Regardless of your gender identity, you have the right to remain in the country

Federal court rules that a Mexican transgender citizen is protected from deportation under the UN Convention against Torture.

Photo by Junkee.

A transgender immigrant was granted protection under the UN Convention against Torture by a three-panel United States Court of Appeals for the Ninth Circuit.  The Court found on Thursday, September 3, 2015, that Edin Carey Avendano-Hernandez had a right to remain in the United States, even though she is in the country illegally.  This ruling comes contrary to the findings of the Board of Immigration Appeals, which ruled to have Edin deported to Mexico.

Edin continued to suffer from abuse into her adolescent years, and after her mother’s death in July 2000, she unlawfully entered the United States

Edin Avendano-Hernandez, a transgender woman from Oaxaca, Mexico, suffered from “years of relentless abuse that included beatings, sexual assaults, and rape” wrote Judge Nguyen in the opinion for the Court.  Edin continued to suffer from abuse into her adolescent years, and after her mother’s death in July 2000, she unlawfully entered the United States.  Edin continued to live in Fresno, California, and in 2005 began taking female hormones and lived openly as a woman for the first time.

However, Edin began struggling with alcohol abuse, and was convicted of driving under the influence twice, which she committed on March 6, 2006, and July 4, 2006. The July 4th offense involved a head-on collision that resulted in injuries to both Edin and the other driver.  Under California Vehicle Code § 23153(b), because Edin drove while having a blood alcohol level over .08 percent, and caused injury to another, she committed a felony.  As a result, she was sentenced to a year in prison, and three years of probation.  In 2007, after being released from prison, she was deported to Mexico.

Upon her arrival back in Mexico Edin again suffered harassment and was later raped and sexually assaulted by members of the Mexican police and military.  After this horrendous assault, Edin again attempted to enter the United States unlawfully.  In the process of crossing the border, a group of uniformed Mexican military officers harassed her, and one officer forced her to perform oral sex while the others watched.  Edin eventually reentered the United States in May 2008.

The immigration judge denied Edin’s application for withholding of removal based on her 2006 felony conviction

In 2011, Edin was arrested for probation violation for failing to report to her probation officer.  Consequently, Edin was placed in removal proceedings, which ended up in immigration court so that Edin could defend herself against removal and establish a right to remain in the U.S. under the UN Convention against Torture (CAT).  The immigration judge denied Edin’s application for withholding of removal based on her 2006 felony conviction.

Under immigration law, 8 U.S.C. § 1231(b)(3)(A), the government is restricted from removing an immigrant to a country where her life or freedom would be threatened.  However, like with every law, there are exceptions to the rule.  Under § 1231(b)(3)(B)(ii), the protection under subsection A does not apply to immigrants who have been “convicted by a final judgment of a particularly serious crime”, thus “a danger to the community of the United States.”  Therefore, because Edin was convicted of felony driving under the influence after injuring another person while driving drunk, her conviction falls under the exception.

Edin then appealed to the Board of Immigration Appeals (BIA), the highest administrative body for interpreting and applying immigration laws.  Conducting a “paper review” of Edin’s case, the BIA reached the same conclusion as the immigration judge in regards to her felony conviction barring her from withholding of removal.  Addressing Edin’s CAT claim, the BIA likewise denied relief stating that Edin failed to “demonstrate[] that a member of the Mexican government acting in an official capacity will more likely than not ‘consent’ to or ‘acquiesce’ in her torture”. [Matter of Avendano-Hernandez, File No. A099823350, at 3 (BIA Oct. 15, 2013).]

Although the Court of Appeals for the Ninth Circuit agreed with the finding that Edin was ineligible for withholding of removal due to her felony conviction, the Court disagreed with the BIA’s finding for Edin’s relief under CAT

Although BIA decisions are binding on all Department of Homeland Security Officers and immigration judges, its decisions are subject to judicial review by federal courts and can be overruled.  Although the Court of Appeals for the Ninth Circuit agreed with the finding that Edin was ineligible for withholding of removal due to her felony conviction, the Court disagreed with the BIA’s finding for Edin’s relief under CAT.

Under CAT, an immigrant is protected from deportation where “there are substantial grounds for believing that [s]he would be in danger of being subjected to torture.” Torture is defined by CAT as “severe pain or suffering” that is “intentionally inflicted on a person” for many reasons included those based on discrimination, when that “pain or suffering is inflicted by or at the instigation of or with consent or acquiescence of a public official.”   In determining these grounds for relief, “all relevant considerations” are to be taken into account, including “the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”

The immigration judge and the BIA seem to agree that the assaults and rapes of Edin rise to the level of torture, writes Judge Nguyen.  Not only can rape constitute torture, but the facts that Edin was singled out because of her transgender identity and presumed sexual orientation also increased her assaults to a level of torture for the purposes of CAT.

Where the Court disagrees with the BIA is with its conclusion that there is no evidence that any Mexican public official participated or consented to the prior acts of torture committed against homosexuals or transgender people.  However, as the opinion points out, Edin was in fact, and provided credible testimony to show she was raped and assaulted by Mexican public officials who were in uniform.  The Ninth Circuit has specifically held that uniformed, on-duty police and military are “public officials for CAT purposes.

Similarly, the Court disagreed with the BIA’s conclusion that Edin failed to show a likelihood of future torture.  As previously ruled by the Ninth Circuit in Nuru v. Gonzales, past torture is the principal factor analyzed when an immigrant seeks relief under CAT.  As Judge Nguyen explains, unless there are changed circumstances, if someone was tortured in the past and then fled the county, it is likely that she will be tortured again if forced to return.

Judge Nguyen points out that the BIA’s analysis is flawed because Edin is a transgender woman, and sexual orientation and gender identity are not the same concept

The BIA relied on Mexico’s new laws that are aimed at protecting the gay and lesbian community to conclude that Edin will no likely suffer from assaults in Mexico in the future.  However, Judge Nguyen points out that the BIA’s analysis is flawed because Edin is a transgender woman, and sexual orientation and gender identity are not the same concept.  Therefore, the laws BIA claim will protect Edin in Mexico do not extend protection to her gender identity, and thus do little to protect her from discrimination, harassment, and violent attacks in a country that evidence shows police specifically target the transgender community for extortion and sexual favors.

Based on the record, the Court of Appeals for the Ninth Circuit found that Edin is entitled to a grant of CAT relief on remand.  The Court concluded its opinion stating that the “unique identities and vulnerabilities of transgender individuals must be considered in evaluating a transgender applicant’s asylum, withholding of removal, or CAT claim.”  This statement, along with others like U.S. Secretary of Defense Ashton Carter’s recent announcement of a comprehensive plan to begin allowing transgender troops to serve in the military, illustrates that our country is moving towards greater acceptance of our transgender community.

Ana Hopper, Editor-in-Chief Emeritus
About Ana Hopper, Editor-in-Chief Emeritus (33 Articles)
Ana Hopper is a 2016 Campbell Law graduate and served as the Editor-in-Chief of the Campbell Law Observer for the 2015-2016 academic year. She is originally from Winston-Salem and graduated from the University of North Carolina at Charlotte in 2012 with a Bachelor of Arts in Political Science and Sociology. The summer following her first year of law school, Ana worked as a research assistant for Professor Amy Flanary-Smith. Ana also interned at the Criminal Appellate Section of the Department of Justice her second year, and at the New Hanover District Attorney's Office as an intern the summer before her third year. She served as a Legal Research and Writing Scholar, Vice President of BLSA, and Community Chair of Lambda during her time at Campbell.
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