(CN) – The full 5th Circuit overturned a panel decision allowing a Texas woman to sue the U.S. Border Patrol for deporting her infant daughter, a U.S. citizen.
Monica Castro was 17 when she had a baby girl with Omar Gallardo, a Mexican citizen who was in the United States illegally.
After the couple had an argument, Castro reported Gallardo to immigration authorities. The Border Patrol rounded up Gallardo and his family, including the daughter. Castro failed to get a temporary custody order in time, and her daughter was deported with Gallardo.
Three years later, Gallardo was picked up for allegedly trying to reenter the country illegally. While in custody, he agreed to return their daughter to Castro.
Castro, on behalf of herself and her daughter, sued for negligence, false imprisonment and infliction of emotional distress.
A federal judge dismissed her claims, but a three-judge panel of the 5th Circuit in New Orleans reversed, ruling that Castro’s federal tort claims could proceed.
The government had argued that the lower court lacked jurisdiction over Castro’s claims, because they are barred by a discretionary function exception to the Federal Tort Claims Act.
The 5th Circuit voted to rehear the case before a larger panel of judges. A majority backed the lower court’s “comprehensive and convincing” dismissal order, concluding that the government is shielded by the discretionary function exception.
Judge James Dennis partially disagreed, saying Castro’s abuse-of-process and assault claims should have been reinstated and remanded.
Judge Carl Stewart said he thought the case should have been reinstated and remanded “for an evaluation of whether the Border Patrol acted outside its authority.”
He was joined in dissent by Judge Harold DeMoss Jr.
“If the Border Patrol agents exceeded the scope of their authority, the discretionary function exception would not apply and Monica Castro’s tort claims would not be barred by sovereign immunity,” DeMoss wrote in a separate dissent.
“But, even if the Border Patrol agents acted within the scope of their authority and the discretionary function exception applied, Castro’s claims for false imprisonment, abuse of process, and assault would not be barred by sovereign immunity.”