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 being detained. They didn’t leave.

For two weeks, Immigration and Customs Enforcement contractors sat guard in the hospital lobby 24 hours a day, working in shifts to monitor her movements, her attorney Ming Tanigawa-Lau said.

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

“She described it to me as feeling like she was being tortured,” Tanigawa-Lau said.

Legal experts say ICE agents can be in public areas of a hospital, such as a lobby, and can accompany already-detained patients as they receive care, illustrating the scope of federal authority. Detained patients, however, have rights and can try to advocate for themselves or seek legal recourse.

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 put money toward legal aid efforts. The California Department of Social Services lists some legal defense nonprofits that have received funds.

Sophia Genovese, a supervising attorney and clinical teaching fellow at Georgetown Law, said law enforcement officers, including federal immigration agents, can guard and even restrain 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 those laws, patients can ask to speak with medical providers in private and to seek and speak confidentially with legal counsel, she said.

“ICE should be stationed outside of the room or outside of 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 lawyers. “That’s what they’re supposed to do.”

ICE Guidelines

When it comes to communication and visits, ICE’s standards state that detainees should have access to a phone 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 agents arrest someone without a warrant, they must tell them why they’ve been detained and generally can’t hold them for more than 48 hours without making a custody determination. 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 in a Los Angeles hospital for 37 days without being charged and was registered under a pseudonym.

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

The assistant secretary for public affairs at DHS, Tricia McLaughlin, said that 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 evade federal officers during a raid. She said officers did not prevent him from seeing his family or from using the phone.  

“All detainees have access to phones 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 address questions about staffing cuts at the ombudsman offices.

DHS also said Solis-Portillo was in the country illegally. The department said she had been removed from the United States twice and arrested for the crimes of false identification, theft, and burglary.

“ICE takes its commitment to promoting safe, secure, humane environments for those in our custody very seriously,” 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 24-hour emergency care.”

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 restrict law enforcement or security personnel from being present in public areas which include the hospital lobby/waiting area.”

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

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

Hospitals will defer to law enforcement on whether a patient needs to be monitored at all times, according to association spokesperson Jan Emerson-Shea. If law enforcement officers overhear medical information about a patient while they’re in the hospital, it doesn’t constitute a patient-privacy violation, she added.

“This is no different, legally, from a patient or visitor overhearing information about another patient in a nearby bed or emergency department bay,” Emerson-Shea said in a statement.

She didn’t address whether patients can demand privacy with providers and attorneys, and she said hospitals don’t tell family and friends about the detained patient’s location, for safety reasons.

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

“Hospitals used to be a sanctuary place, and now they’re not,” she said. “And it seems like ICE has just been running rampant.”

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

Solis-Portillo’s lawyer, Tanigawa-Lau, said her client ultimately decided to self-deport 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 really terrible, I’m glad that there’s more awareness now about this issue,” Tanigawa-Lau said.