Ninth Circuit Grants Protection Against Torture for Mexican Transgender Woman
In a published opinion by Judge Jaqueline Nguyen (joined by Judge Harry Pregerson and Barrington Parker (sitting by designation), the U.S. Court of Appeals for the Ninth Circuit (yesterday granted deferral relief under the Convention Against Torture (CAT) to an undocumented transgender woman represented by the Public Law Center, along with pro bono counsel Manatt, Phelps, Phillips, LLP. Carey Avendano-Hernandez came to the United States seeking protection after being threatened, beaten and raped by law enforcement and military officials in Mexico.
Here is how the court summarized the case:
“Edin Avendano-Hernandez is a transgender woman who grew up in a rural town in Oaxaca, Mexico. Born biologically male, she knew from an early age that she was different. Her appearance and behavior were very feminine, and she liked to wear makeup, dress in her sister’s clothes, and play with her sister and female cousins rather than boys her age. Because of her gender identity and perceived sexual orientation, as a child she suffered years of relentless abuse that included beatings, sexual assaults, and rape. The harassment and abuse continued into adulthood, and, eventually, she was raped and sexually assaulted by members of the Mexican police and military. She ultimately sought refuge in the United States, applying for withholding of removal and relief under Article 3 of the Convention Against Torture (“CAT”). Avendano-Hernandez has a prior 2006 felony conviction for driving while having a .08 percent or higher blood alcohol level and causing bodily injury to another person, a violation of California Vehicle Code § 23153(b). The Board of Immigration Appeals (“BIA”) concluded that this conviction constitutes a particularly serious crime, rendering Avendano-Hernandez ineligible for withholding of removal. We find that the BIA’s decision was within its discretion. The immigration judge (“IJ”) and the BIA erred, however, in denying her application for CAT relief, ironically exhibiting some of the same misconceptions about the transgender community that Avendano-Hernandez faced in her home country. The IJ failed to recognize the difference between gender identity and sexual orientation, refusing to allow the use of female pronouns because she considered Avendano-Hernandez to be “still male,” even though Avendano-Hernandez dresses as a woman, takes female hormones, and has identified as woman for over a decade. Although the BIA correctly used female pronouns for Avendano-Hernandez, it wrongly adopted the IJ’s analysis, which conflated transgender identity and sexual orientation. The BIA also erred in assuming that recent anti-discrimination laws in Mexico have made life safer for transgender individuals while ignoring significant record evidence of violence targeting them. We grant the petition in part and remand for a grant of relief under CAT.”
The Ninth Circuit thus found that the Board of Immigration Appeals (BIA) erred in denying CAT relief due to misassumptions about the threat of future torture to Ms. Avendano-Hernandez. Specifically, the court found that the BIA had conflated gender identity with sexual orientation and erroneously concluded that the passage of same-sex marriage laws in Mexico demonstrated a commitment to protecting the rights of transgender people.