On February 20, 2009, the U.S. Court of Appeals for the Fifth Circuit in Texas reversed a district court decision (No. 07-40416). (
If Monica Castro, a U.S. citizen, can show that the Border Patrol Agents who deported her daughter, also a U.S. citizen, in violation of the Constitution and the law authorizing immigration enforcement duties, then Castro and her daughter should be compensated as mandated by the Federal Tort Claims Act. (For an article on the case background, see here; also, you can download the original complaint from 2006 as well as the appellant brief and appellant reply brief from 2007.)
In a case clouded by stereotypes and a typical government defense of haplessness, the Court majority cut to the heart of the legal question at stake: the Border Patrol, regardless of its sweeping powers over aliens, does not have jurisdiction over U.S. citizens. The majority writes: "here, the Agents concede they knew R.M.G. [the child] was a U.S. citizen" (p. 18), and hence they may be sued for acting outside the scope of their authority.
This decision cites a number of precedents on the relevance of the FTCA to the abuses of U.S. citizens by agencies in the Department of Homeland Security that apply to fact patterns in many other cases similar to this one, several of which I have described here (see esp. tags for David and NationArticleFacts). Indeed, the only unusual fact here is the custody dispute between the noncitizen father, who had R.M.G. in his custody when he was deported, though Monica Castro was also present and had alerted the Border Patrol to her daughter's U.S. citizenship and Castro's claim for custody.
In other words, in many other cases DHS agents have clear evidence of U.S. citizenship without distracting custody disputes, which should make suing the government even easier in those instances.
As I've mentioned before, this model of using the FTCA to curb government abuses is a third-best option. It does not punish the individual agents and it does not attack the roots of the border's absurdity and the resulting prejudices. The charges of false imprisonment and, essentially kidnapping, at the heart of Castro's suit deserve the attention of U.S. Attorney Generals. Once the agents realize the results of their abuses could be prison time, and not just an increased tax burden for the rest of us, then they might show more judgment and restraint.
And even this is the second-best option. The wisest policy for ending the border crimes of noncitizens and DHS agents alike would be to allow free movement.
The image above is from the Caller-Times.