A man walks past a mural showing American and Central American flags in Los Angeles. Lucy Nicholson/REUTERS

Immigration agents are forbidden from conducting operations in “sensitive locations.” But recents raids appear to defy the policy.

Around 6:30 a.m. on January 27, 2016, 19-year-old Yefri Sorto-Hernandez, a senior at West Mecklenburg High in Charlotte, North Carolina, was waiting at a school bus stop outside his home when two armed Immigration and Customs Enforcement agents arrested him, just as a bus full of his classmates pulled up.

That’s one version of the story.

The other goes like this: Undocumented Central American immigrant Yefri Sorto-Hernandez was taken into ICE custody outside his home in Charlotte, North Carolina, a few yards away from a bus stop. The agents had no idea that it was even a school bus stop.

The discrepancies between the two accounts may seem small, but they have raised major questions about the Department of Homeland Security’s “sensitive locations” policy, which deems spaces like schools, churches, and hospitals off-limits for immigration enforcement. A 2011 ICE memo created the policy, so that “agents exercise sound judgment when enforcing federal law at or focused on sensitive locations and make substantial efforts to avoid unnecessarily alarming local communities.” Several recent incidents, however, have generated outrage among immigrants’ rights activists, who argue that agents appear to be free to ignore the guidelines.

The toll of “Operation Border Guardian”

Sorto-Hernandez is among 336 people, including six teens from North Carolina, arrested as a part of Operation Border Guardian, which DHS announced in January. The aim of this ongoing program is to round up and remove individuals who came to the country illegally after 2014 and had been ordered deported by an immigration court. (Undocumented immigrants who entered the country before 2014 and have not committed crimes are de-prioritized for deportation, though they can sometimes be caught in ICE’s deportation dragnet.)

Migration from Central America surged that year, as countries like Honduras, Guatemala, and El Salvador were consumed by gang violence. (These conditions were created, at least in part, by the legacy of U.S. involvement in the region in the second half of the 20th century.) As young mothers and unaccompanied minors poured across the southern U.S. border, President Barack Obama declared a “humanitarian crisis.” But when asylum-seekers like Sorto-Hernandez were apprehended at the border, they immediately became high-priority targets for deportation and were rushed through fast-tracked immigration proceedings, often without legal representation. (The government is now facing lawsuits on both these fronts.)

Sorto-Hernandez’ story is a typical one: At 17, he fled local gangs in El Salvador and was picked up by U.S. authorities. While his case unfolded in immigration court, he lived with his parents and attended a public high school in Charlotte. Like many other Central American asylum seekers, he was ultimately ordered removed. The current system is rigged to guarantee orders of deportation and is fundamentally unfair,” Mary Bauer, executive director of the Legal Aid Justice Center, told CityLab in January.

Rounds of raids have taken place since, primarily in Georgia, North Carolina, and Texas—all states where immigration courts tend to be particularly unsympathetic towards asylum seekers. Some deportations have already happened. In other cases, lawyers have scrambled to file emergency appeals. (Sorto-Hernandez was released on bond in May while his appeal is pending with the Bureau of Immigration Appeals.) Many, however, are still stuck in the government’s absurdly expensive detention machinery.

Whether these raids should have taken place at all is one question critics are asking: These are refugees, not criminals, they argue, and should be treated with special care (just like the Cubans fleeing the Castro regime were in the 1990s). While the U.S has seen some success in improving conditions in the Central American countries that sparked the migrant crisis, it hasn’t been enough to still the flow completely. Meanwhile, refugee-processing in that region, which the U.S. government announced a year ago, has hardly made a difference, Huffington Post’s Elise Foley reports.

How and where these raids take place has also caused significant fear and furor. According to a report by the Southern Poverty Law Center, ICE agents entered the homes of their Atlanta targets without warrants, consent, and often through deceptive means:

They frequently deceived residents by saying they were police officers searching for a criminal (even showing a photo of an African-American man in some instances), or by saying the women would only be gone for a few hours to allow ICE to examine their electronic ankle shackles.

