Former ICE director on immigration battle over ailing girl: 'It's just not right'

Border patrol escorted Rosamaria Hernandez away from hospital after surgery

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SAN ANTONIO – The immigration battle continues over a 10-year-old girl with cerebral palsy.

When 10-year-old Rosamaria Hernandez, who is in the country illegally, went to Corpus Christi for emergency surgery, Border Patrol agents stepped in. She's now in a San Antonio shelter, separated from her family.

Alonzo Peña, the former Immigration and Customs Enforcement agency deputy director under George W. Bush, called the little girl's treatment appalling.

Tears welled up in Peña's eyes as he watched a video of Border Patrol agents escorting Hernandez from Corpus Christi's Driscoll Children's Hospital -- the same hospital where his son died, he said.

Once the video ended, he stared down at the table with his head down. He eventually composed himself, looked up and said, "It's totally unnecessary. (It's) just not necessary to do that. She could have been given a notice to appear. She was just getting out of the hospital having surgery and they're going to put her in a detention facility. It's just not right."

He said even though Hernandez is undocumented, the Border Patrol's presence at the hospital was intrusive and unnecessary.

"It's inexplicable to me that our government would have its agents conduct this action," he said. "Those agents should be out on the line stopping drugs, stopping gang members, protecting national security, not doing this to a 10-year-old girl who has just come out of surgery and has other medical issues."

Hernandez's family members said she has the mental capacity of a 5-year-old. 

"I don't think she understands what actually is going to happen to her -- that she's not going to be able to see her family (and) she's going to be separated from her family (and) lose her freedom." Peña said. 

Hernandez has cousins who are U.S. citizens but she is not being released to them. Instead she was taken from the hospital to a government-licensed shelter in San Antonio.

"It's a status violation. Somebody that's not of status, (who) didn't enter the country and report when they came in -- she's not a criminal. From what I'm understanding, she's being treated almost as a criminal. I cannot even begin to fathom why we would be doing this. There's other remedies. There's other alternatives that we could use. It's just not our country," Peña said.

He confirmed what Border Patrol agents is doing is not illegal, but he called it a bad interpretation of the law.

"Law enforcement agencies have discretion. Yes there's laws, and we have to be a country of laws, but at the same time that's why we have discretion on how we enforce those laws and I feel bad for Border Patrol because their agency's discretion is often motivated by political reasons and that's exactly what's happening today," he said.

He said he worries about repercussions, for both the government and other undocumented immigrants.

"If they treat a little girl like this that's sick, I think it's going to send the wrong message to people that bring information to our government and to law enforcement agencies. What is that going to say to people who witness crimes or have information about crimes? Are they going to want to come report that?" he said. "The same thing for people who are sick and in dire need of care that they can't receive somewhere else." 

A statement from the U.S. Department of Health and Human Services said the following about children apprehended by the U.S. Department of Homeland Security: 

"Children apprehended by the U.S. Department of Homeland Security (DHS) are transferred to the custody of the Office of Refugee Resettlement (ORR) at HHS' Administration for Children and Families. 

"ORR has policies and procedures in place to ensure the care and safety of UAC. These policies require the safe and timely release of UAC to qualified parents, guardians, relatives or other adults, referred to as "sponsors." Safe and timely release must occur within a setting that promotes public safety and ensures that sponsors are able to provide for the physical and mental well-being of UAC.

"ORR facilitates and funds health care for all UAC in its custody. ORR has developed its health care policies with the goals of ensuring the children's physical and mental well-being. Placement takes into consideration any special needs or issues requiring specialized services (for example, a child with language needs, mental health or medical concerns). Whenever possible, ORR places a UAC with special needs in a facility serving the general UAC population but that is able to provide services and treatment for special needs."

About the Author:

Courtney Friedman is a KSAT anchor and reporter. She has an ongoing series called Loving in Fear, confronting Bexar County’s domestic violence epidemic. She's also covered Hurricane Harvey, the shootings in Sutherland Springs and Santa Fe, and tornadoes throughout Texas. She’s a California native and proud Longhorn who loves calling SA home.