I saw this NY Times article today and was horrified. The gist of the article is that a woman (4th generation U.S. Citizen btw) went and talked to border patrol about getting her baby daddy deported after they had a fight. The baby daddy was wanted in connection with a murder. In exchange for information on him, she wanted border patrol to return her baby (a 5th generation U.S. citizen), which baby daddy was apparently keeping from her. Border patrol thought this sounded like a good idea and agreed to help her.

Border patrol took the information she gave them, went and got the guy, renneged on the deal, and deported the baby b/c it would have cost too much to keep the kid 24 hours so that mom could get the proper court order. How much is too much to keep the border patrol from deporting an US Citizen? Apparently $200.00.

Mom found out they sent the kid to Juarez, Mexico but wouldn't tell her more than that. Juarez isn't the safest city in the world. This article from the El Paso times puts the death toll for this year at 2,000 people. The violence is so bad that the turn out for Mexico's Independence Day was bigger in El Paso than it was in Juarez. And border patrol sent her there with someone involved in a murder case, against the Mother's wishes.

So, when Mom got her baby returned to her she sued border patrol. And the court denied her case. They dismissed her motion under a federal rule that says the court doesn't have any power to hear cases like the one mom filed. That rule is 12(b)(1). Mom appealed to the 5th Circuit Court of Appeals. They sided with the trial court and found for border patrol.

But three judges on the panel of 17 judges dissented. They said the court misunderstood the case law in this case. They say the court does have the power to hear this case. The federal government isn't immune from lawsuits when it does something as spectacularly wrong as deporting a US Citizen. They say it was a violation of both fourth and fifth amendment rights of the child. The dissenters said that it was an abuse of power to deport a U.S. Citizen.

One dissenting judge says technically the child wasn't deported b/c she went with dad, but border patrol may have violated some other right of the child and for that reason the court had the power to hear the case. I disagree with him b/c dad did not have the power to take the child to Mexico without mom's permission. You can read all about it at the State Department's website. It's in this section here. So, if Dad didn't have the legal power to take the child to Mexico, and mom objected to the child going to Mexico, that leaves only the border patrol imposing their decision on a US citizen.

The opinion is here.

But that's not the worst part of this. The worst thing about this case is that if the Supreme Court rules for border patrol, it will limit our recourse if border patrol deports us. Border Patrol can go around deporting any US citizen it wants to and no one can do anything about it b/c their lawsuit will be dismissed. This was actually a problem during the Chinese exclusion era. The government would hold people in jail or deny them entry to the U.S. and nothing could be done about it. Some of these cases were used as justification for Guantanamo by Bush.

I think the SCOTUS might actually rule for border patrol too. The court's history of protecting minority rights comes and goes. The court's history of protecting immigrant rights, or even treating them like human beings, is terrible. Just read the Chinese exclusion cases.

The court also likes to strengthen sovereign immunity (a legal doctrine that says the sovereign, i.e. the government, can't be sued) whenever they can. If they rule that way they'll try and say the facts in this case are so peculiar that it probably won't apply more broadly than in this instant case. The problem is once there is a case in existence, there is always the opportunity to expand the powers created under that case or limit your rights to challenge government's violation of your rights. That's where it gets dangerous. If there are three or four outlying cases like this, pretty soon you have a new legal doctrine.

Another problem is that they'd be wrong about the likelihood of this happening again. Anyone familiar with the family court system knows that there are a large number of families with mixed immigration status. There are frequent attempts to get the non citizen parent deported. If that parent could just choose to take the kid with them it would cause all sorts of problems. International parent abduction is already a big problem with no real solutions. If the court lets ICE or border patrol off the hook here, they're only inviting the problem to get worse.