Detained 10 year old Immigrant Returned to Family

departed stamp

Rosa Maria Hernandez, an undocumented immigrant from Mexico, has been returned to her family in Laredo, Texas. Rosa Maria was stopped on October 24th en route to hospital for an emergency gallbladder surgery.

Under s.462 of the Homeland Security Act (2002, Public Law, 107-296), Border Patrol agents have the authority to take unaccompanied immigrant minors into custody. What makes this case troubling is that Rosa Maria was never without a legal guardian, making her detainment unjustified under this provision. What is more troubling is the delay the stop of the emergency vehicle ICE agents made, as well as their decision to detain her immediately upon her release while she was still recovering from surgery.

The American Civil Liberties Union (ACLU) is currently launching a lawsuit for the abuse of power Rosa Maria suffered. They argue that the arrest was without warrant and without the appropriate authority, violating Rosa Maria’s right to due process, while also ignoring federal protections for minors.

“Border Patrol agents approached the vehicle and asked to see everyone’s “papers.” After she and the driver provided their identification, Aurora explained that they were on their way to a hospital and that Rosa Maria needed an operation. She showed the agents medical documentation and explained that at 10 years old, Rosa Maria did not carry ID.

“Nonetheless, the vehicle was forced to pull over. After a half an hour or so, the Border Patrol agents said that Aurora and Rosa Maria could continue onto the hospital, but that they were going to follow them and once the surgery was over, “the girl” would be “processed” for deportation.” Amrit Cheng, ACLU, October 31st, 2017

Rosa Maria’s case has added to the ongoing debate over illegal immigration. Although US Immigration and Customs Enforcement has the authority to process illegal immigrants such as Rosa Maria, there is no requirement that she needed to be detained or taken into custody.

In fact, because her parents are in the US, she can legally stay in their care throughout the duration of the case. Not only was this an instance of an egregious use of power, it was unlawful and potentially dangerous, running counter to the intent of the provisions in s.462(b)(1)(B) “ensuring that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child”.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the view of the CCLA or PBSC.

About the Author

Nathan Prendergast
Nathan is a second year in the JD program at the University of Windsor Faculty of Law.