Sanctuary debate: What should immigration enforcement look like at hospitals?

Updated: This story was updated at 7:20 p.m. after Rosa Maria Hernandez was released to her family.

For the US Border Patrol agents standing outside her hospital door, moving a young undocumented immigrant with cerebral palsy into deportation proceedings days after she received emergency surgery was a matter of following policy. 

For the girl, 10-year-old Rosa Maria Hernandez, an already traumatic few days – which had seen her rushed from her home in Laredo, Texas, to a hospital in Corpus Christi a few hours away – had taken another confusing turn.

For immigration attorneys, medical professionals, and advocacy groups, the aggressive pursuit of undocumented immigrants ordered by President Trump has crossed into territory once thought unacceptable. (The American Civil Liberties Union filed suit this week, and the government released her today.)

Hospitals, schools, and places of worship are among the “sensitive locations” identified by federal immigration agencies as places where arrests should be avoided. After incidents like Rosa Maria’s arrest, however, officials are now wondering just how sensitive they really are, and whether they need more formal legal defenses against immigration agents.

“The underlying theme of all these things is there are certain things we value more than immigration enforcement: education, health, and religion, faith,” says Lance Curtright, an immigration attorney in San Antonio. “So when someone sees what happened in Corpus they feel rattled.”

'Frustrating,' but legal

Immigration arrests are up by more than 40 percent since Mr. Trump took office compared with the same period last year, and agencies like US Immigration and Customs Enforcement (ICE) have been making arrests that test the boundaries of policies like the one concerning sensitive locations.

In 2011, ICE disseminated a memo designed to ensure that “enforcement actions do not occur at nor are focused on sensitive locations” sucha as schools, hospitals, and churches, or events like weddings, funerals, and demonstrations. Two years later, US Customs and Border Protection (CBP) implemented a similar memo.

It only took a few years for ambiguities in the memo to be exposed, immigrant advocates say. Hundreds of undocumented individuals were arrested in early 2016, including several students arrested not at their schools, but en route or at bus stops. Since Mr. Trump took office, these kinds of arrests have been increasingly common, advocates say.

In early February, ICE agents arrested a group of undocumented men across the street from a church hypothermia shelter they had been staying at in northern Virginia. Later that month, ICE agents took an undocumented woman from a detention center to a hospital in Texas after she collapsed. After doctors diagnosed her with a brain tumor and put her on a surgery waitlist, they returned her to the detention center. A few days later, in Los Angeles, a young girl recorded ICE agents arresting her unauthorized father as he was dropping her off at school.

Rosa Maria’s case was the latest example – made all the more gut-wrenching, for everyone involved, by the many vulnerabilities of the immigrant at its center.

With her unauthorized parents unable to pass through an interior border checkpoint, she left Laredo in an ambulance with an adult cousin who is a US citizen. When Border Patrol agents stopped them at the checkpoint near Freer, Texas, they were required to take her into custody per a 2008 human trafficking law, a CBP spokesperson said in a statement. With no legal guardian present, Border Patrol agents remained with her until the hospital discharged her, the spokesperson added. The agents then, as policy for unaccompanied and undocumented minors dictates, transferred her to the Department of Health and Human Services’ Office of Refugee Resettlement. Rosa Maria spent three days in a shelter for unaccompanied minors in San Antonio before being released to her parents Friday, though she could still be entered into deportation proceedings.

“We’re thrilled that she can go home to heal surrounded by her family’s love and support,” said Michael Tan, staff attorney with the ACLU’s Immigrants’ Rights Project. But the fact she was targeted at all "remains unconscionable," he added. “No child should go through this trauma and we are working to make sure it doesn’t happen again.”

Since her case made national news last week, immigration officials maintained that they'd had no choice but to detain her.

“The agent is wrong if he lets her go. We don’t have the discretion,” Dan Hetlage, a CBP spokesman, told National Public Radio.

“It’s frustrating for us,” he added. “I’m a human being. The agents are trying to do their job as humanely as possible.”

Jerry Robinette, a former ICE agent in San Antonio, says he is glad he wasn’t in the agents’ situation, but stresses that their hands were tied by the law.

“Who do you turn that minor over to? Someone’s got to be responsible for that minor. It’s a no-win situation unfortunately,” he adds.

The sensitive locations memo also wasn’t applicable in this location, since the enforcement action began at a checkpoint.

A chilling effect

That is a lot of nuance that many of the millions of unauthorized immigrants in the US may not be able to appreciate, however. Thus, advocates say sensitive locations like hospitals and schools may need “sanctuary” policies, if only to reassure people that they will be protected from immigration enforcement.

“I don’t think the community that is impacted necessarily sees those semantics,” says Amy Fischer, policy director for Refugee and Immigrant Center for Education and Legal Services (RAICES). “The reality is is that a lot of these locations that are sort of accustomed to being sensitive locations are really needing to reassess what is actually happening and what they can possibly do to protect people.”

If they don’t, she adds, unauthorized immigrants and their families may be too afraid to seek medical care for fear of exposing themselves to immigration agents.

Schools represent a precedent for that outcome. The day after immigration agents arrested an undocumented teen on his way to school in North Carolina last year, one-third of students in his English as a Second Language class were absent. One day after ICE raided a trailer park in Las Cruces, N.M., there was a 60 percent spike in absences in the city’s public schools, including a 150 percent spike in elementary schools.

Medical professionals and attorneys are concerned about a similar chilling effect on community health from arrests around hospitals. If an immigrant avoids seeking medical care, not only could they be putting their own health at risk, but also the health of others, advocates say.

