Aguirre-Cervantes v. INS: 9th Circuit Grants Withholding to Woman Who Was Abused by Father

IMMIGRATION LAW & POLICY

Asylum, Refugee, and Other
Protected Statuses

AGUIRRE-CERVANTES V. INS: 9TH CIRCUIT GRANTS WITHHOLDING TO WOMAN WHO WAS ABUSED BY FATHER
Immigrants' Rights Update, Vol. 15, No. 3, May 10, 2001

The Ninth Circuit Court of Appeals has held that a young Mexican woman who as a child was severely physically abused by her father is eligible for asylum and entitled to withholding of removal. Key to the court's decision was its conclusion that the petitioner's immediate family constitutes a "particular social group" and that the petitioner was persecuted on account of her membership in that social group. The court further concluded that the petitioner has a well-founded fear of future persecution should she be forced to return to Mexico and that Mexico is unable or unwilling to interfere in that persecution.

The petitioner, Rosalba Aguirre-Cervantes, currently is nineteen years old. From the age of three until she ran away from home at the age of sixteen and applied for asylum in the United States, she was severely abused by her father. She testified that he beat her with a horse whip, with tree branches, a hose, and his fists. She suffered a dislocated elbow, lost consciousness as a result of some of the abuse, and still bears various scars on her forehead, hand, arm, and leg. Her father would not allow her to get medical attention for any of the injuries she suffered, nor would her mother allow her to report the beatings to the police. She testified that when she would try to defend her mother against similar abuse, the father beat both of them and once threatened to kill them. When the petitioner would run away to seek shelter with her grandfather, her father would come after her and force her to return home with him.

Finding the petitioner's testimony "credible and consistent and detailed," the immigration judge ruled that she was a member of a particular social group consisting of "victims of domestic violence" or "the family which is a victim of domestic violence." The IJ granted her application for asylum but denied her request for withholding of removal. The Board of Immigration Appeals agreed with the IJ's determination that the petitioner had suffered severe abuse at the hands of her father and that the abuse constituted persecution. However, the BIA characterized the particular social group to which the petitioner belonged as "Mexican children who are victims of domestic violence" and determined, according to the Ninth Circuit's summary, "that such a group had not adequately been shown to be a particular social group for asylum purposes." The BIA reversed the IJ's decision, whereupon the petitioner appealed.

To be eligible for asylum, applicants must prove that they were persecuted or fear that they will be persecuted in their country of origin due to one of any of five grounds: their race, religion, national origin, political opinion, or membership in a particular social group. Citing its own decisions in Sanchez-Trujillo, 801 F.2d 1571, 1576 (9th Cir. 1986), and Hernandez-Montiel, 225 F.3d 1084, 1091 (9th Cir. 2000), as well as decisions in the First and Seventh Circuits (Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1994), and Iliev v. INS, 127 F.3d 638, 642 (7th Cir. 1997)), in addition to BIA precedent, the court held that a family may constitute a "particular social group" within the meaning of the asylum statute. The specific factors that led the court to conclude that the petitioner's family qualifies as a "particular social group" are, according to the court, "that the petitioner's family members are part of an immediate, as opposed to an extended, family unit; they now live or have lived together and are otherwise readily identifiable as a discrete unit; and they share the common experience of all having suffered persecution at the hands of the petitioner's father."

The court further found that the petitioner had suffered persecution on account of her membership in the particular social group constituted by her immediate family. According to the court, "It was established by abundant evidence-and undisputed-that it was the petitioner's status as a member of [her] family that prompted her beatings." Obviously, according to the court, the goal of the petitioner's father was to control and dominate the members of his family to whom he had access.

When the persecution upon which an applicant is basing an asylum claim was inflicted by a nongovernmental entity, the applicant must show that the government of the applicant's country of origin was unable or unwilling to control the persecutor. The IJ had found the fact to be established that the Mexican government was unable or unwilling to prevent the petitioner's father from persecuting her. According to the Ninth Circuit, the case record contains documentary evidence establishing that "domestic violence is widely condoned in Mexico and that law enforcement authorities [there] are unwilling to intervene in such matters." The court concluded that "any reasonable fact finder considering the evidence in this case would conclude that the Mexican government is unable or unwilling to control Mr. Aguirre's abusive behavior directed toward his immediate family."

Having established that she had been persecuted in the past, the petitioner had to show that she had a well-founded fear of future persecution should she be forced to return to Mexico. A finding that an asylum applicant has been persecuted in the past creates a rebuttable presumption that he or she has a well-founded fear of future persecution. In examining this issue, the court analyzed a new Immigration and Naturalization Service regulation that allows the INS to rebut the presumption that an asylum applicant will suffer future persecution. The regulation requires the INS to show by a preponderance of the evidence that there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution in his or her home country. The INS may also show that the applicant could avoid future persecution by relocating within her country of origin.

However, the court noted that it has repeatedly "made clear that on remand the BIA may not look beyond the existing record to determine whether changed country conditions rebut the presumption of a well-founded fear of future persecution." As a general rule, according to the court, "a petitioner who was eligible for asylum when the BIA considered his case does not lose that eligibility as a result of the agency's failure to recognize it." The court's review of the existing record yielded a determination that the INS had not rebutted the presumption that the petitioner would suffer future persecution should she be returned to Mexico. The court therefore found that the petitioner is entitled to withholding of removal and eligible for asylum. It remanded the case to the attorney general "to exercise his discretion and determine whether to grant asylum."

Aguirre-Cervantes v. INS, No. 99-70861 (9th Cir. Mar. 21, 2001).