PREGNANT AND DETAINED: CONSTITUTIONAL RIGHTS AND REMEDIES FOR PREGNANT IMMIGRANT DETAINEES.

• Author: Bamaby, Natalie Avery

INTRODUCTION 533 I. PREGNANT WOMEN IN THE IMMIGRATION DETENTION SYSTEM 537 A. The Immigration System: A Broad Overview 538 B. Executive Agency Policies 542 C. Stories on the Ground 545 II. CONSTITUTIONAL FRAMEWORK: DELIBERATE INDIFFERENCE AS APPLIED TO PRETRIAL AND IMMIGRANT DETAINEES AND PREGNANT INMATES 549 A. The Deliberate Indifference Standard 550 B. Application of the Deliberate Indifference Standard 553 1. Deliberate Indifference and Immigrant Detainees 553 2. Deliberate Indifference and Pregnant Pretrial Detainees and Prisoners 555 III. CONSTRUCTING RELIEF FOR PREGNANT IMMIGRANT DETAINEES: POSSIBILITIES AND CHALLENGES PRESENTED BY CONSTITUTIONAL TORT CLAIMS 557 A. Stopping the Harm: Injunctions 558 B. A Foreclosed Federal Right: Bivens Actions 561 C. Where State Tort Law Governs: Federal Torts and Claims Act 564 D. Acting under "Color of State Law": Section 1983 Claims 565 CONCLUSION 569 INTRODUCTION

Two weeks after arriving in the United States seeking asylum, a twenty-three-year-old woman, E, found herself bleeding profusely in her detention cell. (1) She was four months pregnant. (2) Though E begged for help from staff at the facility, they told her they were not doctors and did not help her. (3) She spent about eight days bleeding in her detention cell and ultimately lost her baby. (4) Speaking to reporters after returning to her home country, E said she would never have come to the United States seeking a better and safer life if she had known that she would lose her baby in detention. (5) "My soul aches that there are many pregnant women coming who could lose their babies like I did and that [officials] will do nothing to help them," she said. (6)

Over the last thirty years, the United States has increasingly expanded what is already the largest immigrant detention system in the world. (7) On a daily basis, the U.S. government holds more than 50,000 people awaiting immigration hearings or deportation back to their home country, (8) and the Trump administration sought to increase that number. (9) In recent years, immigration has dominated American political discourse: as the number of immigrants coming to the United States has increased, so too have nativist sympathies. (10) During the past two decades, presidential administrations have enacted policies and regulations that aim to deter immigrants from entering the United States and narrow their ability to remain in the country." The Trump administration in particular mounted significant efforts to change the U.S. immigration system, making it more difficult for immigrants, asylum-seekers, and refugees to enter the country. (12)

As the number of immigrants in detention rise, so do claims of abuses and mistreatment within the system. There is wide documentation of poor detention conditions, inadequate medical care, and overcrowding in government detention facilities. (13) Poor medical care remains the top complaint for immigrants in detention, (14) and U.S. Immigration and Customs Enforcement (ICE) has reported a steady number of immigrant deaths linked to inadequate medical care. (15)

Inadequate medical care and poor detention conditions are particularly troubling for pregnant immigrant women like E, and government reports show that the number of pregnant women in immigration detention increased under the Trump administration. (16) This was largely due to that administration's reversal of an Obama-era policy that gave a presumption of release to pregnant women. (17) The Trump administration justified this reversal by claiming that it was holding people who should rightfully be detained, asserting that it would not create a "special class" of persons exempt from detention. (18)

Holding pregnant women in detention comes at a high cost. Not only do pregnant women experience emotional and mental stress themselves while in detention, but detention increases the risk of miscarriage and other harm to the fetus. (19) Because pregnant detainees have no alternative, detention facilities are constitutionally required to provide them with adequate medical care. (20) In order to address claims of inadequate medical care while in immigration detention, courts have incorporated the deliberate indifference standard from Eighth Amendment jurisprudence into the immigration detention context through the Fifth Amendment, legally treating immigrants in detention the same as pretrial detainees. (21) Though their constitutional claims are brought under a different amendment, immigrant detainees have to meet the same standard as prison inmates to allege inadequate medical care while incarcerated.

