Valley woman trying to stay in US wins appeal

A Yakima Valley woman took a significant step toward winning legal immigrant status when a federal appeals court ruled that she qualified to remain with her children, her attorney says.

The San Francisco-based U.S. Ninth Circuit Court of Appeals panel issued its ruling Monday in the case of Maria Lopez-Birrueta, who had argued that she should not be deported because her children, who were legal residents, had been assaulted by their father.

Lopez-Birrueta, a Mexican citizen, entered the United States illegally in 1994, when she was 14.

The federal government notified her in 2002 that she would face deportation proceedings. She applied for permission to remain under a provision in the Violence Against Women Act of 1994.

That law allows illegal immigrants to fight removal on the grounds that their spouse assaulted them or, as in Lopez-Birrueta's case, their unmarried companion has assaulted their children in common.

The law was intended to keep legal residents from using their partner's or spouse's illegal status as a way of preventing them from reporting crimes or otherwise controlling them.

Lopez-Birrueta was represented by the Northwest Immigrant Rights Project, which has a Granger office.

Matt Adams, the project's legal director, said the Ninth Circuit decision was important because it determined that the applicant must provide credible evidence that battery occurred. Battery is generally understood to include any act of violence or threatened act.

The immigration judge who heard Lopez-Birrueta's case ruled that the "regulatory definition of 'battery or extreme cruelty' requires a heightened level of violence that 'results or threatens to result in physical or mental injury.' "

The Ninth Circuit ruling found that the immigration judge went beyond the language of the statute in ruling against Lopez-Birrueta.

The court ordered that the case be returned to the Board of Immigration Appeals in Seattle for further consideration of other factors that govern whether Lopez-Birrueta should be allowed to remain in the country. Those include whether she is considered to be of good character or whether she has any criminal history that would bar her from staying.

"We're confident there aren't going to be any problems on those other issues," Adams said.

The government was represented by the Department of Justice's Office of Immigration Litigation in Washington, D.C., which could not be reached for comment after business hours Tuesday.

No criminal charges were ever filed against the children's father, Adams said. The children testified that he had not assaulted them in recent years.

* Mark Morey can be reached at 509-577-7671 or mmorey@yakimaherald.com.