Child Sex and Physical Abuse is Persecution for Grant of Asylum

September 21st, 2008 by Leonard Birdsong


Birdsong’s Refugee and Asylum Law students might wish to read the story of three children from Honduras who were recently granted asylum in the U.S. on the ground that their persecution was was based upon child sex and physical abuse.  They were found to be a “particular social group”  It will be interesting to see whether this decision is allowed to stand if the government appeals to the BIA.  Birdsong believes that the decision should stand:

NY judge cites abuse, OKs Honduran kids’ asylum

By FRANK ELTMAN | Associated Press Writer

September 12, 2008

BRENTWOOD, N.Y. – In a victory their own lawyer considered a “very, very long shot,” three children who sought asylum on grounds they fled sexual and physical abuse at the hands of relatives in Honduras will be allowed to remain in the United States.“I was always afraid that immigration would come and try to deport us and separate our family,” 14-year-old Ixy Mejia-Garcia said Friday, sitting on a couch between older sister Wendy, 15, and brother Tony, 12, in their father’s
 

 

Long Island

home.”Now that we are legal, I feel that everything is possible.”

In a ruling dated Tuesday, Immigration Judge Gabriel Videla agreed that the youngsters, who were caught secretly entering the country at the
 

 

Texas-Mexico border in 2005 with one of their father’s friends, should not be sent back to Honduras, saying they have “suffered astonishing hardship.”

Videla said all three “were beaten on a regular basis and the girls were sexually violated. They were targeted and taken advantage of because they could not protect themselves and they could look to no one to fight for them.””…Given the evils the children have faced they cannot be expected to repatriate,” said the judge.
The family’s lawyer used an unusual application of the law to prove that the children were targeted for persecution because they lacked parental protection. In his ruling, the judge cited a State Department report on human rights practices in Honduras, which found that child abuse is a serious problem in the country and children who do not have parental protection are often molested or exploited.

A call seeking comment from the attorney who represented the Department of Homeland Security in the case was not immediately returned. The government has 30 days to decide whether it will appeal the ruling.

The children’s ordeal dates back a decade, when Hurricane Mitch devastated their home country, forcing their father to emigrate to the United States. He was granted “temporary protected status,” a designation that allows people to stay in the U.S. for various reasons, including natural disasters.

The father, Margarito Mejia, built a successful home contracting business on Long Island, and left the children in the care of relatives in Honduras after their mother abandoned them following the hurricane.

He learned in 2005 that the girls were being molested by a male cousin and that Tony was being physically abused by another relative. The Associated Press does not identify victims of sexual abuse in most cases, but the family has gone public with its story and the children’s names have been reported by other news outlets.

After the children were caught entering the U.S., they were permitted to live with their father while their attorney sought legal remedies to keep them in the country.

Attorney David Sperling ultimately succeeded in convincing authorities that the children qualified for asylum under a legal term identifying them as members of a “social group” that was targeted for persecution. They were targeted, he argued, because relatives knew the children’s parents were in no position to protect them.

The judge agreed.

“It was a very, very long shot,” Sperling said. “Everyone told us that we would never win a case like that and in fact to my knowledge there’s never been a case like this in the history of immigration law.”

“They have shown to the court’s satisfaction,” Videla wrote, “that their membership in this particular social group was a central reason for their persecution and therefore have met their burden. The children’s vulnerability was the motivation for their caretakers to exploit, abuse and persecute them.”

When he learned earlier this week that asylum was granted, Mejia couldn’t wait to tell the kids. He drove to their school and asked the principal to see them because he had very important news.

“The kids wondered why I was there,” said Mejia. They asked him, “`What’s going on?”

At first they didn’t believe him; he repeated the news until it sank in.

“I was overjoyed,” he said, speaking in Spanish through an interpreter. “They decided to grant asylum to my beautiful children.”

Karen Musalo, a law professor and director of the Center for Gender and Refugee Studies at the University of
 

 

California

Hastings College of Law, said immigration judges rarely grant asylum via the “social group” argument, but said after reading Videla’s ruling that she agreed with it.”These are exactly the kind of people the law was intended to protect,” she said. “The judge’s decision was so clearly within the law. It is rare, but it shouldn’t be rare. This was an extremely well-written and reasoned decision.

“My hope is that other asylum officers or judges that have similar cases in front of them will really take note of the approach this judge took.”
 

 

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One Response to “Child Sex and Physical Abuse is Persecution for Grant of Asylum”

  1. Comment by uk visa

    I think a great many of us share this hope. Well done to the judge for his compassionate ruling.