Immigration authorities are detaining a Montana child illegally, attorneys allege

The petition filed Tuesday alleges Custom and Border Patrol agents detained the child and parent without a judicial warrant and are holding them without considering their ties to Billings. Attorneys with Upper Seven Law are calling for their immediate release.

The petition names 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.

Espinoza De La Cruz has lived in Billings for four years, according to the petition, and his child has lived there for three years and attends elementary school there.

The child has medical issues and upcoming appointments that took months to schedule, the court filing says. “(The child’s) parents made the appointment at the beginning of May. (The child) needs to complete bloodwork and an ultrasound one week before,” the petition states.

The lawyers also note the detention center in Havre is not designed to be a “long-term detention facility,” and an incarcerated minor is entitled to specific protections, including “suitable living conditions, appropriate and routine medical care, (and) screening for infectious diseases.” Standards for minors also include proper food, clothing, grooming items, contact with family members, and a “reasonable right” to privacy.

In a response filed Wednesday on behalf of the U.S. government, the U.S. Attorney’s Office acknowledged that officers arrested the parent and child without a warrant and without evidence they were an escape risk.

Assistant U.S. Attorneys Timothy Tatarka and Randy Tanner said the government issued warrants after the parent and child arrived at the station in Havre, and they said Espinoza De La Cruz and the child are from Mexico and present in the United States without legal permission.

The lawyers admitted the court rejected similar arguments in other cases but said nevertheless, the government maintains releasing the parent and child would not be appropriate.

The lawyers did not address in their court filing how the U.S. government is meeting the more stringent standards for holding a minor, and in a brief phone call Wednesday, Tatarka said he could not comment on the question.

Tatarka directed the Daily Montanan to the communications office, whose spokesperson declined to comment and directed questions to Customs and Border Patrol. The Daily Montanan reached out to CBP, ICE and U.S. Department of Homeland Security media contacts, as well as Crosson with the Havre sector, and did not hear answers as of press time.

The child and parent are part of a potential class action case, also filed by Upper Seven, alleging the federal government is detaining 17 people in the Cascade County Detention Center on illegal immigration holds.

“We are appalled to witness the federal government using its immense power not only to unlawfully take and detain adult Montanans, but to grab children from our streets,” said Upper Seven’s senior staff attorney Andres Haladay in an email. “There is nothing righteous in this utter failure of law enforcement. Nine-year-olds belong in school, not in border patrol stations for days on end without proper bedding.”

A hearing in the potential class action case is set for Sept. 4, but the lawyers argue the detention of the minor requires immediate attention from the court.

“The exceptional circumstances of a nine-year-old child being incarcerated in a temporary CBP detention facility in Havre … necessitates immediate relief,” the petition says. “Petitioners attempted to negotiate relief from respondents, prior to filing, but respondents refused any potential relief.”

A spokesperson for the U.S. Attorney’s Office said the office typically does not comment on active litigation.

In court filings, attorneys for the plaintiffs argue the court should release the father and child because their detention violates the Immigration and Nationality Act and the Due Process Clause of the U.S. Constitution. But if they are not released, the court should hold a bond hearing as is standard, they wrote.

“Immigration detention must reasonably relate to the government’s goals of preventing flight and protecting the community from harm and be accompanied by adequate procedural protections to ensure those goals are being served,” the petition states.

Attorneys also note DHS is required to “release a minor from its custody without unnecessary delay.”

They ask the court to assume jurisdiction, ensure the respondents don’t transfer the parent and child outside the district, and order their immediate release or a bond hearing.

They also ask the court to award attorneys’ fees and costs.