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Ninth Circuit Grant of Asylum to Abused Child Expands Definition of "Particular Social Group"
by Carl R. Baldwin

On March 21, 2001, in Aguirre-Cervantes v. INS, No. 99-70861, the Ninth Circuit Court of Appeals reversed a decision of the Board of Immigration Appeals (Board) and granted asylum and withholding of removal to a nineteen year old native of Mexico who had been repeatedly abused and physically mistreated by her father, and who feared further abuse if forced to return to Mexico.nbsp In so doing, it clarified and expanded the definition of “particular social group” for asylum purposes.

The applicant claimed that she feared persecution as the member of a “particular social group” consisting of members of her immediate family who were similarly abused by her father. The Board had reversed the grant of asylum by an immigration judge, on the ground that the applicant could not prove that she had been persecuted “on account of” her membership in a particular social group, as the statute requires. In reversing the Board, the court concluded that the applicant was persecuted by her father on account of her membership in a particular social group (she, her sisters, and her mother), that she had a well-founded fear of future persecution, and that the government of Mexico was unable to interfere with that persecution. The court also held that she was eligible for withholding of removal, since it was “more likely than not” that her life or freedom would be threatened if she were forced to return to Mexico.

The facts of the case are painful to read about. From the time that she was three years old, the applicant was subjected to extreme abuse by her father, including daily or weekly whippings and beatings. She suffered a dislocated elbow and lost consciousness as a result of the one of the beatings. Her father refused to allow her to seek medical attention for the injuries that he inflicted on her. And, to make matters worse, her terrified mother did not permit her to go to the police, stating that it was her father’s right to treat her as he did. After more than a decade of this nightmare, the applicant, at the age of sixteen, left Mexico and flew to the United States. Upon arrival she was placed under proceedings, and asked for asylum.

One of the crucial facts for the court was the unwillingness of the authorities to do anything about the severe abuse, even in response to a complaint made to the police by two of the applicant’s sisters who had been physically and sexually abused by their father. The father’s brutality was also directed against his wife, the applicant’s mother. When the applicant on one occasion tried to intervene to protect her mother, who was recovering from a birth by caesarian section, the father threatened to kill both wife and daughter. The applicant’s testimony was fully supported by a 1997 U.S. State Department “Profile of Asylum Claims and Country Conditions” for Mexico which found that domestic abuse was pervasive, and that police, even when informed about it, are “reluctant to intervene in what society considers to be a domestic matter.”

The Ninth Circuit decision is, in my opinion, an appropriate correction of the narrow view that the Board of Immigration Appeals has taken, till now, on the “particular social group” definition. And it harmonizes well with the recent directive of the Attorney General that the Board reconsider its opinion in Matter of R-A-.

About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be rached by e-mail at

He has written a book on immigration law, called "Immigration Questions and Answers," 1997, Allworth Press, 10 East 23rd Street, New York, NY 10010 (212) 777-8395. The book, which contains essential background information about how the immigration law works, can be ordered in both an English Edition and a Spanish version from

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