“The community as a whole is healthier when everyone can access health care,” says Mayra Joachin, a staff attorney with the National Immigrant Law Center.

'Uncharted territory' for hospitals

Dozens of school districts around the country have created or revised “sanctuary school” policies since Trump entered office, in districts ranging from Miami and Milwaukee to Des Moines and Portland, Ore. Some districts have trained staff on what to do when immigration agents come to a school.

Hospitals have been slower to adopt sanctuary policies, however.

California is the frontrunner in this respect, with hospitals declared “safe zones” in its new “sanctuary state” law – which limits state and local law enforcement with federal immigration agencies. Other states are now considering similar steps as well.

Joshua Abrams, an attorney for Partners HealthCare, the largest provider in Massachusetts, told WBUR that while it has no specific sanctuary policy, they “have advised clinicians not to proactively ask about immigration status, not to document it unless it’s for some reason necessary for the care being provided.”

Medical facilities already have some robust legal protections, such as the Health Insurance Portability and Accountability Act (HIPAA), which requires them to keep certain patient information confidential. Individual facilities also regularly interface with law enforcement agencies and have policies for those situations.

But there are still ambiguities when it comes to immigration enforcement, says Altaf Saadi, a fellow in the National Clinician Scholars Program at the University of California, Los Angeles.

“It’s important for hospitals to be proactive in implementing [sanctuary] policies to protect their patients,” she adds. “If you’re waiting until a situation happens, it’s too late at that point.”

Hospitals are chaotic places and rely on policy and procedure to run smoothly, but Dr. Saadi believes those policies and procedures should be adapted and codified for immigration enforcement situations. Hospitals are a mix of public and private spaces, for example, and hospital staff may not be sure where immigration agents may be allowed to go or what kind of signed legal permission they would need to go there.

“This is uncharted territory for a lot of hospitals,” says Saadi, who co-authored an opinion article in the Journal of the American Medical Association last month arguing for “sanctuary hospital” policies.

“Currently at a lot of places, if [immigration enforcement actions] were to happen, a lot of people wouldn’t know what to do,” she adds.

A very fine line

Some advocates are also calling for the sensitive locations memo to have certain caveats removed – like one allowing agents to enter a sensitive location with a supervisor’s permission – or to be enshrined in law.

“We have a sensitive locations memo, but it’s really [dependent on] who’s running which ICE office, and what they’re preaching to their ICE officers,” says Dominique Poirier, director of legal services for Just Neighbors, a Virginia-based immigrant advocacy group.

In Virginia, she adds, immigration agencies “have been more observant of their memo than other parts of the country, but it’s an office-by-office assessment.”

Indeed, many attorneys and advocacy groups interviewed by the Monitor said they hadn’t heard of any explicit violations of sensitive locations policies. But immigration attorneys and advocates say they’ve seen more reports of possible violations during the Trump presidency, something they attribute to the administration’s tough immigration policies and rhetoric.

Max Hadler, senior manager of health policy at the New York Immigration Coalition, says that while they’ve received more reports of possible violations, after investigating them they found them not to be true. “It’s entirely attributable to the culture of fear that the Trump administration has cultivated.”

Stories like Rosa Maria’s arrest, he continues, “point to the fact that ICE and [CBP] are walking a very fine line toward violating their own existing policy.”

One-time incident or new normal?

Mr. Curtright, the San Antonio immigration attorney, warns medical facilities to not overreact to Rosa Maria’s arrest.

“I’m hopeful this is just a one-time incident, but this is in the news and it happened, so I think hospitals need to take it into consideration,” he says. “I don’t think they should make policy changes, I just think they should be vigilant.”

Because while there may be few examples of immigration agents violating specific policies, what is considered a compassionate application of immigration law appears to be changing.

In Rosa Maria’s case, the border patrol agents “did show compassion by recognizing what the situation was and allowing her to proceed with her treatment, instead of immediately putting her into deportation proceedings,” says Jessica Vaughan, director of policy studies for the Center for Immigration Studies, which supports strict immigration policies.

“It’s not like a Border Patrol agent wakes up and says, ‘Today I’m going to arrest 10-year-old girls,’ ” she adds. “This is a case that fell into their lap during routine enforcement.”

Yet there were numerous opportunities for the CBP agents to exercise discretion in Rosa Maria’s case, wrote Edward Alden this week for the Council on Foreign Relations, including the decision to stop her ambulance and the decision to place her in removal proceedings.

The fact those decisions were made, he added, indicates that the US Department of Homeland Security (which includes ICE and CBP) “now appears intent to all but eliminate even the narrow use of prosecutorial discretion.”

“This is an extreme interpretation that is unjustified by both the history of US treatment of undocumented migrants, and by American public opinion,” he continued, citing an October Fox News poll that found 83 percent of Americans support a pathway to citizenship for unauthorized immigrants brought to the US as children.

On Friday evening, Rosa Maria was able to return home to her parents, the ACLU announced. But Rep. Joaquin Castro (D) of Texas warned that her ordeal may not be over.

“The Trump Administration has not made clear whether they will proceed with deportation proceedings against her," he said in a statement. "I urge the Department of Homeland Security to abide by its claims that dangerous criminals are the agency’s priority and reinforce its sensitive locations policies to employees. A case like Rosa Maria’s should never happen again.”

And while Rosa Maria's release resolves the lawsuit, one major question still remains unanswered.

“Is this the new normal?” Mr. Tan asked in an earlier phone interview. “That’s the question raised by these kinds of events.”