In September, the Ninth Circuit Court of Appeals held that an illegal alien, although properly found to be a danger to the community, should not be removed from the United States because he considers himself to be a transgender woman. Finding that Mexico is not in the progressive vanguard in embracing transgender identity, the court concluded that the alien would likely be tortured at home and thus could invoke the protection of the Convention Against Torture (CAT).
Edin Avendano-Hernandez first illegally entered the United States in 2000. While here, he began taking female hormones and “lived openly as a woman for the first time.” He also drank a bit. Avendano-Hernandez picked up his first DUI in March 2006. Four months later, he drank and drove again, and was involved in a head-on collision causing serious injuries to the other driver. This second offense led to a felony conviction in September 2006 for driving while having a .08 percent or higher blood-alcohol level and causing injury to another.
Avendano-Hernandez was sentenced to 364 days incarceration and three years of probation. After his release from custody, he was removed to Mexico in March 2007 under a stipulated order of removal. In May 2008, he illegally entered the United States again. He was arrested on a probation violation in 2011, and authorities began another round of removal proceedings.
Avendano-Hernandez applied for withholding of removal and CAT relief. Under Article 3 of this multinational treaty, “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
Avendano-Hernandez argued that he would face torture if returned to Mexico. He explained that since childhood his appearance and behavior had been very feminine, and he liked to wear makeup, dress in his sister’s clothes, and play with his sister and female cousins rather than with boys his age. This behavior led to fights in which Avendano-Hernandez was on the losing end. Taking female hormones and living as a woman only made matters worse. Avendano-Hernandez said that on two occasions Mexican cops and soldiers raped him.
The Board of Immigration Appeals (BIA) denied relief on the grounds that Avendano-Hernandez 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 his torture. The BIA concluded that the policemen and soldiers who allegedly raped Avendano-Hernandez were rogue or corrupt officers, and that the Mexican government was not persecuting him. As a felon convicted of a serious crime, the BIA approved his removal from the United States.
On appeal, the Ninth Circuit Court of Appeals reversed. It agreed with the BIA that the nature of Avendano-Hernandez’s conviction justified “the presumption that the convicted immigrant is a danger to the community.” Nonetheless, it found that CAT relief was appropriate.
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.
The ruling found that “significant evidence suggests that transgender persons are often especially visible, and vulnerable, to harassment and persecution due to their often public nonconformance with normative gender roles.” The court conceded that Mexico City legalized gay marriage and adoption in December 2009, and the Mexican Supreme Court has held that such marriages must be recognized by other Mexican states. Such progressive steps, however, are insufficient: “But laws recognizing same-sex marriage may do little to protect a transgender woman like Avendano-Hernandez from discrimination, police harassment, and violent attacks in daily life.”
Because “transgender persons are caught in the crosshairs of both generalized homophobia and transgender-specific violence and discrimination,” the court granted CAT relief. In doing so, it also gave other illegal aliens some helpful tips on how to thwart removal proceedings in the United States.
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