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Losing Bigly

December 1, 2017

LOSING BIGLY: HOW THE ACLU’S COMPLAINT FORCED THE U.S. GOVERNMENT TO RELEASE ROSA MARIA

By: David Racine, Volume 102 Staff Member

On October 25, 2017, U.S. Customs and Border Protection (CBP) detained Rosa Maria Hernandez, a ten-year-old child with cerebral palsy who was recovering from an emergency surgery she endured a day prior.[1] National and international media outlets followed Rosa Maria’s unconscionable experience,[2] and on November 3, the ACLU secured Rosa Maria’s release from U.S. Office of Refugee Resettlement (ORR) custody.[3] Unsurprisingly, media coverage focused on the Government’s cruelty in detaining a young child with cerebral palsy who was recovering from surgery. She had been living in Laredo, Texas with her family ever since her mother brought her across the U.S.–Mexico border at the age of three.

Although the extensive media coverage certainly aided the fight for Rosa Maria’s release, the legal firepower of the ACLU ultimately proved decisive. On October 30, the ACLU sent a demand letter to the relevant Government officials,[4] and on October 31, filed in the Western District of Texas a Habeas Petition and Complaint[5] and a Motion for Temporary Restraining Order and Request for Emergency Habeas Relief.[6] Although media outlets have moved on from Rosa Maria’s story and the ACLU has moved on to other important legal battles, it’s worth reviewing this “gem of a complaint.”[7]

In the complaint for this case, R.M.H. v. Lloyd, the ACLU alleged that Rosa Maria’s arrest by CBP violated the Immigration and Nationality Act and the Rehabilitation Act[8] and her transfer to and continued detention in ORR custody violated the Homeland Security Act of 2002, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, the Flores Consent Degree, the Rehabilitation Act, and the Due Process Clause of the Fifth Amendment.[9] In this Post, I will dissect the alleged statutory violations that transpired during CBP’s arrest, rather than detention, of Rosa Maria.

I. ROSA MARIA’S ARREST ALLEGEDLY VIOLATED THE IMMIGRATION AND NATIONALITY ACT

First, the ACLU alleged CBP conducted an unlawful warrantless arrest of Rosa Maria in violation of the Immigration and Nationality Act, 8 U.S.C. § 1357(a)(2). This statute permits immigration officers and employees to conduct warrantless arrests in limited and closely circumscribed circumstances. One such circumstance is when an immigration officer or employee “has reason to believe” that the accused is “in the United States in violation of any . . . law or regulation [made in pursuance of law regulating admission, exclusion, expulsion, or removal of people who are not citizens or nationals] and is likely to escape before a warrant can be obtained for [her] arrest.”[10] Hence, to conduct a valid warrantless arrest under this part of the statute, the immigration officer or employee must have reason to believe that (1) the accused is in the U.S. illegally and (2) is likely to escape before procuring a warrant.

The ACLU zeroed in on the latter half of the above statute. Without a warrant, CBP arrested Rosa Maria without, as the ACLU put it, “any determination that she was likely to escape.”[11] Indeed, as a ten-year-old who has cerebral palsy and was incapacitated at the time of arrest, it was quite unlikely that she would be a flight risk or at risk of escaping in any other way.[12] Furthermore, under the statute, she must be likely to escape before procuring a warrant. The statute’s focus on likelihood of escape before procuring a warrant suggests a preference for obtaining a warrant if time allows, and time almost certainly allowed in this case. Because ORR voluntarily released Rosa Maria days after the ACLU filed its complaint, the court did not weigh the merits of this claim, but nonetheless, it appears that the ACLU had a winner.

II. ROSA MARIA’S ARREST ALLEGEDLY VIOLATED THE REHABILITATION ACT

The ACLU then alleged that CBP violated Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. This statute protects people with disabilities from being “excluded from the participation in, [being] denied the benefits of, or [being] subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency . . . .”[13] The statute protects Rosa Maria, because she has cerebral palsy, which is a disability under the statute.[14] Additionally, as a federal agency, CBP must conform to Section 504 of the Rehabilitation Act. The ACLU alleged that CBP violated this statute by “discriminating against [Rosa Maria] because of her disability, and by failing to provide [Rosa Maria] reasonable accommodations of [sic] her disability.”[15] The ACLU did not, however, outline all of the specific facts that it believed violated the Rehabilitation Act, likely because, in a complaint, the ACLU was only required to provide “a short and plain statement of the claim showing that the pleader is entitled to relief.”[16] Nonetheless, one can surmise that physically detaining Rosa Maria, when her doctor firmly recommended that her mother care for her at home, and failing to provide adequate care for her while in CBP’s detention were among the Rehabilitation Act violations that the ACLU was contemplating.

