(CN) – The 11th Circuit asked the U.S. Attorney General – the only person who can reverse deportation rulings – to cancel removal proceedings for a mother convicted of child neglect. Against her better judgment, the woman had followed her pastor’s advice to take back the husband who had molested one of her children.
“Simply put, this case calls for more mercy that the law permits this court to provide,” the unpublished ruling, released Friday, states.
The Atlanta-based federal appeals court said that it was “regrettably constrained” to find the deportation legal, but asked the Attorney General in an unpublished opinion to consider the “extreme hardship” a family has already had to endure.
Lucia I. Medina Martinez, a Mexican national, crossed the bored illegally when she was 15 years old. She lived in California and had two children after getting married, but then moved to Florida after divorcing her abusive ex-husband. In Florida, she re-married with Alnoldo Cortez and had four more children.
In 2006, her then-7-year-old daughter told her that Cortez, the stepfather, had repeatedly touched her inappropriately. Fearful that the authorities would take her children away, Martinez avoided calling the police and instead kicked Cortez out.
She went to her pastor for support, but the cleric encouraged Martinez to take Cortez back into her home “because he was her husband.” Martinez followed the advice, but three weeks later sought a second opinion from a counselor at her church. The counselor then contacted the police, with Martinez’s permission, and had Cortez arrested.
Martinez testified before the immigration judge: “All I wanted was for my children to not suffer more trauma,” according to Friday’s filing.
The state of Florida subsequently removed Martinez’s children from her home, and charged her with child neglect. She pled no contest because she thought this would be the quickest way to have her children back.
Martinez was sentenced to two days of confinement, a year of probation and 75 hours of community service, plus fines. Her children were returned to her.
Cortez was convicted of child molestation and sentenced to 15 years.
The next year, the Department of Homeland Security filed to have Martinez deported for being an illegal alien.
The Board of Immigration Appeals denied Martinez’s appeal against removal, finding that her child neglect conviction qualified as a “crime of child abuse,” thereby making her “statutorily ineligible for cancelation of removal.”
Martinez argued that her conviction for child neglect does not meet the board’s definition of a “crime of child abuse.”
Only the Attorney General may review cancelation of removal denials, but the panel said it considered whether Martinez did in fact meet statutory eligibility requisites.
The BIA defines “crime of child abuse” as not needing proof of injury, “failure to prevent or avoid the risk of harm is enough,” which does encompass Martinez’s conviction.
“This is one of those difficult cases where the law yields a conclusion that is onerous and, at its core, inequitable,” Judge Stanley Marcus wrote for a three-judge panel.
“There is no evidence that Martinez has ever been anything less than a caring parent,” the ruling states. “Under the peculiar facts of this case, removing Martinez and her six children to Mexico, a country in which they no longer have any relatives, would work an extreme hardship on a family that has already been forced to endure domestic abuse, the molestation of a child by her stepfather, and the incarceration of a father and husband. We, therefore, urge the Attorney General of the United States to review this matter again.”