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'Not Only Unconstitutional, But Heartless': ACLU Lawsuit Demands Freedom for 10-Year-Old With Cerebral Palsy

Rosa Maria Hernandez was arrested after an emergency surgery in Texas. Defying doctor's orders, the government refuses to release her to family.

Rosa Maria Hernandez,

Federal agents followed 10-year-old Rosa Maria Hernandez, who has cerebral palsy and is undocumented, to a Texas chlidren's hospital, where she had emergency surgery before being taken into federal custody. (Photo: Washington Post/Courtesy of Austina Arroyo)

The ACLU has filed a lawsuit against the federal government for refusing to release 10-year-old Rosa Maria Hernandez—who has cerebral palsy and is recovering from surgery—to her family, in defiance of her doctor's recommendations. Outrage over her case has made national headlines and produced a viral social media campaign featuring the hashtag #FreeRosa.

"All of us should be outraged and alarmed that the federal government would chase a 10-year-old girl with cerebral palsy to a hospital, arrest her after surgery, and rip her from her loving home."
—Andre Segura, ACLU of Texas

"The government's actions are unlawful, cruel, and threaten to keep parents with sick children from seeking care," said Michael Tan, staff attorney with the ACLU's Immigrants' Rights Project. "It is also unconstitutional to deprive a child of the love and care her parents have provided her entire life."

Hernandez, who is undocumented, was being transported by ambulance from Laredo, Texas to a children's hospital 150 miles away for emergency gallbladder surgery when the vehicle was stopped by federal agents. After the girl's adult cousin, who is a U.S. citizen, produced her own papers but was not able to provide proof of citizenship for Hernandez, agents accompanied them to the hospital.

Following Hernandez's surgery, Customs and Border Protection arrested the child in her hospital bed, as soon as she was discharged, and transferred her into the custody of the Office of Refugee Resettlement (ORR) as an "unaccompanied minor," despite the fact that her parents, who are also undocumented, reside in the United States, and she has several family members who are U.S. citizens.

Hernandez is being held in government custody, 150 miles away from her home. According to the ACLU and several reports, she "has never been separated from her parents, and her medical condition requires constant attention; she is completely dependent on her mother."

"It is unconscionable to target a little girl in a children’s hospital," said Tan. "Hospitals are considered sensitive locations under Homeland Security's own policy, and Border Patrol should not be arresting people there—especially children."

The ACLU claims in the lawsuit, filed Tuesday, that the government is violating several laws, as outlined in a blog post on the organization's website:

  • Border Patrol had no authority to put Rosa Maria into the custody of the Office of Refugee Resettlement, which has no authority to detain her.
  • Border Patrol made an illegal, warrantless arrest.
  • Border Patrol's action discriminate based on disability.
  • ORR is violating federal protections for minors.
  • Rosa Maria and her family have due process rights and ORR is violating them.

"All of us should be outraged and alarmed that the federal government would chase a 10-year-old girl with cerebral palsy to a hospital, arrest her after surgery, and rip her from her loving home," said Andre Segura, legal director of the ACLU of Texas. "This is not only unconstitutional, but heartless."

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