Monica Castro had a violent argument with her husband, an illegal alien, a few days before their daughter Rosa’s first birthday. The family lived in a mobile home near Lubbock, TX. Monica left her daughter and the home to report the illegal status of her husband, Omar Gallardo, to the local Border Patrol office. She claims to have offered the information concerning the legal status of her husband in exchange for custody of her daughter.
Besides being an illegal, Gallardo was wanted for questioning as a witness to a murder.
On the morning of December 3, 2003, Federal Agents raided the mobile home and seized Gallardo. Gallardo refused to surrender his daughter: the Border Patrol told Ms Castro she had until that afternoon to get a court order to get custody of her daughter.
A lawyer made an appearance in court to plead for more time.
Unfortunately, there was no court order when the government van showed up at 3 p.m., government agents then drove Gallardo and his daughter to the border.
Monica, sued the federal government, asserting that the Border Patrol had no authority to detain or deport her daughter Rosa. he also maintained that the Border Patrol had made themselves family-court judges by making de-facto custody decisions.
The US Court of Appeals for the Fifth Circuit, New Orleans, has rejected Ms Castro’s arguments, over the dissent of three judges.
The decision, in summary, stated that the appeals court did not:
“condone the Border Patrol’s actions or the choices it made.”
However, the court reasoned:
Gallardo had his daughter, R.M.G., with him when he was arrested. By permitting Gallardo to keep R.M.G. with him, the Border Patrol agents did not improperly make a custody determination; rather, they left the status quo in place and refrained from making a custody determination, in that they declined to take R.M.G. away from Gallardo against his will. The Border Patrol agents cannot be meaningfully said to have “detained” or “deported” R.M.G., because it was Gallardo, and not the Border Patrol, who decided that the baby should go with him to Mexico. Monica Castro, R.M.G.’s mother, disagreed with Gallardo’s decision and wanted the Border Patrol to transfer the baby to her, but she lacked a court order or any other source of legal authority requiring the Border Patrol to take such action. The Border Patrol, by accepting Gallardo’s decision to keep R.M.G. with him, did not violate any constitutional or statutory requirement that the plaintiffs have identified.
Monica and Rosa were reunited three years after her husband’s deportation.
Ms Castro’s lawyers have asked the United Supreme Court to hear the case. They maintain the Border Patro Agents should have kept Gallardo overnight, to better resolve the case, the Border Patrol Agents maintained they didn’t want to incur the over $200 dollar expense for Keeping Gallardo overnight. According to Gregory Krrupas, the agent in charge of the Lubbock and Amarillo stations during this period, as stated in a 2006 deposition.
The government offered no assistance in reuniting the mother and daughter, other than identifying the city that the pair was delivered to, Juarez. Now described as the most dangerous city in the world by Susan L. Watson, one of Ms Castro’s lawyers.
Gallardo, a caballero of distinction, was arrested again for entering the country illegally and in a plea bargain, he agreed to return his daughter Rosa to her mother. He was subsequently deported again.
The mother and daughter were reunited at the US Consulate in Ciudad Juarez in 2006. The reunion was tragic, since the child did not recognize her mother and only wanted to be with her paternal grandmother and other Mexican relatives.
Rosa is doing well now, according to her mother she is an honor roll student, with a straight A average in the second grade.
There are numerous implications and tangents in this case. What are the responsibilities of an American Citizen providing care and sustenance to an illegal alien, marrying or living common-law with an illegal alien?
Why did she leave her baby with an illegal alien who was involved in a murder?
Why did the Border Patrol deport an illegal alien wanted for questioning in a murder, when he had a baby with him?
Will the child be considered an American when the sperm donor was an illegal alien?
This is an interesting case that may serve America well if it is argued competently to the Supreme Court. There are many points of illegal Immigration that need to be defined.