Well, according to confirmation hearings from Kevin McLeenan, who was the acting commission of Customs and Border Protection at the time this took place, the agents were doing nothing more than fulfilling their legal obligations. They encountered the girl when she was present in the United States without any valid immigration status. Her parents weren't there, so they were obligated to take her into custody. They are also obligated to stay with her at the hospital. So, umm, yeah. Sherman was right about reporters.
From his testimony:
Question 114a: Press reports indicate that Border Patrol agents detained Rosa Maria
Hernandez, a ten-year old child with cerebral palsy after an emergency surgery. CBP agents
reportedly stopped the ambulance at an interior border checkpoint on October 24, 2017 as it was
travelling from Laredo, Texas, to Driscoll Children's Hospital in Corpus Christi. Following Rosa
Maria’s surgery, federal agents took her into custody and placed her in a San Antonio detention
Many press reports regarding the Rosa Maria Hernandez encounter have been inaccurate. Rosa
Maria was traveling in white sedan with an adult male driver and adult female passenger. Agents
subsequently determined that Rosa was an “unaccompanied alien child” (UAC), since she (a)
had no lawful immigration status, (b) is under the age of eighteen, and (c) had no parent or legal
guardian in the United States available “to provide care and physical custody.”
The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA)
provides certain protections for vulnerable minors, including requiring agencies to promptly take
steps to notify the Office of Refugee Resettlement (ORR) of the U.S. Department of Health and
Human Services (HHS), and erring on the side of involving ORR for the protection of the minor.
Indeed, the TVPRA leaves no discretion for any federal agency to decline to turn over a UAC in
its custody to ORR, or to otherwise transfer custody of that UAC to any individual or entity other
than ORR. Thus, once CBP determined that Rosa Maria’s parents were not present and would
not appear to take custody of her, and therefore that she was a UAC, CBP was obligated by law
to transfer her into the custody of ORR.
Question 114d: The 2011 memorandum “Enforcement Actions at or Focused on Sensitive
Locations” includes hospitals in its definition of a “sensitive location”. Please explain why that
guidance was violated in Rosa Maria’s case.
ANSWER: Enforcement actions were not conducted at a sensitive location, which in this case
was Driscoll Children’s Hospital. The unaccompanied child was encountered and taken into
custody at an immigration checkpoint—a CBP operational location—and was already in Border
Patrol custody when she was escorted to the hospital so that she could receive her scheduled
medical care. Because no parent or guardian of Rosa Maria was present at either the checkpoint
or hospital, and no parent or guardian of Rosa Maria contacted Border Patrol during this time,
CBP reasonably determined that Rosa Maria was a UAC at the time she was encountered at the
checkpoint and remained a UAC while in Border Patrol custody at the hospital. As such, CBP
was obligated by law to place Rosa Maria into the care of the U.S. Department of Health and
Human Services Office of Refugee Resettlement after her medical procedure.