The Niqabi Paralegal

Laura Hernandez didn't originally intend to come to the United States. Although her husband, Refugio, was a lawful permanent resident here, they lived in Mexico. However, when Laura left Refugio, fearing for her life, she fled to the U.S.

The first time she left him, he tracked her down and convinced her to return to him in Mexico. She may have believed that he was genuinely repentant, or she may have feared that he would kill her if she didn't go back.

The second time she left him, she was more careful. Escaping him for good, she attempted to start a new life in the U.S. The only problem was that she didn't have any immigration papers. While she was still married to Refugio, he had filed for her to become a permanent resident and the petition was approved. However, any papers that the INS sent went to Refugio and Laura was hardly going to go back to get them.

Laura was caught by the INS during a border inspection while attempting to pass into Canada, and she was put in deportation proceedings. With the help of the Northwest Immigrant Rights Project, she took advantage of a provision of the Violence Against Women Act called "cancellation of removal".

VAWA provides that an undocumented immigrant in deportatin proceedings who has been subject to battery or extreme cruelty by a U.S. citizen or lawful permament resident spouse or parent, and who meets certain requirements of residency and good character, can have her removal canceled and can be granted legal permanent resident status.

The current law says only that the abuser has to have been a U.S. citizen or lawful permanent resident. However at the time that Laura was in deportation proceedings, the law required that the abuse took place in the United States.

And this was Laura's problem. Refugio's physical abuse had all taken place in Mexico, not the United States. The immigration judge and the Board of Immigration Appeals both ruled that this made Laura ineligible for cancellation of removal.

But with the help of the Northwest Women's Law Center, Laura contined her appeal to the Ninth Circuit, where she finally achieved a victory.

The Ninth Circuit held that Laura was subject to abuse while in the United States. Not physical battery, but extreme cruelty. On the surface, Refugio's behavior to her while she was in the U.S. doesn't seem like cruelty much less extreme cruelty. He was trying to win her back, after all.

But the court recognized that abusive relationships follow a clear pattern or cycle and that themes of dominance and cruelty pervade the whole relationship, whether or not actual violence is occurring. The "hearts and flowers" contrition phase is part of the cycle. It secures the abuser's control over the victim and prepares her to receive more physical abuse. It can often be a cover for violent or even murderous intentions if the victim does not return to the abuser.

For these reasons, the court found that Refugio's behavior to Laura while she was in the U.S. did in fact constitute "extreme cruelty" and satisfy the requirements for cancellation of removal. Unless the INS appeals, Laura will finally be able to stay legally in the United States.

The Ninth Circuit's decision is not just a victory for Laura Hernandez, it is an important step forward for all victims of domestic violence, especially immigrant victims. The particular point of law that caused Laura so much trouble is no longer in force, but the new and more enlightened understanding of domestic violence that the Ninth Circuit has provided will serve as a precedent for years to come. Courts are beginning to recognize that sometimes the worst abuse of all is that which cannot be seen.