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Mexican Abuse Victim Gains Right to Stay in the U.S.

The woman is protected by an anti-violence law, even though the beatings occurred outside the country, a court rules.

October 08, 2003|Henry Weinstein | Times Staff Writer

The U.S. 9th Circuit Court of Appeals on Tuesday ruled that a Mexican woman who fled to the United States after her husband savagely beat her was entitled to stay in this country because of a law protecting immigrant women who have suffered domestic violence.

In a 3-0 decision, the San Francisco-based panel overruled findings by a federal immigration judge and the Board of Immigration Appeals that Laura Luis Hernandez could be deported.

On Tuesday, the court found that the 1994 Violence Against Women Act, which provides that immigrants who have "been battered or subjected to extreme cruelty in the U.S." are entitled to an adjustment of their immigration status, applied to Hernandez, even though the beatings occurred in Mexico.

"The text of the statute reveals that Congress distinguished between 'battery' and 'extreme cruelty' " -- reserving the latter term "for something other than physical assault, presumably actions in some way involving mental or psychological cruelty," Judge Richard A. Paez wrote.

His opinion was joined by 9th Circuit Judge A. Wallace Tashima and 5th Circuit Judge Thomas A. Reavley, sitting on special assignment.

Legal experts said the first such federal appeals court ruling interpreting provisions of the 1994 law could have a significant effect on immigration judges and on other courts.

It is "tremendously important," said Karen Musalo, director of the Center for Gender and Refugee Studies at the UC Hastings College of the Law in San Francisco.

In addition to the language of the 1994 protection act, the three-judge panel relied heavily on academic studies about domestic violence, including the ways that it develops and endures.

Hernandez was 30 when she met Refugio Acosta Gonzalez in 1990 at a restaurant in Mexicali, Mexico, according to a narrative account contained in the 9th Circuit ruling.

The pair married after a short courtship, and Acosta started drinking heavily and verbally abusing his wife. One night, the couple got separated at a movie and were unable to find each other.

Several hours later, a drunken Acosta broke through a bedroom window of their home, lifted his wife by her hair and threw her against a wall. A few moments later, Acosta picked up a chair and broke it across Hernandez's back.

Hernandez testified later that her husband would not let her leave the house to get medical treatment.

Acosta, Hernandez said, did not harm her again until two years later, when he smashed a pedestal fan against her forehead.

Hernandez fled to Los Angeles, where her sister lived. Acosta persuaded a neighbor in Mexico who had helped Hernandez to give him the sister's phone number. Acosta called several times and Hernandez ultimately agreed to talk to him. Crying on the telephone, he told Hernandez that he needed her, "asked forgiveness, and he said that he wouldn't do it again," Hernandez testified later.

Once his wife was back in Mexico, however, the violence resumed.

According to the appeals court account, Acosta broke all the furniture in their home and tried to stab Hernandez; the knife sliced through her hand as she fought back, causing permanent nerve damage.

Acosta padlocked Hernandez inside the house, but she managed to get to a hospital for treatment and then fled to California again, this time to Salinas.

But when she and a male friend tried to go to Alaska to work on a fishing boat, Hernandez was intercepted at the airport and the deportation process began.

Hernandez applied for suspension of deportation under the Violence Against Women Act.

"Although Hernandez was not battered in the United States, the interaction that took place in the United States presents a well-recognized stage within the cycle of violence, one which is both psychologically and practically crucial to maintaining the batterer's control," Paez wrote Tuesday.

"We conclude that an abuser's behavior during the 'contrite' phase of domestic violence may, and in circumstances such as those present here does, constitute 'extreme cruelty.' "

Leslye Orloff, who co-wrote a friend-of-the-court brief in Hernandez's case and who serves as director of a program for immigrant women at the NOW Legal Defense and Education Fund in Washington, D.C., called Tuesday's ruling "a major victory."

Lisa Stone, executive director of the Northwest Women's Law Center, which represented Hernandez on appeal, said the ruling showed that "one of the highest courts in this country is beginning to understand domestic violence and is affirmatively moving away from blaming women who are trapped in violent relationships."

Justice Department spokesman Charles Miller says agency attorneys are reviewing the decision and "have not determined our next step in this matter."

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