The ACLU’s complaint will remain untested in court, because ORR released Rosa Maria three days after the ACLU filed suit. Although ORR and CBP provided no reason for her release, the ACLU’s involvement in the case and strong evidence of unlawful conduct by the Government were likely enough to convince the Government to concede and cease depriving Rosa Maria of her liberty.

  1. Vivian Yee & Caitlin Dickerson, 10-Year-Old Immigrant Is Detained After Agents Stop Her on Way to Surgery, N.Y. Times (Oct. 25, 2017), https://www.nytimes.com/2017/10/25/us/girl-cerebral-palsy-detained-immigration.html. ↑
  2. Heidi Zhou-Castro, Disabled 10-year-old Immigrant Faces Deportation in the US, Al Jazeera (Nov. 5, 2017), http://www.aljazeera.com/news/2017/11/disabled-10-year-old-immigrant-faces-deportation-171105112842611.html; Maria Sacchetti, A Girl with Cerebral Palsy Is Being Held in Immigration Detention. The ACLU Just Sued for Her Release., Wash. Post (Oct. 31, 2017), https://www.washingtonpost.com/local/immigration/a-girl-with-cerebral-palsy-is-being-held-in-immigration-detention-the-aclu-just-sued-for-her-release/2017/10/31/8453eb50-be53-11e7-959c-fe2b598d8c00_story.html; Rosa Maria Hernandez: Texas Holds Disabled Migrant Girl, 10, BBC News (Oct. 26, 2017), http://www.bbc.com/news/world-us-canada-41767631. ↑
  3. Press Release, American Civil Liberties Union, Child with Cerebral Palsy Detained by Border Agents After Surgery Reunited with Family (Nov. 3, 2017) (on file with author), https://www.aclu.org/news/government-releases-10-year-old-rosa-maria-hernandez-after-aclu-files-lawsuit. ↑
  4. Demand Letter from Michael K. T. Tan, Staff Attorney, American Civil Liberties Union, to Scott Lloyd, Director, Office of Refugee Resettlement (Oct. 30, 2017) (on file with author), https://www.aclu.org/sites/default/files/field_document/2017_10_30_demand_letter_regarding_rosa_maria_hernandez.pdf. ↑
  5. Complaint, R.M.H. v. Lloyd (W.D. Tex. Oct. 31, 2017), https://www.aclu.org/sites/default/files/field_document/rmh_v._lloyd_complaint_1.pdf. ↑
  6. Motion for a Temporary Restraining Order and Request for Emergency Habeas Relief, R.M.H. v. Lloyd (W.D. Tex. Oct. 31, 2017), https://www.aclu.org/sites/default/files/field_document/rmh_v._lloyd_tro.pdf. ↑
  7. Shoba S. Wadhia (@shobawadhia), Twitter (Nov. 1, 2017, 5:42 AM), https://twitter.com/shobawadhia/status/925674369916993536. ↑
  8. Complaint, supra note 5, ¶¶ 108–21. ↑
  9. Complaint, supra note 5, ¶¶ 84–107, 113–21. ↑
  10. 8 U.S.C. § 1357(a)(2) (2012). ↑
  11. Complaint, supra note 5, ¶ 110. ↑
  12. Complaint, supra note 5, ¶ 111. ↑
  13. 29 U.S.C. § 794(a) (2012). ↑
  14. 28 C.F.R. §§ 35.108(b)(2) & (d)(2)(iii)(G); 29 C.F.R. § 1630.2(j)(3)(iii). ↑
  15. Complaint, supra note 5, ¶ 117. ↑
  16. Fed. R. Civ. Pro. 8(a)(2). ↑
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