A federal appeals court on Thursday ruled a transgender woman who fled Mexico to escape life-long persecution is eligible for relief under laws granting refuge for people who experience torture, establishing a precedent that could aid those fleeing violence based on gender identity in their home countries.
A three-judge panel on the U.S. Ninth Circuit Court of Appeals determined Edin Avendano-Hernandez, an undocumented immigrant placed in holding in the process for removal back to Mexico, can obtain relief under Article 3 of the Convention Against Torture. U.S. Circuit Judge Jacqueline Nguyen, an Obama appointee, wrote the 20-page decision on behalf of the court.
“The unique identities and vulnerabilities of transgender individuals must be considered in evaluating a transgender applicant’s asylum, withholding of removal, or CAT claim,” the decision says.
After allegedly enduring harassment, rape and death threats growing up in rural Mexico for her lack of gender conformity, Avenando-Hernandez sought refuge in 2000 by unlawfully entering the United States and living in Fresno, Calif., where she began taking female hormones and living as a woman.
Struggling with alcohol abuse, Avendano-Hernandez was twice convicted of driving under the influence. In 2006, her second offense, which resulted in a collision that injured another person, led to a felony conviction, jail time and removal to Mexico.
Back in Mexico, harassment and violence against Avendano-Hernandez continued. One evening, a group of four uniformed officers “beat her, forced her to perform oral sex and raped her,” according to the court decision. That experience prompted her to flee Mexico almost immediately.
Attempting to cross the border with a group of migrants a few days later, Avendano-Hernandez’s troubles continued when they encountered Mexican military officers.
“Though the leaders of the migrant group had asked Avendano-Hernandez to dress differently to avoid attracting attention at the border, she was still visibly transgender, as she wore her hair in a ponytail and had been taking female hormones for several years,” the decision says. “Calling her a ‘faggot,’ the officers separated Avendano-Hernandez from the rest of her group. One of the officers forced her to perform oral sex on him, while the rest of the group watched and laughed. The officer then told her to ‘get out of his sight.'”
After these trials, she returned to the United States and Fresno in 2008, but was arrested for violating the terms of her probation for the 2006 the felony charge. She was placed in holding and removal proceedings began.
An immigration judge denied her application on the basis of withholding from removal and relief under Conventions Against Torture — a decision that was upheld by the Board of Immigrations Appeals. Although the Ninth Circuit upheld the decision to deny withholding from removal, the three-judge panel instructed the agency to grant relief under the Convention Against Torture.
The Ninth Circuit determined the immigration judge and BIA was correct in determining Avendano-Hernandez is ineligible for withholding from removal. Her attorney contended her felony wasn’t serious, but it resulted in injury to another person. However, the appeals court determined the harassment and violence she endured constitutes torture, granting her relief under this portion of her claim.
“We reject the government’s attempts to characterize these police and military officers as merely rogue or corrupt officials,” the decision says. “The record makes clear that both groups of officers encountered, and then assaulted, Avendano-Hernandez while on the job and in uniform. Avendano-Hernandez was not required to show acquiescence by a higher level member of the Mexican government because ‘an applicant for CAT relief need not show that the entire foreign government would consent to or acquiesce in [her] torture.’ It is enough for her to show that she was subject to torture at the hands of local officials.”
Although the immigration judge denied Avendano-Hernandez relief because of new laws in Mexico against discrimination based on sexual orientation, such the legalization of same-sex marriage, the Ninth Circuit determined these developments don’t affect transgender people, who reportedly experience high rates of harassment and violence in the country. According to Immigration Equality, the immigration judge handling Avendano-Hernandez’s case wrongly referred to her as a gay man instead of a transgender woman.
Representing Avendano-Hernandez in her case were the Santa Ana, Calif.-based Public Law Center and the D.C.-based law firm Manatt, Phelps & Phillips, LLP.
Transgender advocates hailed the decision for establishing precedent in the Ninth Circuit that would benefit individuals seeking refuge in the United States after they face discrimination overseas on the basis of gender identity.
Keren Zwick, managing attorney for the Chicago-based National Immigration Justice Center’s LGBT Immigrant Rights Initiative argued as a friend-of-the court on behalf of Avendano-Hernandez and hailed the decision.
“This decision is overwhelmingly positive and sets a precedent that we hope eliminates some of the unnecessary hurdles transgender people face when they flee to the United States to escape persecution,” Zwick said. “The ruling is particularly timely as the government moves forward with plans to increase and consolidate its detention of transgender women at the Adelanto Detention Center in California, which will limit access to the kind of legal counsel that proved critical in ensuring Ms. Avendano-Hernandez was able to navigate the complex legal system and overcome the discrimination she faced in the immigration court system.”
According to the National Immigrant Justice Center, the Ninth Circuit at the same time it issued a decision in the Avendano-Hernandez delivered unpublished rulings granting relief to two other transgender Mexican women who faced similar hurdles when seeking protection before a California immigration judge.
Seeking asylum in the United States is different from seeking relief under the Convention Against Torture, which has more stringent requirements. To seek relief under the Convention Against Torture, applicants need to prove it is more likely than not they would be persecuted or tortured in their home country. Despite the higher bar, there are advantages to seeking relief under this law because aggravated felons are eligible for claims, according to Immigration Equality.
Aaron Morris, legal director of Immigration Equality, also praised the decision, saying it “requires the federal government to recognize and respect the gender identity of women like Ms. Avendano-Hernandez.” Immigration Equality aided Avendano-Hernandez in her litigation.
“This sentiment should be extended to all areas of immigration law, and especially to immigration detention facilities,” Morris added.