BREAKING: Courts protect woman from deportation to Honduras, finding credible threat of domestic violence

Photo: Rosa Ortez-Cruz in sanctuary in a church in Chapel Hill. (photo by Stef Bernal-Martinez)

A woman who fled Honduras 18 years ago after her partner stabbed her in the stomach and threatened to kill her is entitled to stay in the United States, a panel of federal judges decided in a ruling on Wednesday.

An immigration judge had previously turned down a request by Rosa Ortez-Cruz, a Honduran native who has been living in sanctuary in a church in Chapel Hill, for protection against deportation. Ortez-Cruz had applied for “withholding of removal,” described by her law firm as “a type of protection available for those ineligible for asylum who demonstrate a ‘clear probability’ of persecution” in their home country.”

The Board of Immigration Appeals, an
administrative body under the US Justice Department that is responsible for
interpreting and applying immigration laws, had upheld the immigration judge’s
ruling against Ortez-Cruz.

But a panel of judges in the Fourth
Circuit Court of Appeals in Richmond, Va. vacated the Board of Immigration
Appeals’ decision and ordered the agency to grant Ortez-Cruz’s application. The
order was written by Judge Albert Diaz, a North Carolina jurist appointed by
President Obama, and unanimously joined by Judge Allison Jones Rushing, a
recent Trump appointee, and Judge Pamela Harris, a second Obama appointee.

Jeremy McKinney, Ortez-Cruz’s
lawyer, told Triad City Beat that the
decision allows his client to stay in the United States for the foreseeable
future. The US Department of Homeland Security, he said, “would have to go back
to immigration court and prove a fundamental change had occurred in Honduras
before an [immigration judge] could terminate the grant. Unless and until that
day arrives, Rosa will have the protection of our country indefinitely.”

Ortez-Cruz, a former Greensboro resident who has been receiving support from the Chapel Hill Mennonite Fellowship and Church of Reconciliation, said she is grateful to the Fourth Circuit judges “for granting my request to live at peace and in safety in this country.”

McKinney credited his client with
continuing to fight her deportation since she was cited by Homeland Security in
2013 with being in the country without authorization.

“Rosa’s persistence not only saved her
own life but the lives of future survivors seeking protection,” McKinney told TCB. “Her case is now legal precedent.”

The Board of Immigration Appeals had denied Ortez-Cruz’s request for withholding of removal based on a finding that the government proved that Ortez’s ex-partner no longer posed a threat, and that she could avoid harm by relocating to a different part of Honduras than where he lives. But the Fourth Circuit ruled that the board erred by placing the burden of proof on Ortez-Cruz to prove the presumption that her former partner poses a threat rather than requiring that the government prove the opposite.

Ortez-Cruz was 16 years old when she
began a relationship with Jose Genaro Auceda, who was then about 27, as in
Judge Diaz’s order. A heavy drinker, Aucedo would “sometimes brandish his knife
around her when drunk,” according to the court order, and on one occasion “he
made her sit still on a chair when he emptied a two-liter soda bottle on her”
and passed his knife around her head and shoulders.

Three years into the relationship, Aucedo
stabbed Ortez-Cruz in the stomach, according to Diaz’s order, and he straddled
her on the floor and threatened to kill her, telling her that “if you’re not
mine, you’re not going to be anyone else’s.” Hospital records showed she had surgery
to repair her stomach wound.

Over the course of an eight-month
recovery, Ortez-Cruz stayed with her sisters in Tegucigalpa, the capital city
of Honduras. She worked briefly in Mexico, before making her way to the United
States. Initially, she stayed with a cousin in Virginia and Washington DC, but
at some point after 2004, she moved to North Carolina.

Ortez-Cruz also told the immigration
judge that during the period when she was living in Virginia and Washington DC
a friend told her that Aucedo was in Virginia looking for her, but that she
heard that he was deported in late 2003 and or early 2004. She also told the
immigration judge that her son, who was with her in North Carolina, received a
Facebook message from Aucedo just weeks before the hearing in 2016.

