ACLU Demands Release of 10-Year-Old Immigrant Detained in San Antonio

Aurora Cantu with Rosa Maria after her surgery. - FACEBOOK VIDEO SCREENSHOT VIA EL SHOW DE PIOLIN
Facebook video screenshot via El Show de Piolin
Aurora Cantu with Rosa Maria after her surgery.

The American Civil Liberties Union filed a federal lawsuit Tuesday against the Trump administration, asking for the release of an undocumented 10-year-old who has been detained in a San Antonio shelter since she was discharged after an emergency surgery last week.

Rosa Maria Hernandez, who has cerebral palsy, traveled to the Driscoll Children’s Hospital in Corpus Christi from Laredo, Texas on October 24, accompanied by her 34-year-old cousin Aurora Cantu. Her parents, who are also undocumented, had stayed in Laredo, fearful of crossing the border checkpoint. They asked Cantu, a U.S. citizen, to accompany Rosa Maria to the hospital where she was scheduled to have emergency gallbladder surgery later that morning.

The next day — instead of returning home to her family in Laredo — Rosa Maria was detained by federal immigration agents, and was transported to a shelter for undocumented immigrant children in San Antonio, where she is now being processed for deportation.

The ACLU argues that Rosa Maria’s rights were violated when she was arrested the day after her surgery without a warrant, and that she would not have qualified for a warrantless arrest because she wasn’t a “flight risk” since she was recovering from the surgery.

ACLU attorneys pointed to the U.S. Customs and Border Protection policy for “sensitive locations,” which discourages agents from detaining undocumented people in places like schools, places of worship, and hospitals. Arrests in these “sensitive locations” cannot be carried out unless there is written approval by supervisory officials first — which the ACLU argues the agents who arrested Rosa Maria did not have.

“It is unconscionable to target a little girl in a children’s hospital,” said Michael Tan, an ACLU attorney, in a statement. "The government’s actions are unlawful, cruel, and threaten to keep parents with sick children from seeking care. It is also unconstitutional to deprive a child of the love and care her parents have provided her entire life.”

According to the lawsuit, Cantu and Rosa Maria were stopped at a checkpoint in Freer for approximately 30 minutes, where Border Patrol agents questioned Cantu. Cantu handed them a notarized letter, explaining that Rosa Maria was undocumented and she was traveling to the hospital for the surgery. When they were allowed to continue to Corpus, agents informed Cantu they would be following them to the hospital, and that Rosa Maria would be processed for deportation after her discharge.

Agents “shadowed her every move” during her hospital stay — even after hospital attorneys had informed the agents they could not be there. The agents refused to leave, saying they had to stay because “the girl” was going to be deported, according to the lawsuit. They arrested Rosa Maria “directly from her hospital bed” on October 25.

The ACLU said federal immigration agents disregarded medical advice from Rosa Maria’s doctor, who recommended it was in her best interest for her to be “discharged to a family member that is familiar with her medical and psychological needs.” Rosa Maria is scheduled to follow-up with her physician in Laredo, Texas, on November 2 — though that remains to be seen, since she is still being held 150 miles away in San Antonio.

“First, [Rosa Maria] has lost the caretaker ... who is most familiar with RMH’s treatment needs, and who generally coordinates her medical care and therapy appointments. Second, RMH. has been taken from school, which provides her with special-education classes, physical therapy, and other services in a supportive environment,” ACLU attorneys wrote in the lawsuit.

“Third, RMH has been separated from her medical team, which disrupts her specialized and ongoing therapies. Fourth, the emotional hardship and stress that the separation imposes on both RMH and her parents undermines successful health outcomes for RMH.”

Rosa Maria remains in a San Antonio shelter operated by the Office of Refugee Resettlement. She will not be released back to her parents until the ORR deems them “suitable” to care for her — a process the ACLU says can take several weeks or months. The ACLU also argues that the shelter in which Rosa Maria is being held is for “unaccompanied minors” who come into the U.S. without a guardian, but Rosa Maria has lived in the U.S. with her parents since she was three months old.

“RMH is neither a flight risk nor does she pose a danger to public safety,” her ACLU attorneys wrote. "She is a 10-year-old child with serious medical needs who has lived in a stable home with her family her entire life."