Did Border Patrol Have Right to Deport Baby, a US Citizen, Over Citizen Mom's Objections?
Updated: Deporting a baby, who happened to be a United States citizen, along with her undocumented Mexican father, despite frantic objections from her U.S. citizen mother, was hardly optimal, a federal appeals court said.
But the majority opinion in a sharply divided panel of the New Orleans-based 5th U.S. Circuit Court of Appeals says the Border Patrol was within its rights to do so—on the very same day it picked up the girl’s father, Omar Gallardo, near Lubbock, Texas, for questioning in a murder case. Agents told the then-not-quite-1-year-old girl’s mother, Monica Castro, that she had to get a court order by that afternoon to get her child back from the feds, recounts Adam Liptak in a New York Times column.
Although a lawyer rushed to court to try to obtain the order and Castro called the Border Patrol to plead for more time, their efforts were unsuccessful. By the time Castro saw her daughter again, three years later, the 4-year-old no longer recognized her.
She is appealing the decision by the 5th Circuit to the U.S. Supreme Court, arguing that the Border Patrol shouldn’t be interfering with family court jurisdiction to decide child-custody matters.
In its brief opinion (PDF), the 5th Circuit majority said that the feds had discretion to decide not to hold the child overnight until a court ruling could be obtained, thus providing the United States with sovereign immunity from Castro’s suit under the Federal Tort Claims Act.
Judge James L. Dennis filed an opinion concurring in part and dissenting in part. “The Border Patrol agents cannot be meaningfully said to have “detained” or “deported” [the daughter], because it was Gallardo, and not the Border Patrol, who decided that the baby should go with him to Mexico.”
Related coverage:
ABAJournal.com: “US Citizen Deported as Illegal Alien Returns to Texas, Mulls Possible Suit”
Updated Sept. 23 to cite Dennis’ dissent.
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