By ADAM LIPTAK
The New York Times
September 20, 2010
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.
On the morning of Dec. 3, 2003, agents raided the trailer and seized Mr. Gallardo, who was wanted for questioning as a witness to a murder. They also took Rosa. Then they told Ms. Castro she had until that afternoon to get a court order if she wanted to keep her daughter.
A frantic lawyer rushed to court, and she called to plead for more time. But there was no court order yet when the government van arrived around 3 p.m., and agents hustled father and daughter into it for the long ride to the border.
Ms. Castro later sued the government, saying the agents had no legal authority to detain, much less deport, her daughter. Nor should Border Patrol agents, she said, take the place of family-court judges in making custody decisions.
The last court to rule in the case, the full United States Court of Appeals for the Fifth Circuit, in New Orleans, rejected Ms. Castro’s arguments, over the dissents of three judges.
The brief unsigned majority decision, echoing that of the trial judge, said the appeals court did not “condone the Border Patrol’s actions or the choices it made.” But, the decision went on, Ms. Castro could not sue the government because the agents had been entitled to use their discretion in the matter.
Ms. Castro’s lawyers last month asked the United States Supreme Court to hear the case, in a petition bristling with restrained incredulity.
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.”
The American government gave Ms. Castro no help in finding Rosa beyond identifying the city in Mexico to which she had been delivered. That news did not comfort Ms. Castro.
“She was sent to Juárez, which is now the most dangerous city on the face of the planet,” said Susan L. Watson, one of Ms. Castro’s lawyers.
Mr. Gallardo was in time again arrested for entering the United States illegally. As part of his plea arrangement, he agreed to return Rosa, who had lived with his relatives in Mexico. He was once again deported, and my efforts to find him were unsuccessful.
The mother and child reunion, at the United States Consulate in Ciudad Juárez in 2006, was rocky. Rosa, then 4, did not recognize her mother and did not want to leave her other relatives.
“She was crying,” Ms. Castro recalled. “I started talking to her in Spanish, and she started yelling. She would hit me with her doll. She kicked me. She didn’t want anything to do with me. She wanted to be with her grandmother.”
Like the appeals court, the trial judge, Janis Graham Jack of Federal District Court in Corpus Christi, expressed some uneasiness about the case. Judge Jack said the agents might not have chosen “the optimal course of action.”
Judge Jerry E. Smith of the Fifth Circuit, who was in dissent when a three-judge panel of the court first heard the case and in the majority when the full court revisited it, agreed that the situation was not a happy one.
“No one is pleased,” Judge Smith wrote in his dissent, “that Castro did not see her daughter for three years.”
Things are much better these days, Ms. Castro said. Rosa is a happy, thriving 7-year-old in Corpus Christi. “She’s a straight-A honor roll student, in second grade now,” Ms. Castro said.
Ms. Castro added that the Supreme Court “should do something about the Border Patrol,” and perhaps the court will. The patrol did, after all, send an American infant to Ciudad Juárez with a man mixed up in a murder to save a couple of hundred dollars.
Or perhaps Ms. Castro will have to make do with the muted murmurs of sympathy she has received from judges who have heard her case so far. They do not condone what happened, are not pleased by it and, if pressed, are willing to say that the entire affair was “not optimal.”
http://www.nytimes.com/2010/09/21/us/21bar.html?_r=2&hpw