The SPLC has now filed a lawsuit against ICE for failing to release information about these operations in response to Freedom of Information Act requests.

In addition, at least two cases have come up where activists say that the “sensitive locations” policy has been breached. Sorto-Hernandez’s disputed bus-stop arrest is the first. The second case involves Reynold Garcia, who was allegedly lured outside a church in Schaumburg, Illinois by ICE agents and arrested.

Protesters in Durham, North Carolina, demand the release of six Central American teens, including Yefri Sorto-Hernandez, who were arrested in recent immigration raids. (Gerry Broome/AP)

What the policy says and what it means

In July, after the outcry surrounding the two cases above, ICE issued a supplementary guidance to their “sensitive locations” policy, reassuring again that its aim is “to enhance the public understanding and trust, and to ensure that people seeking to participate in activities or utilize services provided at any sensitive location are free to do so, without fear or hesitation.”

The new guidance goes into greater detail defining which locations qualify as sensitive. Note the special mention of bus stops (emphasis added):

  • Schools, such as known and licensed daycares, pre-schools and other early learning programs; primary schools; secondary schools; post-secondary schools up to and including colleges and universities; as well as scholastic or education-related activities or events, and school bus stops that are marked and/or known to the officer, during periods when school children are present at the stop;
  • Medical treatment and health care facilities, such as hospitals, doctors’ offices, accredited health clinics, and emergent or urgent care facilities;
  • Places of worship, such as churches, synagogues, mosques, and temples;
  • Religious or civil ceremonies or observances, such as funerals and weddings; and
  • During public demonstration, such as a march, rally, or parade.

In any of the above spaces, ICE cannot arrest, interview, search, or survey individuals for immigration-related purposes. However, the policy has built-in caveats. Officers can enter any of these locations with prior approval from supervisors, or without one in “exigent circumstances” involving a threat to national security or public safety and if there’s an “imminent risk of destruction of evidence material to an ongoing criminal case.” ​

The language in the original memo was vague and easy to circumvent. The supplementary guidance doesn’t make it a whole lot clearer, activists say, and leaves out locations like courthouses. “This guidance is a tweak at the margins of a vast DHS police state that is responsible for mass deportation, surveillance, and civil rights violations,” Paromita Shah, associate director at National Immigration Project of the National Lawyers Guild, said in a statement.

Another concern is that the guidance doesn’t address potential or past breaks with policy. In fact, including school bus stops in the list on the condition that they “are marked and/or known to the officer“ is essentially a direct refusal to take responsibility for cases such as Soto-Hernandez’s*, activists say—and a free pass for future violations. “If the Sensitive Locations memo and the new guidances are just words on a piece of paper, there’s nothing to stop [ICE] from engaging in the kind of egregious behavior it displayed against Reynold and his family again,” Rosi Carrasco, of Organized Communities Against Deportations (OCAD), an anti-deportation organization in Chicago, said in a statement.

ICE insists that no one was arrested at a sensitive location during Operation Border Guardian, and Bryan Cox, the southern regional communications director at the agency, says that he believes no approvals were given for operations in such spaces at least within the last year. Of course, if they were, it’s unclear how anyone would be able to tell. The agency apparently hasn’t been tracking the enforcement actions they conduct on such locations—with or without supervisor approval—since the memo was sent out in 2011. “It is not a common thing,” Cox tells CityLab. “I can’t tell you unequivocally when and/or if the last time one of these was approved. We don’t have official stats on it, so beyond that, I would be speculating.”

From all of this, it’s unclear whether ICE skirted its policy or ignored it completely. What is clear is that both would be easy to do. And either way, the agency has demonstrated that it has disregarded the policy’s underlying purpose: to promote trust in the community whose peace it routinely disrupts.

*CORRECTION: This post has been updated to correct a spelling of Soto-Hernandez’s name.

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