That Was Us! Reinterpreting Immigrant Provisions of the Violence Against Women Act with Grace Huang

By Grace Huang

This year marks Legal Voice's 35th anniversary year. The
 That Was Us! series celebrates where we've been and what we've accomplished by creating a patchwork of voices from the people who helped us along the way.

In 2002 and 2003, in my capacity as a steering committee member of what was then known as the National Network to End Violence Against Immigrant Women (NNEVAIW), I had the privilege of working in partnership with Laura Luis Hernandez, Legal Voice (or Northwest Women's Law Center, as it was then called), and the Northwest Immigrant Rights Project (NWIRP), in a case before the Ninth Circuit Court of Appeals. The case involved the interpretation of the provisions of the 1994 federal Violence Against Women Act (VAWA) that allow for someone to defend herself against deportation if she is married to a U.S Citizen or a Lawful Permanent Resident, and that spouse has physically abused her or subjected her to extreme cruelty.

In Ms. Luis Hernandez' case, her permanent resident husband was violent and abusive, but all of the physical abuse took place in their home country, and she had fled to the United States. Under the law at the time, a VAWA applicant was required to prove he or she was physically abused or subjected to extreme cruelty in the U.S. (the law has since changed), and her case had been denied by an immigration judge, who had found that none of the relevant abusive behavior had taken place in the U.S.

It was clear to Sara Ainsworth (staff attorney at Legal Voice) and the attorneys at NWIRP that the Immigration and Naturalization Service and the Immigration Judge had misapplied the law, based on their lack of understanding of the dynamics of domestic violence, which involves an ongoing pattern of controlling and coercive behavior, including the physical violence.

However, to even get to the merits of the Immigration Judge's decision, Ms. Luis Hernandez had to overcome a jurisdictional hurdle disallowing review of this misapplication of the law. Federal immigration law specifies that there is no judicial review of decisions that are left in the "discretion" of the Immigration Court. Through the amazing collaborative efforts of Legal Voice, its pro-bono counsel Kay Frank, Rima Alaily, and Angela Niemann, NWIRP, and NNEVAIW, we were able to persuade the Ninth Circuit in Hernandez v. Ashcroft. In the end, the Court agreed with us that the interpretation of what constitutes "extreme cruelty" is a legal determination and not a purely discretionary decision, that the Court had jurisdiction to review the erroneous decision of the Immigration Judge, and that Ms. Luis Hernandez had been stalked and subjected to extreme cruelty in the U.S., and was therefore eligible for the protections under VAWA.

Not too long ago, I had the opportunity to see Ms. Luis Hernandez again in person, and am thrilled to say she is thriving and continues to be grateful for the efforts that Legal Voice and the legal community put in to assist not only her, but immigrant survivors of domestic violence throughout the country.

Grace Huang is the Public Policy Coordinator at the Washington State Coalition Against Domestic Violence, a statewide organization of over 70 domestic violence shelter and advocacy programs. At WSCADV, Grace has had the opportunity to work alongside Legal Voice, in partnership with amazing survivors of domestic violence, to bring their experiences to the legislature, court system, and administrative agency policy making processes. In between meetings, Grace enjoys watching her child cheer on the Seattle Mariners, WSCADV's strong partner in the 'Refuse to Abuse' domestic violence prevention campaign.