Border Patrol officials say they had no choice but to detain 10-year-old girl; immigration experts say they have discretion

LAREDO — Josefina Peña says her detention by the Border Patrol after undergoing surgery mirrors that of a 10-year-old girl with cerebral palsy whose case has garnered national attention.

Peña, 60, who’s from Mexico but lives in Laredo, said agents detained her after she left a San Antonio hospital. Rosa Maria Hernandez, who’s also from Mexico, spent 10 days in government custody in San Antonio and was unexpectedly released Friday and returned to her family in Laredo. Agents detained her after the girl underwent surgery in a Corpus Christi hospital.

Both had to cross through immigration checkpoints north of Laredo to get medical treatment, and immigration authorities are now trying to deport them.

Rosa Maria’s case brought intense scrutiny of the discretion that agents have at immigration checkpoints north of the border. Border Patrol officials have said they had no choice but to enforce immigration laws, but immigration experts say law enforcement officials are granted wide leeway under a concept known as “prosecutorial discretion” that allows them to decide how they want to allocate resources.

Peña’s lawyer, Ricardo De Anda, said similar issues are at play in his client’s case.

“If they don’t have discretion to let somebody like Josefina through, or Rosa Maria, if they don’t have the discretion to allow for the safe passage of someone in an emergency situation, then all bets are off,” De Anda said. “It’s absolutely open season … on anybody who lives on this side (south) of the checkpoint. If they don’t think you’re an American citizen, you’re going to get thrown in jail. Even if you’re suffering from a medical condition, even if you’re disabled and even if you’re a child.”

Peña’s case differs from that of Rosa Maria, who was brought to the U.S. when she was 3 months old and is in the country illegally, because Peña believes she’s a U.S. citizen. Her mother was born in Harlingen and several years ago her brother was able to get a certificate of citizenship based on their mother’s birth in the U.S.

When Peña was being taken to San Antonio in April after suffering a heart attack, however, she had no documentation. In a hearing later this month before a San Antonio immigration judge, her lawyer will argue that Peña is a citizen.

The Border Patrol allowed Peña, who was scheduled for surgery to have a stent inserted, to pass through the checkpoint on Interstate 35 north of Laredo but followed her to San Antonio. An agent stayed in her room, questioned her about the procedure and wouldn’t let her daughter, who has a visa, visit with her, Peña said.

After being released from the hospital, she was kept overnight, without her family being notified, in a holding cell in a Laredo building where federal agencies have their local offices, she said. The next day, she was taken to a private immigration detention center where medical staff ordered her immediately released because of her poor health. Peña, 60, said she ended up spending five more days in a hospital here recovering.

“It was so cold I felt it in my bones. All night I was awake; I couldn’t sleep,” Peña said of her stay in the holding cell. “They said they were going to detain me for six months. I said, ‘No, I’m going to die here.’”

Like Peña, Rosa Maria was permitted to go through a checkpoint, this one on U.S. 59 about 40 miles northeast of Laredo, on her way to gallbladder surgery in Corpus Christi. Her parents, who don’t have papers either, stayed in Laredo and a U.S. citizen cousin accompanied her to the hospital.

Border Patrol agents followed her to Corpus Christi, kept her under surveillance at the hospital and when she was released turned her over to the Department of Health and Human Services.

Border Patrol officials and members of the union representing agents insist they had no choice but to keep Rosa Maria under surveillance and take her into custody once they discovered she was in the country illegally.

Immigration experts, however, say agents have the latitude to exercise discretion, the same way a state trooper might ignore someone speeding to look for a reported drunken driver or a Drug Enforcement Administration agent might focus on large-scale narcotics distributors rather than street-level dealers. The Supreme Court has recognized police officers’ right to prosecutorial discretion, experts said. It is used every day at immigration checkpoints like the ones where Rosa Maria and Peña were stopped when agents release suspected human smugglers and drug traffickers whose crimes don’t meet thresholds set by the U.S. attorney’s office.

“My position is that the Department of Homeland Security in this case had the discretion to not arrest and detain this young girl,” said Shoba Sivaprasad Wadhia, director of the Center for Immigrant’s Rights Clinic at the Penn State University Law School and author of “Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases.” “We don’t prosecute every person in the criminal justice system who fishes without a license. Why? We have bigger fish to fry.”

