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Appeals court to rehear infant deportation case
CHRISTOPHER SHERMAN Associated Press
Tuesday, September 1, 2009
McALLEN — A federal appeals court will rehear the case of a Corpus Christi woman who sued the government after the Border Patrol sent her 1-year-old daughter to Mexico with the baby’s deported father.
Monica Castro’s case has been plodding through the federal court system for more than three years.
Castro did not see her daughter, a U.S. citizen identified in court records only as R.M.G., for three years after the girl was sent to Ciudad Juarez in 2003 along with her father, Omar Gallardo, an illegal immigrant.
She sued for damages in 2006, but in early 2007 the U.S. District Court in Corpus Christi dismissed the case on the grounds that it did not have jurisdiction because Border Patrol agents acted within their discretion.
Castro appealed, and earlier this year a three-judge panel of the New Orleans-based 5th U.S. Circuit Court of Appeals ordered in a split decision that the case be returned to district court. The government then asked the appeals court to reconsider and to have the entire court — 16 or 17 judges — hear the case.
On Friday, the court granted the government’s request for an “en banc” rehearing and scheduled a new round of oral arguments for January. It’s undetermined how many judges there will be in January.
According to information on the appeals court’s Web site, for the 12 months ending June 30, 2007, the 5th Circuit received 160 requests for en banc rehearings and granted only four.
Castro’s lawyers believe they have a strong case that will persuade the expanded panel to send the case back to the district court.
“Border Patrol had no authority to unreasonably detain the U.S. citizen child and make the decision of who should keep the child,” Javier Maldonado, one of Castro’s lawyers, said Tuesday. Acting outside its authority means the agency is not shielded by an argument that the decision was discretionary, Castro’s lawyers have argued.
The U.S. attorney’s office declined to comment.
In late November 2003, Castro moved out of a trailer she shared with Gallardo near Lubbock after a fight. Gallardo wouldn’t give up the child. Two days after Castro left — and after the sheriff’s department, police and state Child Protective Services refused to intervene because there was no allegation that the girl was abused — she reported Gallardo to the Border Patrol.
Gallardo was detained, but Border Patrol agents, after checking with CPS officials, decided that because Castro’s daughter was with Gallardo when he was detained they had no reason to favor Castro’s parental rights over his.
Castro was unable to get a judge to intervene before Gallardo and their daughter were taken to El Paso and released across the Rio Grande to Juarez.
Three years later, Gallardo agreed to return the girl after he was detained for illegally re-entering the U.S.
CHRISTOPHER SHERMAN Associated Press
Tuesday, September 1, 2009
McALLEN — A federal appeals court will rehear the case of a Corpus Christi woman who sued the government after the Border Patrol sent her 1-year-old daughter to Mexico with the baby’s deported father.
Monica Castro’s case has been plodding through the federal court system for more than three years.
Castro did not see her daughter, a U.S. citizen identified in court records only as R.M.G., for three years after the girl was sent to Ciudad Juarez in 2003 along with her father, Omar Gallardo, an illegal immigrant.
She sued for damages in 2006, but in early 2007 the U.S. District Court in Corpus Christi dismissed the case on the grounds that it did not have jurisdiction because Border Patrol agents acted within their discretion.
Castro appealed, and earlier this year a three-judge panel of the New Orleans-based 5th U.S. Circuit Court of Appeals ordered in a split decision that the case be returned to district court. The government then asked the appeals court to reconsider and to have the entire court — 16 or 17 judges — hear the case.
On Friday, the court granted the government’s request for an “en banc” rehearing and scheduled a new round of oral arguments for January. It’s undetermined how many judges there will be in January.
According to information on the appeals court’s Web site, for the 12 months ending June 30, 2007, the 5th Circuit received 160 requests for en banc rehearings and granted only four.
Castro’s lawyers believe they have a strong case that will persuade the expanded panel to send the case back to the district court.
“Border Patrol had no authority to unreasonably detain the U.S. citizen child and make the decision of who should keep the child,” Javier Maldonado, one of Castro’s lawyers, said Tuesday. Acting outside its authority means the agency is not shielded by an argument that the decision was discretionary, Castro’s lawyers have argued.
The U.S. attorney’s office declined to comment.
In late November 2003, Castro moved out of a trailer she shared with Gallardo near Lubbock after a fight. Gallardo wouldn’t give up the child. Two days after Castro left — and after the sheriff’s department, police and state Child Protective Services refused to intervene because there was no allegation that the girl was abused — she reported Gallardo to the Border Patrol.
Gallardo was detained, but Border Patrol agents, after checking with CPS officials, decided that because Castro’s daughter was with Gallardo when he was detained they had no reason to favor Castro’s parental rights over his.
Castro was unable to get a judge to intervene before Gallardo and their daughter were taken to El Paso and released across the Rio Grande to Juarez.
Three years later, Gallardo agreed to return the girl after he was detained for illegally re-entering the U.S.
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