ACLU Sues Over 10-Year-Old Undocumented Immigrant Seized After Emergency Surgery

Border Patrol agents took Rosa Maria Hernandez into custody in Texas last week.
An image of Rosa Maria Hernandez from a GoFundMe page started by Priscila Martinez.
An image of Rosa Maria Hernandez from a GoFundMe page started by Priscila Martinez.

The ACLU sued the Trump administration on Tuesday for detaining a 10-year-old undocumented immigrant and separating her from her parents after Border Patrol agents encountered the girl at a Texas checkpoint on her way to emergency surgery.

The ACLU gave notice on Monday that it would file a lawsuit if the Office of Refugee Resettlement failed to release 10-year-old Rosa Maria Hernandez by 3 p.m. on Tuesday. Rosa Maria remained in custody after the deadline.

“There’s no reason to hold this child,” ACLU attorney Michael Tan told HuffPost. “This is probably the most outrageous case I’ve ever worked on. It’s mind-boggling.”

Rosa Maria’s case drew nationwide attention last week, when Border Patrol agents apprehended her after she underwent emergency gallbladder surgery. Rosa Maria has cerebral palsy and developmental delays, and has lived in the U.S with her family since she was 3 months old ― not exactly the type of hardened criminal undocumented immigrant the Trump administration has claimed is its primary focus.

Border Patrol agents encountered Rosa Maria Oct. 24 while she was being transported in an ambulance from a hospital in Laredo, Texas, where she lives with her family, to another hospital in Corpus Christi. Border Patrol operates as much as 100 miles from the border, so checkpoints are often unavoidable for people in border regions.

Border Patrol agents delayed the ambulance for 30 minutes, according to the ACLU. They eventually allowed Rosa Maria continue to the Corpus Christi hospital, but followed her and waited as she underwent emergency surgery. Agents apprehended Rosa Maria on Wednesday, when she was discharged from the hospital.

The Trump administration then took the girl to an Office of Refugee Resettlement shelter in San Antonio, treating her as an unaccompanied minor immigrant ― even though she has lived with her parents for her entire life, most of it in the U.S. (Rosa Maria’s adult cousin, who is a U.S. citizen, had accompanied her to the Corpus Christi hospital rather than her parents.)

Unaccompanied minors apprehended at the border go into the custody of the Office of Refugee Resettlement until it can find sponsors to take them in, but officials would allow neither Rosa Maria’s cousin nor her grandfather, a legal permanent resident, to take her home, according to a family attorney.

The ACLU argued in a letter Tan wrote on Monday that Rosa Maria’s detention is illegal and has no basis, in part because she should not be considered an unaccompanied minor. Her arrest and detention violates a 1997 legal settlement that requires the government to place immigrant children in “least restrictive setting appropriate to the minor’s age and special needs” and to “release a minor from [their] custody without unnecessary delay,” Tan wrote.

The government has not alleged that Rosa Maria’s family is unfit, Tan said. In the letter, he wrote that Rosa Maria, who has the cognitive development of a 6-year-old, “is completely dependent on her mother” due to her medical condition, and “needs this care, stability, routine, and support.”

“It’s a nightmare for the family,” Tan told HuffPost. “It’s horrible.”

“The president’s callous immigration policies continue to reach new, inhumane lows.”

- Rep. Joaquin Castro (D-Texas)

Customs and Border Protection, which includes the U.S. Border Patrol, said in a statement that agents had to take the child into custody after encountering her because she was in the U.S. without legal status and was not with her parents.

“The law specifically defines who is a parent or legal guardian and there is no discretion with regard to the law whether or not the agents should enforce the law,” CBP said in a statement.

CBP also defended the agents against allegations that they violated its “sensitive locations” policy, which instructs immigration and border enforcement officers to avoid medical facilities, along with schools, places of worship and protests.

“CBP has a policy regarding sensitive locations such as hospitals, but it should be stressed that the encounter took place at a checkpoint and the actions taken were in accordance with the law and carried out as humanely as possible,” the agency said in its statement.

The Office of Refugee Resettlement declined to comment on a specific case as a matter of policy, but said in a statement that the agency has procedures to ensure safety of minors in its custody, including their health care. Its policy requires the release of minors to sponsors in a “safe and timely” manner “that promotes public safety and ensures that sponsors are able to provide for the physical and mental well-being of” the unaccompanied minor, according to the agency.

Members of Congress, religious leaders and human rights advocates have decried Rosa Maria’s detention, in part because she was stopped on her way to emergency surgery and taken into custody during her recovery. Border Patrol officers followed Rosa Maria and entered the hospital in spite of the agency’s “sensitive locations” policy.

“Any plans for Rosa Maria’s removal from the United States should be cancelled and any proceedings against her should be administratively closed based on humanitarian grounds,” Rep. Joaquin Castro (D-Texas) said in a statement on Tuesday. ”The Trump administration needs to focus its resources on targeting dangerous criminals, not ill children. The president’s callous immigration policies continue to reach new, inhumane lows.”

This article has been updated with comment from CBP.

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April 2015

How Donald Trump Talks About Undocumented Immigrants

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