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Genesee Valley Chapter — Border Patrol’s Authority Is Not Unlimited

Border Patrol’s Authority Is Not Unlimited

By Scott Forsyth A version of this article appeared in the ‘Daily Record’ on December 22, 2010. Sometimes doing right causes a person a heap of harm, courtesy of the government. To compound the harm, the person may be without legal redress. Take the example of Monica Castro, a fourth-generation American citizen living in Texas. Her live-in boyfriend, Omar, was an “illegal alien” and wanted for questioning as a witness to a murder. He was also the father of her one-year-old daughter, Rosa. Omar threatened Monica with violence. Instead of calling the police, she visited the local station of the border patrol. She told the agents the whereabouts of Omar and sought their help in recovering Rosa. They said that they would assist her. She informed them that Rosa was a U.S. citizen. Two days later, the agents raided Monica’s house and found Omar. They hustled him into a van to be driven that afternoon to Mexico. Since he had physical custody of Rosa, they let him keep her initially. They told Monica that she had until 3 p.m. to obtain a court order granting her custody. Otherwise Rosa would follow her father to Mexico. Monica did not get the order on time and Rosa disappeared into Mexico. Three years later, Omar was arrested again in the United States. As part of a plea bargain, he turned over Rosa, who had been living with Omar’s relatives in Mexico. When mother and daughter were finally reunited, Rosa did not recognize her mother and did not want to leave her other relatives. In 2006 Monica sued the United States, alleging its negligence caused the wrongful deportation of Rosa, a U.S. citizen. She also alleged that the government violated Rosa’s rights under the Fourth and Fifth Amendments. Surprisingly, the case has followed a tortured path on the issue of sovereign immunity. As a sovereign, the United States is immune from tort claims. Long ago it waived this immunity by statute, to allow suits against it “for torts committed by its employees in circumstances where, if the government were a private person, the government would be liable under state law,” Martin v. Halliburton, 601 F.3d 381, 390-91 (Fifth Cir. 2010). As to be expected, the statute contains exceptions to the waiver and exceptions to the exceptions. Three courts have battled over whether the actions of the patrol agents were “based upon the exercise or performance … of a discretionary function,” one of the exceptions to the waiver. This exception exists to prevent judicial second-guessing of legislative and administrative decisions grounded in policy and involving the allocation of public resources. What was policy or resource driven about the agents’ decision to rush Rosa off to Mexico? According to the agent in charge, they could not give Monica an additional day to obtain the order, because holding Omar overnight would cost the government “well over $200 plus.” To one concurring judge, the agents could not determine custody. Since Omar had physical custody of Rosa, they had to honor his wishes to take Rosa with him. That way they preserved the “status quo.” To the majority, the agents engaged in a “policy analysis” “as to what [they] should do with a United States citizen child in the unique circumstances presented.” The majority gave no further explanation and dismissed the lawsuit, Castro v. United States, 608 F.3d 266 (Fifth Cir. 2010) The dissenting judges rightly pointed out that the discretionary function exception does not protect actions that violate a person’s constitutional rights or are proscribed by statute, behavior that is outside an official’s authority, see Limone v. United States, 579 F.3d 79, 101 (First Cir. 2009). Monica claimed both. The border patrol is an agency of the Department of Homeland Security and subject to the Immigration and Nationality Act. The INA regulates only the entry, detention, and removal of aliens. Nothing within the INA or any other statute gives the border patrol the power to deport citizens. It has very limited power to detain citizens. The dissenting judges would have sent the case back to the trial court for it to determine whether the agents acted outside the scope of their authority. If they did, Monica’s case could proceed. In August, Monica asked the U.S. Supreme Court to hear her case. It has not ruled on her request. If it declines, we are left with a decision that effectively grants the border patrol what Congress has not — the power to detain and remove citizens.

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