However, for many immigrants, this constitutional guarantee bestows a right with almost no remedy. (22) Immigrants must navigate a complex constitutional tort landscape where the type of claim available primarily depends on which entity runs the facility. (23) This means that for pregnant women at certain facilities, even if they can prove constitutional harm, any remedy is still foreclosed. (24) As a result, immigrants face considerable, if not insurmountable challenges when seeking redress for the deprivation of their constitutionally assured medical care.

Pregnant immigrant detainees are entitled to due process constitutional rights; lack of access to appropriate medical care while in detention violates those rights and gives rise to a claim for relief. This Comment explores the legal standard that pregnant women must meet in order to make a constitutional claim, what remedies are available, and the significant challenges that arise in pursuing their claims. Part I gives an overview of the immigration system and its statutory framework as well as executive policies and current detention conditions for pregnant women. Part II reviews the deliberate indifference standard incorporated from prisoner litigation into the immigration context and describes how courts define the constitutional rights of pregnant immigrant detainees through the lens of pretrial detainees and pregnant prisoners. Relying on the case law discussed in Part II, Part III examines the claims available to pregnant women, including an injunction, a Section 1983 claim, a claim under the Federal Torts and Claims Act (FTCA), and a Bivens claim, as well as the substantial challenges pregnant women face in pursuing those remedies.

1. PREGNANT WOMEN IN THE IMMIGRATION DETENTION SYSTEM

   To identify potential constitutional violations of pregnant immigrant women's rights, it is important to understand the immigration landscape more broadly, including its laws, policies, and the stories of immigrants' experiences while in detention. This Part will explore the basic framework of the immigration detention system, the similarities between detention and punitive imprisonment, current executive agency policies, detention conditions, and stories from pregnant women who have been in immigration detention.

   1. THE IMMIGRATION SYSTEM: A BROAD OVERVIEW

      The immigration system in the United States is a civil rather than criminal system. (25) The Supreme Court has repeatedly held that control over immigration is a power solely executed by the political branches. (26) The political branches of government control immigration law through a wide array of statutes, regulations, and executive policies. (27) As a result, detainees interact with a variety of executive agencies that control different components of the immigration process. (28) While in detention, detainees have the most contact with the Department of Homeland Security (DHS). (29) DHS has two enforcement arms: Immigration and Customs Enforcement (ICE), which enforces laws within the interior of the United States, and Customs and Border Protection (CBP), which patrols the United States' international border, regulating and inspecting goods and persons at ports of entry. (30)

      The main law that governs the immigration process is the Immigration and Nationality Act (INA), which gives officials broad authority to detain immigrants and lays out the requirements for mandatory detention. (31) Those subject to mandatory detention include immigrants who present themselves at a port of entry and immigrants who have entered the United States without inspection from government officials. (32) The INA provides for the expedited removal of individuals who present themselves at a port of entry without valid entry documents or are apprehended near the border but have not been admitted by immigration authorities. (33) These individuals are temporarily detained by CBP; afterwards, they are transferred to ICE custody if they request asylum and pass a credible fear interview. (34) ICE also detains individuals who have been apprehended while in the country and placed into removal proceedings. (35) Immigrants are also detained by the United States Marshal Services (USMS), which is the enforcement arm of the Department of Justice (DOJ), when they are prosecuted for federal crimes. (36)

      Though distinct from criminal punishment as a matter of law, the immigration detention system closely resembles criminal imprisonment in its physical representation and treatment of detainees. (37) Many of the ICE detention facilities that hold detainees are county and local jails or privately contracted detention facilities, (38) thus blurring the lines between the criminal and administrative state systems. (39) Though these facilities house "civil immigration detainees" rather than people who have been charged with or convicted of crimes, they essentially function as jails and prisons. (40) Like their criminal counterparts, immigration detainees are held in secure facilities in remote locations, usually far from their families, communities, and counsel. (41) Indeed, many of ICE's facilities were originally built as jails and prisons to house people accused or convicted of crimes. (42) Moreover, like correctional facilities, detention facilities operate with layouts, staffing plans, and...