Tuesday, September 28, 2010

Ask a Korean! News: Be a Mexican, Lose Your Baby

This is just shocking.
A few days before her daughter Rosa’s first birthday, Monica Castro and the girl’s father had a violent argument in the trailer they all shared near Lubbock, Tex. Ms. Castro fled, leaving her daughter behind.

Ms. Castro, a fourth-generation American citizen, went to the local Border Patrol station. She said she would give the agents there information about the girl’s father, a Mexican in the country illegally, in exchange for help recovering her daughter.

Ms. Castro lived up to her side of the deal. But the federal government ended up deporting little Rosa, an American citizen, along with her father, Omar Gallardo. Ms. Castro would not see her daughter again for three years.

...

The agents themselves have rejected the assertion that they may have acted a little rashly.

Holding Mr. Gallardo and the girl overnight, long enough for an American court to sort things out, would have involved “a tremendous amount of money,” Gregory L. Kurupas, the agent in charge of the Lubbock and Amarillo stations at the time, testified in a 2006 deposition.

Asked to quantify the daunting sum, Agent Kurupas replied, “Well over $200 plus.”
Family Fight, Border Patrol Raid, Baby Deported [New York Times]

The Fifth Circuit court's opinion on this case can be read here. It is actually short (16 pages) and easily understandable; the Korean encourages everyone to read it. In fact, reading the actual opinion reveals another outrageous nugget of fact that the New York Times did not make clear -- the border patrol agents admitted that they knew the baby girl was a U.S. citizen. (See opinion at 14.) The Korean will spare everyone from a discussion on Federal Tort Claims Act jurisprudence, except only to say that (i) Judge Stewart in dissent has it exactly right, and (ii) the least the majority should have done is to do with concurring Judge Dennis did and give an explanation about how the discretionary function exception actually applies.

One of the biggest reasons to oppose harsh immigration laws is that such laws always end up infringing the rights of legal U.S. citizens -- and this is a clear example of such danger. Just one more day would have been enough to sort things out and avoid a separation of three years between a mother and a child. Even the worst criminal in America (who does not even have to be an American citizen!) gets days and days of court proceedings, at the expense of American taxpayers, to make sure his rights are not violated. The rights of a mother, a lawful American citizen who was on the brink of losing her baby, was at stake. The mother did all she could do legally, hiring a lawyer to file for a restraining order within hours. But her rights did not matter. The border patrol knew that the baby girl was an American citizen, but sent her out of America. Her rights did not matter either. Why? Because "we're getting rid of illegals, dey takin' er jerbs!"

When a law (or a particular implementation of a law) deprives of Americans the same rights afforded to a mass murderer, it is time to rethink that law.

Got a question or comment for the Korean? Email away at askakorean@gmail.com.

9 comments:

  1. In this economy, no one's going to care about this... which just adds another dimension to the fucked-up nature of this issue.

    For a party that professes to the strict adherence to the Christian faith, the GOP sure loves to act like they're on that other guy's side.

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  2. I don't think the Korean's analysis is quite right. There are two conflicting rights at stake here. One is the right of a citizen to enter and remain in the country. The other is the right of a parent to the "care, custody, and control" of their child. Both parents have that right--not just mommies (unless there is a court order that states otherwise, no matter how scummy one parent may be). The appropriate question is, "Is it within the Border Patrol's discretion do decide who gets custody of a child when both parents have custody of the child, one is being deported, and the other is not?"

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  3. The appropriate question is, "Is it within the Border Patrol's discretion do decide who gets custody of a child when both parents have custody of the child, one is being deported, and the other is not?"

    The Korean agrees that it is one of the relevant questions. (Other relevant questions include things about the rights of the girl -- e.g. Can the Border Patrol remove a minor U.S. citizen in case the custodian of the minor is being deported?)

