Rosa Maria Hernandez has been in custody at a shelter in San Antonio since she was discharged by a hospital following gallbladder surgery

A lawsuit has been filed seeking the immediate release of a disabled 10-year-old girl detained by the US Border Patrol after she went through a checkpoint on the way to hospital for an operation.

Rosa Maria Hernandez has been in custody at a shelter in San Antonio since last Wednesday after she was discharged by a hospital in Corpus Christi following gallbladder surgery.

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She has cerebral palsy and, according to the federal suit filed by the American Civil Liberties Union on Tuesday, has the cognitive development of a six-year-old and requires specialised care and constant attention.

Rosa Maria’s parents brought her from Mexico to the US when she was three months old. At about 2am last Tuesday, the special-needs transport vehicle taking her on the 150-mile journey from her home in the Texas border city of Laredo to Driscoll children’s hospital was stopped at an interior Border Patrol checkpoint and agents discovered her undocumented status.

Officers then followed Rosa Maria, who was travelling with a 34-year-old cousin who is a US citizen. The lawsuit states they “shadowed her every move at the hospital. But rather than permit RMH to return to her family once she was discharged after surgery, as her doctors had recommended, the agents arrested RMH directly from her hospital bed, without a warrant, for the purpose of initiating removal proceedings to deport her from the United States.”

The girl was taken 150 miles away to a shelter for unaccompanied minors run by a government contractor, where she is being held while the Office of Refugee Resettlement determines whether she can be returned to her family, an assessment process that could take weeks or months. Her primary caregiver, her mother, is undocumented and has been unable to visit her at the shelter.

The lawsuit accuses the government of violating multiple immigration laws and Rosa Maria’s constitutional rights. It argues that she was unlawfully arrested without a warrant, that her detention is having a negative effect on her physical and mental health and that she was wrongly designated as an unaccompanied minor even though the immigration authorities are aware that she lives with her family in a stable home environment.

“The government cannot render [her] an unaccompanied child merely by virtue of her arrest,” the ACLU contends.

The Border Patrol said in a statement that its policy was to not comment on pending litigation, but that “our trained law enforcement professionals adhere to the [Department of Homeland Security’s] mission, uphold our laws while continuing to provide our nation with safety and security”.

Spokespeople for the Office of Refugee Resettlement did not immediately respond to a request for comment.

The Border Patrol has previously said that it is simply carrying out its mission of enforcing immigration laws, but activists counter that the agency could have used discretion in this case and is going against its policy of generally avoiding enforcement actions at “sensitive locations”, including hospitals.