By Jason Hoppin
The Recorder
October 24, 2001
The case of a woman who was granted asylum after severe beatings at home in Mexico will be reheard, the 9th U.S. Circuit Court of Appeals announced Tuesday.
The government had appealed the decision, arguing the court should have deferred to the Immigration and Naturalization Service's interpretation of its own regulations. Consequently, the en banc hearing will not likely discuss the merits of the case, but will nevertheless be closely watched. The three-judge panel ruled earlier this year that evidence of family domestic abuse, coupled with a demonstration of the nation's inability or unwillingness to curb the violence, could form the basis of an asylum bid.
The 9th Circuit was the first court in the nation to so rule, as judges David Thompson, Harry Pregerson and William Canby Jr. linked the court's jurisprudence with that of several Western nations.
The decision to rehear the case comes while the Justice Department continues to sort through controversial proposals to allow domestic violence and other asylum bids by persecuted women who say they have nowhere to hide in their own countries. Former Attorney General Janet Reno proposed the rule changes in her waning days in office. They were not enacted before the Bush administration took over, and John Ashcroft's Justice Department has been considering the rules ever since.
Reno's action was triggered by the case of Rodi Alvarado Pena, who was denied a similar asylum bid by the Board of Immigration Appeals before Reno exercised her authority to vacate the decision. She then ordered that Alvarado's case not be reheard until new regulations were in place.
Thus, what was once controlling law within the INS is no longer. Until now the 9th Circuit's case, Aguirre-Cervantes v. INS, 01 C.D.O.S. 2270, has been binding in the West.
Rosalba Aguirre-Cervantes fled Mexico to live with her brothers in the United States after suffering savage beatings at the hands of her father. Her testimony was corroborated by her uncle.
Judge Thompson, who wrote the opinion, noted that in 1997, Mexico City, with a population of 23 million, had a grand total of eight beds in one battered women's shelter.
"This evidence demonstrates the government's inability or unwillingness to control the abusive behavior of domestic violence perpetrators like Mr. Aguirre and, indeed, its tacit approval of a certain measure of abuse."
Meanwhile, Stephen Knight, coordinating attorney for the Center for Gender and Refugee Studies at Hastings College of the Law, said the INS has continued to hear related asylum bids, and expects -- even if the 9th Circuit case is vacated -- a court one day to deal with the issue on point.
"The Board [of Immigration Appeals] isn't going to be able to sit forever and say, 'Wait, let us do this.' These cases are going to go forward," Knight said.
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