A federal appeals court judge has taken the unusual step of appealing directly to Attorney General Eric Holder to overturn a deportation order for a Florida woman who was convicted of child neglect after briefly following her pastor’s advice to allow her husband back into the home after he touched one of her children inappropriately.
The woman, Lucia Medina Martinez, ultimately was uncomfortable with her pastor’s advice, sought help from a church counselor and kicked out her husband a second time three weeks later.
In an opinion issued last week, Judge Stanley Marcus, writing for a three judge panel, ruled that under the law Martinez should be deported. But he called the conclusion “at its core, inequitable.”
“Simply put, this case calls for more mercy than the law permits this court to provide,” said Stanley, a Republican first appointed to the federal bench by President Ronald Reagan and named to the appeals court by President Bill Clinton.
Charles Miller, a Justice Department spokesman, said the case, Martinez v U.S. Attorney General, is being considered but had no further comment on the judge’s request.
Martinez’ attorney, Rebecca M. Placensia of Miami, did not return a telephone call seeking comment.
Martinez had sought a “hardship” exception for eligibility for the attorney general to take discretionary action to vacate her removal order. But both an Orlando federal judge and now the Eleventh Circuit have ruled she is now eligible for the discretionary action. Technically, the appeals court did not review the decision of the Florida judge but considered the case “de novo,” or as though it was new.
Martinez, who came to the United States illegally in 1994 when she was 15, first lived in California, where she married and had two children, ultimately leaving her husband because he was abusive and moving to Florida.
There she met, lived with for five years and ultimately married a second man, Arnoldo Cortez. The two had four children together.
In 2006, her 7-year-old daughter told Martinez that Cortez had touched her breasts and vaginal area, and that it had happened repeatedly during that year. Martinez kicked Cortez out of the house, but did not call the police because she feared her six children would be taken from her. But she worried about whether she had done the right thing and consulted her pastor, who urged her to let Cortez return home “because he was her husband.” So she did, according to the court’s decision.
But still troubled by her decision, she sought other counseling through her church, and that counselor, with Martinez’s consent, contacted the police. Cortez was arrested on charges of sexual molestation. He is now serving a 15-year sentence for the abuse.
Martinez was charged with child neglect – under the theory that she had knowledge of the abuse by Cortez and failed to protect her daughter.
Her children were removed from her custody, though they were returned soon after she pleaded no contest to the charge. She was sentenced to the two days she had already served and placed on probation for the rest of a year. The Department of Homeland Security then moved to deport her as an illegal alien.
Her attorney argued that Martinez wasn’t convicted of a crime of “child abuse” as defined by the immigration law because she had done nothing to abuse her children. But the Orlando court and the Eleventh Circuit both ruled that her no contest plea came under the laws blocking her from gaining a hardship exception.
“Under the peculiar facts of this case, removing Martinez and her six young 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 step-father, and the incarceration of a father and husband,” Marcus wrote.
“We, therefore, urge the Attorney General of the United States to review this matter again.”