During Ortez-Cruz’s immigration hearing,
Julie Owens, a domestic-violence and post-traumatic stress disorder expert,
testified that Ortez-Cruz’s case “demonstrated extreme threat and potential for
ongoing threat… because domestic violence is a pattern of increasing frequency
and severity over time, and the trajectory of this case ended in attempted
murder.” Owens added that “the only place for this to go would be murder.”

The Board of Immigration Appeals found
in its review of the case that Ortez-Cruz was entitled “to a presumption that
her life or freedom will be threatened if she returns to Honduras” based on her
membership in particular social groups — specifically “Honduran women in
domestic relationships who are unable to leave the domestic relationship” and “women
who are viewed as property by virtue of their position in the domestic
relationship.” But the board found that the government successfully rebutted that
presumption.

In ruling against Ortez-Cruz, the
immigration judge reasoned — incorrectly, in the Fourth Circuit’s opinion
— that the burden was on Ortez-Cruz to prove her former partner’s “dangerousness.”
The immigration judge found that it was insufficient for Owens to testify that she
“lacks any reason to believe” Ortez-Cruz’s former partner had been
rehabilitated. Instead, the judge found that he “may have been rehabilitated
through numerous experiences,” potentially including “a conviction for harming
another partner, reflection and repentance [and] maturation or some other
life-changing development.”

The Fourth Circuit found that the
Board of Immigration Appeals ruled incorrectly because to rebut Ortez-Cruz’s
presumption that her life or freedom will be threatened if she returns to
Honduras, “the government must prove that its view of the evidence” that there
was a change of circumstances or she could safely relocate to a different part
of the country “is the most convincing one.”  

The Fourth Circuit panel found that
the immigration judge made several mistakes in Ortez-Cruz’s case.

“First, the IJ faulted Owens for
assuming that Auceda hadn’t been rehabilitated, stating that ‘the burden is on
[Ortez-Cruz] to prove [Auceda’s] dangerousness,’” Judge Diaz wrote. “This is
incorrect. Once the presumption applied, it was the government’s burden to show
that Auceda was no longer dangerous. Second, the IJ concluded that Ortez-Cruz ‘did
not sufficiently corroborate her potential for future persecution,’ but she has
no burden to do so. The IJ was required to presume that she faced future harm
unless the government proved otherwise.”

Diaz also wrote that the immigration
judge erred in failing to credit Owens’ testimony about cases in which serial
abusers murdered women after 28 years without contact.

And the Fourth Circuit judges said
that the immigration judge “arbitrarily” disregarded Owens’ testimony “that serial
abusers can travel great distances in pursuit of victims.”

Judge Diaz laid out a number of ways
the government could have successfully made the case that Ortez-Cruz would no
longer be in danger if she returned to Honduras.

“For example, it could have tried to
find information about Auceda online; demonstrated that Honduran law
enforcement has improved at protecting domestic-violence victims; elicited
testimony from Owens (or cited documentary evidence, if it exists) about the
statistical unlikelihood of any abuser harming a previous victim after decades without
contact; or called its own expert to testify to that effect,” Diaz wrote.

Diaz also scoffed at the government’s
argument that Ortez-Cruz could return safely to Honduras based on the evidence
that Auceda didn’t find her in the eight months she was staying with her
sisters, and that he has never contacted her mother in Honduras over the
intervening years.

“No reasonable adjudicator could
find that these facts establish (by preponderance of evidence) that Ortez-Cruz ‘could
avoid a future threat to her life by relocating’ within Honduras and that it
would reasonably expect her to do so,” Diaz wrote.

McKinney portrayed the Fourth Circuit
decision as rebuke to the Trump administration in a statement posted on
Facebook on Wednesday.

“Today is a win for domestic
violence survivors,” he said. “After fighting for decades to extend asylum
protection to victims, this administration has done everything in its power to
turn back the clock, including the political manipulation of the immigration
courts. However, an independent judiciary continues to give voice to victims.”