Wyden, Merkley Call for Investigation into Reported Violations of Sensitive Locations Immigration Enforcement Policy

Oregon senators’ letter follows reports that a 10-year-old girl with cerebral palsy was arrested from her hospital bed

Washington, DC – Following reports that a 10-year-old girl with cerebral palsy was detained on her way to receive surgery, U.S. Senators Ron Wyden and Jeff Merkley are calling for an investigation into ongoing violations of federal policies regarding immigration enforcement at sensitive locations like schools, hospitals, and religious institutions.

The Oregon senators’ letter – also signed by 14 of their colleagues -- details the reported detention of the girl stopped by immigration authorities on her way to the hospital for gallbladder surgery. Armed agents later arrested the child directly from her hospital bed as she was recovering from the surgery.

“If these reports are accurate, these actions are not only horrifying—they are also an egregious violation of established Department policy,” Wyden and Merkley wrote in the letter to Acting Secretary of Homeland Security Elaine Duke and Acting Customs and Acting Customs and Border Protection Commissioner Kevin McAleenan. “We ask that the Department launch an investigation into possible violations of the sensitive locations policy.”

The Protecting Sensitive Locations Act codifies the Department of Homeland Security’s existing policies and expands on those policies to ensure that immigrants are able to access education, criminal justice, and social services without fear of deportation.

The letter was also signed by U.S. Senators Richard Blumenthal (D-CT), Dianne Feinstein (D-CA), Sheldon Whitehouse (D-RI), Edward J. Markey (D-MA), Catherine Cortez Masto (D-NV), Tom Udall (D-NM), Bernie Sanders (I-VT), Kamala Harris (D-CA), Cory Booker (D-NJ), Kirsten Gillibrand (D-NY), Elizabeth Warren (D-MA), Patrick Leahy (D-VT), Tammy Duckworth (D-IL), and Al Franken (D-MN).

The full text of the Senators’ letter is available here and copied below.

November 13, 2017

The Honorable Elaine Duke

Acting Secretary of Homeland Security

U.S. Department of Homeland Security

3801 Nebraska Avenue NW

Washington, DC 20528

The Honorable Kevin McAleenan

Acting Commissioner

U.S. Customs and Border Protection

1300 Pennsylvania Avenue NW

Washington, DC 20229

Dear Acting Secretary Duke and Acting Commissioner McAleenan:

We write to follow up on our previous inquiry regarding reports of violations of U.S. Customs and Border Protection (“CBP”) and U.S. Immigration and Customs Enforcement (“ICE”) policies on enforcement actions at sensitive locations.

On October 17, we wrote to share our concerns about reports of immigration enforcement agents apprehending undocumented immigrants at or near sensitive locations, such as schools, hospitals, and places of worship. As you know, these arrests run contrary to existing policy. A 2013 CBP memorandum, U.S. Customs and Border Protection Enforcement Actions at or Near Certain Community Locations, limits CBP’s ability to conduct enforcement actions at or focused on a sensitive location unless exigent circumstances exist or prior approval is obtained.[1] This CBP memorandum resembles a 2011 ICE memorandum that lays out similar rules.[2]

Since our letter, a new alleged violation of the policy has come to light. On the morning of October 24, R.M.H., a 10-year-old girl with cerebral palsy, and her cousin were on their way to Driscoll Children’s Hospital in Corpus Christi, Texas, where R.M.H. was scheduled to receive necessary gallbladder surgery.[3] According to news reports and an October 31 lawsuit filed by the American Civil Liberties Union, they were stopped by Border Patrol agents at a checkpoint between their home and the hospital.[4] After questioning them for about 30 minutes, the agents notified them that R.M.H. would be processed for deportation after the surgery and began following them to the hospital. There, armed agents kept watch at the door before allegedly arresting her directly from her hospital bed. R.M.H. was detained under the custody of the Office of Refugee Resettlement before being released on November 3.

If these reports are accurate, these actions are not only horrifying—they are also an egregious violation of established Department policy. As you know, CBP rules bar agents from conducting an arrest inside a hospital except in an “exigent circumstance,” such as when national security or public safety is threatened, or with prior written approval. According to the lawsuit, neither of those conditions were met. There were no indications that R.M.H. or others were in danger, as R.M.H.’s cousin had papers that gave her authority to transport R.M.H. to the hospital. In addition, CBP agents also reportedly did not obtain a warrant or their supervisor’s approval for the arrest. When lawyers from the hospital asked them to leave, they refused to do so.

We ask that the Department launch an investigation into possible violations of the sensitive locations policy. We also ask that you respond to these questions within 30 days:

Did the arrest of R.M.H. occur at a “sensitive location,” as that term is defined in the above-referenced January 18, 2013 CBP memorandum?

Did CBP agents seek and receive written supervisory approval to arrest R.M.H. from the Chief Patrol Agent, Director of Field Operations, Director of Air and Marine Operations, or the Internal Affairs Special Agent in Charge? If yes, which supervisors provided written approval for the arrest?

Was there an “exigent circumstance” that necessitated R.M.H’s arrest? If so, what was it?

Did CBP agents deem that R.M.H. posed a threat to public safety? If so, what threat did she pose?

Did CBP agents contemplate alternative measures in deciding whether and how to take custody of R.M.H.? If so, what were those alternative measures?

Did CBP agents violate the CBP sensitive locations policy when they arrested R.M.H.?

After reviewing R.M.H.’s arrest, do you believe that CBP should have done anything differently?

Has the Department launched an investigation into the circumstances surrounding R.M.H.’s arrest—particularly whether agents violated sensitive locations policy? If so, when will the investigation be completed?

What disciplinary action, if any, will the CBP agents face if the investigation finds that they violated the sensitive locations policy?

What are CBP’s policies and operating procedures regarding medical treatment cases necessitating transit through a Border Patrol checkpoint?

What are CBP’s policies and operating procedures regarding personnel on duty inside hospitals?

We look forward to your timely response.