A federal judge has ordered the U.S. government to release a Billings father and child from a facility in Havre and described their detainment as “disturbing.”
U.S. Customs and Border Patrol arrested Adrián Espinoza De La Cruz and his 9-year-old child on Aug. 11 without a warrant and detained them at the Havre Border Patrol Station.
In a court filing on Tuesday, Upper Seven Law, representing De La Cruz and his child, said arresting the father and child was unlawful and called for their immediate release.
The U.S. Attorney’s Office acknowledged on Wednesday the arrest took place without a warrant. But the lawyers said the parent and minor are in the United States without legal permission, and the government did issue a warrant after the arrest.
In a decision late Wednesday, U.S. District Court of Montana Judge Brian Morris ordered the release of Espinoza De La Cruz and the child within 24 hours citing the violation of their constitutional rights.
“The court finds this case particularly disturbing considering the government’s lack of regard for the rights of a father and minor child,” the order said.
Citing another case, the order said the government does not have “free-ranging ability to arrest and detain people, and figure out the reasons later, like they apparently did here.”
The judge said nothing in the record shows the parent and child have any criminal history or any earlier encounters with law enforcement or immigration authorities.
The judge also noted the child’s special medical needs for a gastrointestinal issue and raised concerns about the conditions the parent and child face at the facility in Havre.
“The court has been informed that De La Cruz and (the child) are being held in a family holding room but remains concerned about the alleged lack of proper bedding and basic amenities typically found in long-term detention facilities which the Havre Border Patrol Station lacks,” the order said.
Attorneys for the plaintiffs said they tried to negotiate relief with the U.S. government before filing for their release in court, but officials refused.
A spokesperson for the U.S. Attorney’s Office earlier told the Daily Montanan it does not typically comment on pending litigation.
Upper Seven filed the petition against acting U.S. Attorney General Todd Blanche; Immigration and Customs Enforcement officials, including Utah Field Office Director Michael Bernacke; and Havre Chief Patrol Agent Zachary Crosson with CBP.
The Daily Montanan did not receive responses to questions asked Wednesday to ICE, CBP and the U.S. Department of Homeland Security, or Crosson at the Havre station, about the conditions under which the child was being held.
In the order, the judge said the legal way to arrest noncitizens under the relevant statute is to issue a warrant in advance or determine they are violating the law being in the country and also are a flight risk.
He said “unadmitted noncitizens” in the interior of the country can be detained but not automatically; a bond hearing must be held to determine if they are at risk of escape or a danger to the community.
“The government’s recent practice of subjecting such people to mandatory custody … proves unlawful,” the order said.
In this case, the judge said, nothing in the record shows the government met the lawful conditions to detain the father and child, and the government’s assertion the law offers flexibility on the timing of warrants is incorrect.
The judge said the government’s interest is “legitimate,” but it is outweighed by the liberty interests of Espinoza De La Cruz and his child.
The judge disagreed with the government’s argument the plaintiffs must first seek administrative relief. That’s because the process was deficient from the start, he said, and the court already reprimanded the government for a similar problem with the warrantless arrest of Jesus Verde Hernandez of Yellowstone County.
The father and child are part of a possible class-action case with Hernandez, also released after being detained unlawfully and represented by Upper Seven Law. In the case, the lawyers argue 17 people are being illegally detained in Cascade County jail, and others in Montana are in a similar situation.
A hearing is set for Sept. 4, but Upper Seven filed the separate petition to release Espinoza De La Cruz and his child because of the “exceptional circumstances” of a minor being incarcerated in a temporary facility. The petition said minors are entitled to specific provisions, including suitable living conditions, proper food and a reasonable right to privacy.
In the decision, Morris ordered the government to release the father and child “under appropriate conditions of release” and return their property, including any personal identification and employment authorization documents.
The order also said the government may not redetain them during their current removal proceedings until after an immigration hearing is held to determine if detention is appropriate.
The judge said the lawyers for the plaintiffs may pursue attorneys’ fees and costs by filing a separate motion.