SAN ANTONIO (CN) – The American Civil Liberties Union followed through Tuesday on its threat to sue the Trump administration for not releasing a disabled, undocumented 10-year-old Mexican girl who was arrested by Border Patrol agents last week at a Texas hospital.
Representing Rosa Maria Hernandez and her mother, Felipa De La Cruz, the ACLU sued U.S. Department of Homeland Security director Elaine Duke, Office of Refugee Resettlement Director Scott Lloyd and several other federal officials on Tuesday afternoon in San Antonio federal court.
The habeas corpus petition, signed by ACLU attorney Edgar Saldivar, seeks an injunction ordering the Office of Refugee Resettlement to immediately release Hernandez, who suffers from cerebral palsy, from Baptist Children’s Home Ministries, a home for orphaned and migrant children in San Antonio, to her parents.
Border Patrol agents took her there on Oct. 25 after arresting her at a Corpus Christi hospital where she had undergone gall bladder surgery.
The lawsuit follows up on a demand letter the ACLU sent government officials on Monday, threatening to sue them Tuesday if Hernandez was not released from custody to her parents.
A spokesperson for the Administration for Children and Families at the U.S. Department of Health and Human Services said Tuesday that it does not comment on specific cases, to protect the privacy of children.
According to the lawsuit, a U.S. Customs and Border Protection spokesperson told a news outlet that the agency, which includes the Border Patrol, was required to arrest Hernandez after they stopped the ambulance taking her to Corpus Christi on Oct. 24 at a checkpoint 34 miles west of Laredo and found she did not have identification or documents to show she has lawful status to be in the United States.
"Recent guidance by the Department of Homeland Security makes clear that agents retain the authority not to seek the deportation of individuals they encounter on a case-by-case basis, and sets forth procedures—specifically, consultation with senior CBP officials—for the exercise of prosecutorial discretion," the lawsuit states.
The ACLU's demand letter says the girl's 34-year-old cousin Aurora Cantu rode with her in the ambulance and persuaded Border Patrol agents to let them go to the hospital after she gave them medical records to prove Hernandez was going to have surgery.
"The agents allowed them to continue on, but stated that they would follow them to the hospital and that once the surgery was over, Rosa Maria would be processed for deportation," the demand letter states. "Throughout the time that Rosa Maria was in the hospital, male Border Patrol agents followed her every move, sitting next to her in the waiting room, remaining in a nurse’s screening room while her vitals were taken, and even peeking into the operation area while she was awaiting surgery."