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.”