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Immigration Law

Edward Alden on DHS' Big Lie - Arresting and Deporting Rosa Maria Hernandez

Edward Alden, Oct. 27, 2017 - "President Donald Trump’s flexibility with facts is so often on display that it can become exhausting just trying to correct all the misinformation coming out of his administration. But I have a nominee for the biggest lie to date.

It was told to National Public Radio by the spokesman for Customs & Border Protection (CBP), an arm of the Department of Homeland Security, following the arrest this week of 10-year-old Rosa Maria Hernandez, who suffers from cerebral palsy and was stopped at a Border Patrol checkpoint in Texas on her way to receive emergency gallbladder surgery. Following the operation, Rosa was taken from her parents and placed in detention awaiting removal to Mexico, where she has not lived since she was three months old.

Questioned why the agency would carry out such a cruel arrest of a vulnerable girl, the CBP spokesman, Dan Hetlage, said the following: "The agent is wrong if he lets her go. We don't have the discretion. It's not a traffic ticket. We follow the letter of the law.” He added, by way of trying to apologize for this apparent helplessness: "It's frustrating for us. I'm a human being. The agents are trying to do their job as humanely as possible."

Explaining the outrageousness of this lie requires a little background. One of the Trump administration’s first actions upon taking office—under then DHS Secretary (now White House chief of staff) General John Kelly—was to rewrite the guidelines for the arrest and removal of unauthorized migrants in the country. Under guidelines issued by the Obama administration in 2014—the so-called “Morton memos” after then director of Immigration and Customs Enforcement (ICE) John Morton—the administration had directed agents to prioritize removal of national security threats, serious criminals, and recent border crossers. Those rules angered and frustrated many immigration agents, both Border Patrol and ICE, who felt they were too often forced to release unauthorized migrants who did not fit one of the “priority” categories. The unions representing agents in both the Border Patrol and ICE were early supporters of candidate Trump and his promised hard line on immigration enforcement.

The new Trump guidelines, therefore, sought to give greater discretion to the agents themselves. It laid out a broader group of aliens who would be “priorities” for removal, including those who had engaged in fraud or willful misrepresentation to the government, or had abused public benefits. The Trump administration further clarified that agents would have “have full authority to arrest or apprehend an alien whom an immigration officer has probable cause to believe is in violation of the immigration laws.”

But the Trump guidelines are also quite specific that agents have the authority not to seek removal of those they encounter, and to exercise “prosecutorial discretion” on a case-by-case basis. The memo even spells out the procedures for allowing an unlawful migrant to avoid removal, requiring consultation with senior CBP or ICE officials.

Now consider the facts of this case. Rosa Maria’s parents, both undocumented according to press reports, live in Laredo, Texas. According to the Associated Press, her parents brought her there from Nuevo Laredo, Mexico when she was an infant, in part to seek better medical treatment for her cerebral palsy. On the night of October 24, she was taken in an ambulance from Laredo to the children’s hospital in Corpus Christi, accompanied by her cousin, who is a U.S. citizen. The ambulance was pulled over at one of the Border Patrol checkpoints that are present on every highway near the Mexican border, where agents determined that Rosa had no legal status in the country.

They then followed her to the hospital and stood guard outside her hospital room following the operation. When she was released from hospital, the doctors strongly recommended that she be returned to her family in Laredo. Instead, she has been taken to a children’s detention facility in San Antonio, which is used to house children who have crossed the border on their own, mostly from Central America. CBP now says that she will now be “processed accordingly…. per the immigration laws of the United States.” The deportation proceedings could take anywhere from two weeks to three months.

In fact, the immigration laws of the United States—as interpreted by the Trump administration—show quite clearly that the government should never have done any of this. The CBP spokesman's claim that agents “don’t have the discretion” to avoid removal in a case like this is a flat-out lie. Not only do they have the discretion, but the Trump administration guidelines actively empower agents to use that discretion on a case-by-case basis. If ever there were a case where such discretion should be exercised, this is it.

If Rosa Maria Hernandez does not warrant the discretion of CBP to be spared from deportation and reunited with her parents, then it truly has become hunting season on every unauthorized migrant in the country."

Edward Alden is the Bernard L. Schwartz senior fellow at the Council on Foreign Relations (CFR), specializing in U.S. economic competitiveness. He is the author of the new book Failure to Adjust: How Americans Got Left Behind in the Global Economy, which focuses on the federal government’s failure to respond effectively to competitive challenges on issues such as trade, currency, worker retraining programs, education, and infrastructure. In addition, Alden is the director of the CFR Renewing America publication series and coauthor of a recent CFR Discussion Paper “A Winning Trade Policy for the United States.”