurse your child or express milk with a pump, you have the right to demand to be seen by the facility’s medical staff.

ICE jails are also supposed to follow recommendations from a national commission on jails. These recommendations say that people should be able to nurse their infants in the hospital and should not be separated prior to discharge from the hospital.

ICE is not supposed to place wrist or ankle shackles on a pregnant person unless there are “extraordinary” circumstances, meaning some unusual reason for specifically needing to put shackles on you. You can demand ICE not use wrist or ankle shackles and that they follow their own rules and the law. You can ask hospital staff to help you make these demands too.

ICE is never allowed to have you in restraints during active labor or delivery. After you have your baby and are recovering, they should not place restraints on you unless there are extraordinary reasons that make using restraints “absolutely necessary.”

ICE is required to have medical personnel review and approve any air travel (PDF) once you are confirmed to be pregnant. Travel after 36 weeks of pregnancy is not recommended.

Because several pregnant, postpartum, and nursing people have been arrested at an ICE check-in or released from detention and told to go to an ICE check-in, in this section, we offer some practical suggestions on how to prepare for these appointments.

ICE uses the check-in appointment for several different reasons. The main ones are:

• To make sure that you are providing an updated address and not working without permission.
• To put someone on a surveillance program that ICE calls their “alternative to detention program.” This usually means ICE puts an ankle monitor or smartwatch on you. There is currently an ICE policy that tells officers to put electronic watches (called “VeriWatch”) on pregnant people, and not an electronic ankle monitor. A group of lawyers are challenging this policy. You can ask your ICE officer or case manager to have the wristwatch taken off. It is best to do this in writing. We provide a sample basic request here.
  • Note for medical providers: People forced to wear the VeriWatch are given a “participant agreement” that states they cannot remove or tamper with the device except as necessary in an emergency or prior approval. In a medical emergency where the device is interfering with care, providers should be able to rely on this exception to remove the device. Especially if you try to talk to ICE ahead of removing the device on your own. The participant agreement should have a phone number to call to talk to the ICE officer or case manager.
• To make sure you are working on getting a passport or travel documents or to give them your passport or travel document. This is so that if you get a deportation order, they can quickly deport you.
• To deport someone who has a deportation order.

An ICE check-in is different from a U.S. Citizenship & Immigration Services appointment for fingerprinting or an interview. It is also different from a hearing with the Immigration Court and an Immigration Judge.

Generally, one or two things may happen. ICE will let you leave the check-in appointment with a new date to return, or ICE will not let you leave the office. If ICE does not let you leave the office, it is because they have decided to detain you.

If you already have a deportation order, there may be a greater risk that you will not be allowed to leave. Even with a deportation order, talk to an immigration attorney about anything you can file or be ready to file to require ICE to release you or not detain you. For example, an immigration attorney can be ready to file a habeas corpus petition to ask a federal judge to order ICE to release you.

Your ICE appointment letter. ICE calls this either a Call-In Letter (Form G-56 (PDF)) or sometimes your appointment is written on your Order of Recognizance (Form I-220A (PDF)).

Proof that you are pregnant, postpartum, or nursing. There is no standard “proof” from ICE. It just has to be “credible.” This means that it has to be believable or true.

• If you are pregnant, you could bring:
  • A card or letter showing an upcoming medical appointment
  • A sonogram picture with a date
  • A letter from your midwife or doctor confirming your due date
• If you are postpartum, you could bring:
  • Your child’s birth certificate
  • Insurance bills showing the date that you had your baby
  • Your child’s medical records showing their date of birth within the last year.
• If you are nursing, you could bring:
  • Your child’s medical records stating that they are breastfed
  • Dated medical records from complications from nursing like mastitis
  • Letter from any nursing support groups or providers confirming that you are nursing
• Proof that you have a breast pump (for example, a receipt for buying one or insurance letters confirming you are eligible for one).
• You should never be required to express milk as proof that you are nursing

If you have any medical complications due to pregnancy or during this postpartum period, bring proof of that too. These can be physical and mental health complications like postpartum depression or anxiety. A letter from your medical provider is likely the simplest way to cover a lot of information below. But if you cannot get a letter, here are some examples of things to bring to show you require higher level of medical care:

• Bring your medication prescriptions (or empty pill bottles with your name and medication name on the label). Unfortunately, if ICE plans to arrest you, they will take your medication from you.
• Discharge papers from the last time you received medical care or the birth of your baby.
• If you are scheduled for an induction or a c-section, bring anything to show that you have future surgeries or procedures scheduled.