On Oct. 25, border patrol agents in Texas detained an undocumented 10-year-old girl with cerebral palsy after she was released from the hospital where she underwent emergency surgery. Rosa Maria Hernandez hasn't seen her mother since. In response, the American Civil Liberties Union (ACLU) announced it is suing the Trump administration over Hernandez's "unlawful custody" in the hands of federal immigration authorities.
What stood out to Michael Tan, an ACLU attorney working on the case, was how "egregious and shameless" the border patrol agents were in detaining Hernandez. While there have been reports of border patrol agents following medical transports to hospitals, Tan tells Bustle that he's unaware of other cases involving an undocumented child targeted and separated from their parents in such a way.
The ACLU is also deeply concerned about the health threats posed by keeping a child with cerebral palsy in a detention center. Medical experts have laid out a detailed case for why it's a custodial place "not appropriate for a child like Maria,” Tan says. Hernandez could be at risk for respiratory infections, complications with her recovery process, and so on. All of those dangers are only heightened by the fact that children with CP can have difficulty communicating when they're in pain.
There are significant emotional challenges for Hernandez and her family as well. As Tan tells Bustle, her mother has not been able to sleep, and her sisters are similarly traumatized by their sibling's suffering. Children with CP are dependent on routine, and especially dependent on their primary caregiver — in this case, Hernandez's mother.
The girl's doctor specifically recommended that she be released to a family member. But instead, border patrol agents detained Hernandez, and she has been kept at an Office of Refugee Resettlement facility ever since, over 150 miles away from her home and family in Laredo, Texas.
In defense of the agents' action, HuffPost reported that Customs Border and Protection stated: “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."
But Tan insists that is not true. "They always have discretion to not pursue someone for deportation," he says.
The ACLU reports that border patrol agents delayed the medical transport vehicle carrying Hernandez to surgery for 30 minutes. She was accompanied by her cousin, a 34-year-old U.S. citizen, rather than her undocumented parents. Her 85-year-old grandfather has petitioned the CBP for her custody to no avail.
According to the ACLU's case against the Trump administration, this violates a number of laws, including the Flores Consent Decree, which requires the government to place a child in the "least restrictive setting appropriate to the minor’s age and special needs." As Hernandez certainly poses no danger to anyone, it would be impossible to argue that an ORR detention facility is in compliance with the Flores Consent Decree.
Rosa Maria Hernandez has lived in the United States since the age of three months. She speaks English and attends school five days a week. She lives with her mother, father, and two sisters, whose daily routines would be familiar to millions of families across the country.
As Tan tells Bustle, “Rosa Maria’s case sends a very disturbing message about how this administration is enforcing immigration laws.” He believes that under a different administration, Hernandez would already have been released.
“When you have that message being sent from up top, of course agents on the ground are going to end up targeting children who are on their way to the hospital for a medical procedure,” Tan says. If the case goes the way the ACLU wants it to, Hernandez will be released to her family immediately, and her deportation case will be dropped.