    But Judge Stewart in dissent dealt with that question also. "Nor do Border Patrol agents have statutory authority to make child custody decisions." (At p. 14)

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  4. I have to reply again because this is very interesting. Clearly one issue is whether or not the child was forcibly removed by the Border Patrol, or whether she was simply allowed to remain in the father's custody while he was being removed. Certainly it would be beyond the scope of the Border Patrol's authority to remove a US citizen. So lets assume, for the sake of argument, that what the Border Patrol did was (1) remove the father, and (2) allow the father to take his child with him as he was being removed.

    If this was the case, than arguably what the Border Patrol did was refrain from interfering in the custody dispute between the parents. The BP picked up the father, father had physical custody of the child, father decided to keep physical custody of the child rather than turn the child over to anyone else. Mother appears, wanting sole custody of the child, but not having an order granting her sole custody. The BP, absent a custody order, opted to maintain the status quo arrangement, rather than get involved in their dispute over the child. Had they removed the child from the father and given her to the mother, arguably that would have interfered with the father's custodial rights--which the Korean points out is beyond their statutory authority. If the BP does not have statutory authority to make custody determinations, then it follows that they should not remove a child from a custodial parent without a court order or some other authority.

    Now the issue becomes, should the BP have delayed the removal pending the outcome of the family court case in the state court. Well, seems like they should have in this case. But as a general matter, the BP should have discretion to remove someone without having to wait until their custody case is resolved. So then it comes back to, the BP exercised their discretion to remove (albeit badly).

    Imagine the opposite scenerio. Controlling, batterer of a father is a US citizen. He uses the mother's illegal status to control, enslave, and generally beat the crap out of her--placing her life and her child's life in danger. Mother runs away with her newborn, but is discovered and detained by the BP. Father shows up at the detention center and demands custody of his child. Do we still think the BP should hand the child over?

    I'm not saying the Court's conclusion is clearly right, but it's not clearly wrong either. The Court's analysis should have been more thorough. The arguments presented in the NYT assume that (1) mom was the rightful sole custodian of the child, and (2) a US citizen child should always stay with the US citizen parent rather than accompany the non-citizen parent being removed.

    Bottom line is, one parent was going to lose this baby either way.

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  5. It is indeed very interesting. To continue:

    Now the issue becomes, should the BP have delayed the removal pending the outcome of the family court case in the state court.

    Agreed completely.

    But as a general matter, the BP should have discretion to remove someone without having to wait until their custody case is resolved. So then it comes back to, the BP exercised their discretion to remove (albeit badly.)

    Disagreed completely. Why should the BP have discretion to remove someone without having to wait? The BP's authority comes from the statute that delineates their authority. Existing laws already say that such authority does not include custody decisions. And by deciding to deport a U.S. citizen with her father, the BP effectively made the custody decision instead of the state family court. Thus, by deporting a U.S. citizen, the BP abused its discretion.

    Imagine the opposite scenerio. ... Do we still think the BP should hand the child over?

    That's not the relevant question. The relevant question is: "Should the BP wait until the family court decides who has custody of the child before deporting a U.S. citizen?" That answer should always be yes, no matter who the batterer is. And the Fifth Circuit is clearly wrong.

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  6. I'm stuck on the fact that the USCBP knew that the girl was a US Citizen and still detained her in the first place. They clearly overstepped their bounds and violated her constitutional rights in the process.

    I would be rightfully pissed if the CBP, knowing that I was a US Citizen, detained me for any reason.

    I do think the situation is tricky because she was the daughter of an unlawfully present alien who had her in custody, but isn't this a situation where they cooperate with another government body, like Social Services? I mean, what happens when the police have to arrest the custodial parent or guardian of a US child? Are they also taken to jail with the custodial parent/guardian?

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  7. Actually, Korean, "it's be a Mexican and keep your baby" or "be a U.S. citizen and lose your baby to an illegal alien."

    I can't believe how poorly you titled this post.

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  8. John, the Korean is not going to lie -- each time he posts something about immigration, he can't wait to hear what you think about it!

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  9. Was I wrong about the title?

    I guess...in the end...the illegal alien did lose his baby.

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