Wednesday, October 24, 2001
Court to Rule En Banc on Family Violence as Basis for Asylum
By KENNETH OFGANG, Staff Writer/Appellate Courts
The Ninth U.S. Circuit Court of Appeals will rule en banc on whether violence within families is grounds for asylum when the government of the applicant’s native country won’t intervene, the court said yesterday.
In a brief order, the court announced that a majority of its unrecused active judges had voted to review a panel decision in favor of Rosalba Aguirre-Cervantes. The young woman claimed that she couldn’t return to Mexico because she would be beaten by her father and neither the police nor the social services agencies would intervene.
The panel, in its March 21 ruling, reversed a decision of the Board of Immigration Appeals. The BIA said that Aguirre, who left Mexico three years ago at age 16, lacked a viable claim for asylum because she wasn’t being subjected to political, social, or religious persecution.
But Ninth Circuit Senior Judge David Thompson said the BIA erred in ruling that Aguirre’s family is not a “particular social group” under the asylum provisions, and that she was not persecuted “on account of” her membership in that group.
In the Ninth Circuit, Thompson said, a “particular social group” is defined as “a collection of people closely affiliated with each other, who are actuated by some common impulse or interest,” provided there is “a voluntary associational relationship among the purported members, which imparts some common characteristic that is fundamental to their identity as a member of that discrete social group.”
Whether a particular family meets this definition, Thompson said, must be resolved in the context of each case. Aguirre’s family qualifies, he explained, because its 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 judge distinguished Estrada-Posadas v. INS, 924 F.2d 916 (9th Cir. 1991), in which the court held that a Guatemalan woman did not qualify for asylum based on membership in a family in which other members had been kidnapped, killed, or forced to leave their homes.
“Unlike the present case...in Estrada-Posadas there was no evidence that the petitioner had been persecuted at all, or that she lived with her persecuted family members or was otherwise readily identifiable as a member of their family unit,” the judge wrote.
Thompson also concluded that Aguirre was persecuted because of her family membership—there was evidence that Aguirre’s mother and siblings had all been beaten—and that her fear of further beatings if she returned was well-founded.
The judge cited a newspaper account, and comments in a State Department report, concerning domestic violence in Mexico. Most Mexican states have no laws against domestic violence, police departments don’t intervene because they consider it a family matter, and shelters are few in number, have very limited bed space, and are non-existent in most of the country, Thompson explained.
The judge rejected the suggestion that Aguirre could return to Mexico but live apart from her family. He cited evidence that she had gone to live with her grandparents on a couple of occasions, but that her father had forced her to return.
Since Aguirre, who has two brothers living in the United States, would need assistance from friends or relatives in order to live on her own, it would not be difficult for her father to find her again, the judge opined.
Thompson said it was unnecessary to delay the ruling while the Immigration and Naturalization Service considers a proposed rule refining the definition of “particular social group,” or to remand the case to the BIA for reconsideration.
It was clear from the record, the judge reasoned, that Aguirre would qualify for asylum whether the proposed rule is adopted or not, and that there is no evidence that could justify the BIA determining on remand that Aguirre is ineligible for asylum or is not entitled to withholding of removal.
Thompson was joined in the opinion by Judge Harry Pregerson and Senior Judge William C. Canby Jr.
The case is Aguirre-Cervantes v. Immigration and Naturalization Service, 99-70861.
Copyright 2001, Metropolitan News Company