Once a Patient’s in Custody, ICE Can Be at Hospital Bedsides — But Detainees Have Rights

In July, federal immigration agents took Milagro Solis-Portillo to Glendale Memorial Hospital, just outside Los Angeles, after she suffered a medical emergency while in detention. They haven’t left.

For two weeks, Immigration and Customs Enforcement agents stood guard in the hospital lobby 24 hours a day, working in shifts to monitor his movements, his lawyer Ming Tanigawa-Lau said.

ICE then transferred the Salvadoran woman to Anaheim Global Medical Center, against her doctor’s orders and without explanation, her lawyer said. There, Tanigawa-Lau said, ICE agents were allowed to stay in Solis-Portillo’s hospital room 24 hours a day, listening in on what should have been private conversations with providers. Solis-Portillo told her attorney that officers pressured her to say she was well enough to leave the hospital, telling her she couldn’t speak to her family or attorney until she complied.

“She described it to me as a feeling of torture,” Tanigawa-Lau said.

Legal experts say ICE agents can be in public areas of a hospital, such as a lobby, and accompany already detained patients while they receive care, illustrating the extent of federal authority. Detained patients, however, have rights and can try to defend their interests or seek justice.

Earlier this year, California set aside $25 million to fund legal services for immigrants, and some local jurisdictions, including Orange County, Long Beach and San Francisco, have invested funds in legal aid efforts. The California Department of Human Services lists some legal defense nonprofits that have received funding.

Sophia Genovese, a supervising attorney and clinical instructor at Georgetown Law, said law enforcement officers, including federal immigration agents, can keep and even detain a person in their custody who is receiving health care, but they must follow constitutional and health privacy laws regardless of the person’s immigration status. Under these laws, patients can request to speak privately with medical providers and to consult and speak confidentially with legal counsel, she said.

“The ICE should be placed outside the room or within earshot during any communication between the patient and their doctor or medical provider,” Genovese said, adding that the same applies to a patient’s communication with attorneys. “That’s what they’re supposed to do.”

CIE Guidelines

When it comes to communication and visitation, ICE standards state that detainees must have access to a telephone and be able to receive visits from family and friends, “within security and operational constraints.” However, these guidelines are not enforceable, Genovese said.

If immigration officers arrest a person without a warrant, they must tell them why they were detained and generally cannot detain them for more than 48 hours without making a custody decision. A federal judge recently granted a temporary restraining order in a case in which a man named Bayron Rovidio Marin was monitored by immigration agents at a Los Angeles hospital for 37 days without being charged and was registered under an alias.

In the past, violations perceived by agents could be reported to ICE leaders at field offices, agency headquarters or an oversight agency, Genovese said. But earlier this year, the Department of Homeland Security cut staff at ombudsman offices that investigate civil rights complaints, saying they “obstruct immigration enforcement by adding bureaucratic hurdles.”

DHS Deputy Secretary for Public Affairs Tricia McLaughlin said agents arrested Marin for being in the country illegally and that he admitted his lack of legal status to ICE agents. She said agents took him to the hospital after he injured his leg while trying to escape federal agents during a raid. She said the officers did not stop her from seeing her family or using the phone.

“All detainees have access to phones that they can use to contact their families and lawyers,” she said.

McLaughlin said the temporary restraining order was issued by an “activist” judge. She did not respond to questions about staff reductions in the ombudsman’s offices.

DHS also said Solis-Portillo was in the country illegally. The department said she was deported from the United States twice and arrested on misdemeanor charges of false identification, theft and burglary.

“ICE takes very seriously its commitment to promoting safe, secure and humane environments for those in our custody,” McLaughlin said. “It is a long-standing practice to provide comprehensive medical care from the moment an alien enters ICE custody. This includes access to medical appointments and emergency care 24 hours a day.”

Protections in California

Anaheim Global Medical Center did not respond to a request for comment. In a statement, Dignity Health, which operates Glendale Memorial Hospital, said it “cannot legally prevent law enforcement or security personnel from being present in public areas that include the hospital lobby/waiting area.”

California enacted a law in September that prohibits medical facilities from allowing federal agents without a valid search warrant or court order to enter private spaces, including places where patients receive care or discuss health matters. But many of the most high-profile news stories about immigration agents at health care facilities involved detained patients brought in for treatment.

Erika Frank, vice president of legal counsel for the California Hospital Association, said hospitals have always asked law enforcement, including federal agents, to bring in people they have detained who need medical care.

Hospitals will rely on law enforcement to determine whether a patient should be monitored at any time, according to association spokesperson Jan Emerson-Shea. If law enforcement hears medical information about a patient while they are in the hospital, it does not constitute a violation of the patient’s privacy, she added.

“It is no different, legally, than a patient or visitor hearing information about another patient in a neighboring bed or emergency department bay,” Emerson-Shea said in a statement.

She did not say whether patients could demand confidentiality from providers and attorneys, and she said hospitals do not tell family and friends the location of the detained patient, for security reasons.

Sandy Reding, president of the California Nurses Association and who visited the Glendale facility when Solis-Portillo was there, said nurses and patients were afraid to see masked immigration agents in the hospital lobby. She said she saw them sitting behind a registration desk where they could hear people discussing private health information.

“Hospitals used to be places of refuge, but today they are no longer,” she said. “And it seems like ICE has become endemic.”

The Los Angeles County Board of Supervisors is expected to vote Nov. 18 on a proposal to provide more protections for inmates at county-run health care facilities. These include limiting the ability of immigration officers to hide patients’ identities, allowing patients to consent to the release of information to family members and legal counsel, and directing staff to insist that immigration officers leave the room at certain times to protect patient privacy. The county would also defend employees who try to enforce its policies.

Solis-Portillo’s attorney, Tanigawa-Lau, said his client ultimately decided to deport herself to El Salvador rather than fight her case because she felt she couldn’t get the medical care she needed in ICE custody.

“Even though Milagro’s case is truly terrible, I am happy that there is now greater awareness of this problem,” Tanigawa-Lau said.