Smugglers whose crimes aren’t deemed significant enough for federal prosecution are often cut loose, said Chris Cabrera, an agent in the Rio Grande Valley and spokesman for the National Border Patrol Council, the union representing Border Patrol agents. For human smugglers, that can mean someone caught transporting fewer than five immigrants will be released without charge, depending on the U.S. attorney’s office determinations. Drug smugglers with less than 500 pounds of pot might be let go. Even immigrants who assault agents sometimes aren’t charged if prosecutors don’t think the injury is significant enough, Cabrera said.

But he notes that those decisions are made by the U.S. attorney’s office, and Border Patrol agents will call the Texas Department of Public Safety or local law enforcement and ask them to take cases rejected for federal prosecution. Agents on the line don’t have the authority to make those decisions, he said.

“It’s kind of a double standard,” Cabrera said. Prosecutors “can refuse it, but we can’t. We’re bound by these laws, so we do what we’re supposed to do only for somebody else to drop the ball.”

In a statement, the Houston-based U.S. Attorney’s Office for the Southern District of Texas, which includes Laredo, pointed out it carries one of the busiest caseloads in the country and considers “the evidence, circumstances surrounding the alleged crimes and, of course, what can be proven beyond a reasonable doubt in a court of law” before accepting a case for prosecution.

“Every office and/or agency may have its limitations, but the (Southern District) has and will continue to work with our law enforcement partners and use all available resources to ensure the continued safety of the community and that the most egregious criminals are taken off the streets,” the statement reads.

Border Patrol officials wouldn’t respond to questions for this report but released a statement saying that once agents took Rosa Maria into custody they could release her only to a guardian or HHS. In an interview about Rosa Maria’s case last week, Assistant Chief Patrol Agent Gabriel Acosta said once agents found out the girl was in the U.S. illegally “we had to process her accordingly and essentially take her into our custody.”

“We’re not keeping them from getting medical attention and we’re not even delaying them from getting medical care, but they’re in country illegally — now we have to keep tabs on them,” Cabrera said. “If people have problems with that, their beef isn’t with Border Patrol, it’s higher up, at the congressional level. We can’t pick and choose which laws we want to enforce on a daily basis.”

However law enforcement officials said police departments do just that. Fred Garza, deputy chief for the Webb County Sheriff’s Office, said narcotics detectives regularly field calls from the Border Patrol asking them to take drug cases that the U.S. attorney’s office has rejected for prosecution. Garza said his department responds as often as it can, but the narcotics unit doesn’t always have the resources to investigate the cases.

“We try to make most of those cases,” he said. “To start with, our personnel might be busy working another case. Another narcotics case. We don’t want to just go out and seize the drugs. We want to make sure we have the right personnel to be able to follow up and investigate the case and be able to charge it.”

“If DEA was bringing in everyone they saw smoking a joint … or Secret Service was prosecuting everyone with a counterfeit $20 bill, Congress would go crazy about the misuse of resources,” said Alonzo Peña, former deputy director of U.S. Immigration and Customs Enforcement. “But here Border Patrol can say they’re required by law to do this to a 10-year-old girl who’s coming in for medical care, and they’re going to dedicate all these resources to that?”

Wadhia noted that then-Homeland Security Secretary John Kelly’s February immigration enforcement memo, which along with President Donald Trump’s January executive orders on immigration eliminated Obama-era guidelines that specifically outlined who should be targeted for deportation, allows immigration officers to use discretion. The memo directs them to focus on criminals and threats to national security and says they can exercise prosecutorial discretion “on a case-by-case basis in consultation with the head of the field office component, where appropriate.”

“This idea that any line officer, or even (someone) from the top, has the authority to use discretion and to use it in a way that is aimed at high priorities for (deportation) and placing low priorities on the back burner, that is as American as apple pie,” Wadhia said. “It’s been part of the immigration system for as long as its existed.”

Cabrera, the agent from the Valley and union spokesman, said agents don’t necessarily want to follow a special-needs child to the hospital, but he feels like they didn’t have a choice. In a statement Thursday, the union said agents didn’t know Rosa Maria has cerebral palsy.