9th Circuit: Convention Against Torture applies to transgender deportees

The Ninth US Circuit Court of Appeals has overruled an immigration judge and the US Board of Immigration Appeals in the case of transgender woman Edin (Carey) Avendano-Hernandez’s deportation.

Born in a small town in southern Mexico, Avendano-Hernandez started identifying herself as female at age 5 or 6 and was beaten by her father and schoolmates, and raped by her older brothers and cousins, the court said. She dropped out of high school at 16 and moved to Mexico City, where she was harassed by customers of a nightclub where she worked. After she returned home to care for her dying mother, an older brother threatened her with death.

So Edin entered the US without documentation, settling in Fresno.  She began hormone therapy in 2005.  Unfortunately, a drinking problem resulted in two DUI convictions, one of them of the felony variety.  So she was deported.  

One evening in southern Mexico, the court said, four uniformed police officers beat and raped her. She headed for the border, but was halted by a group of uniformed Mexican soldiers, who called her names and laughed as one officer forced her to perform oral sex, the court said. She made it back to Fresno in 2008, but was arrested three years later and held for deportation.

She appeared before an Immigration judge who insisted on using male pronouns to refer to Edin and told her she was “still male.”  The US Board of Immigration Appeals got the pronouns right but determined that improvement in Mexican gay and lesbian legal protections would extend also to transgender people.

Not only did judge Lorraine J. Muñoz misunderstand the concept of gender identity, she also refused to allow attorneys representing transgender clients to refer to them by their preferred gender pronouns, the court said Thursday.

In one case, Muñoz said that referring to a transgender woman by her preferred gender pronouns was like actor Paul Reubens requesting to use his stage name Pee-wee Herman, according to one lawyer’s testimony in the appeals case reviewed by Fusion.

The [immigration judge] 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

U.S. government reports show that police specifically target the transgender community for extortion and sexual favors, and that Mexico suffers from an epidemic of unsolved violent crimes against transgender persons.  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.

–Judge Jacqueline Nguyen, writing for the court in a 3-0 ruling

The court overruled Munoz’s decision and granted Convention Against Torture protection to Avendano-Hernandez.

Two other cases involving transgender women denied by Muñoz were also sent back to the immigration court for review.

From fiscal years 2009 to 2014 Muñoz ruled on 643 asylum claims, denying 93.8%. Muñoz’s denial rate is one of the highest in the country, according to an analysis of 270 judges tracked by the Transactional Records Access Clearinghouse, a nonpartisan research center out of Syracuse University. Compared to Muñoz’s denial rate of 93.8%, nationally during this same period, immigration court judges denied 48.5% of asylum claims.

Since the only immigration pod in the country that houses LGBT people is in Santa Ana, Judge Monoz hears most of the immigration cases involving transgender people.

Immigration judge Muñoz has been infamous in the LGBTQ immigration legal community for her explicit hostility against trans women asylum seekers, most of whom had fled to the U.S. after surviving horrific violence only to experience shocking cruelty by her.

–Olga Tomchin, immigration attorney, National Day Laborer Organizing Network

Transgender individuals seeking release will have to be regarded according to their gender identity and gender expression. They won’t have to experience this hostility and rejection towards their gender.

–Munmeeth K. Soni, attorney at the Public Law Center who represented Avendano-Hernandez

The [Board of Immigration Appeals] primarily relied on Mexico’s passage of laws purporting to protect the gay and lesbian community. The agency’s analysis, however, is fundamentally flawed because it mistakenly assumed that these laws would also benefit Avendano-Hernandez, who faces unique challenges as a transgender woman.

–Judge Nguyen

Carey and other transgender individuals who flee their home countries to escape persecution and torture face numerous hurdles before they can seek relief here.

We are relieved that Carey will not have to return to Mexico to face further torture, and we hope that this decision will eliminate some of those same legal challenges for others in Carey’s desperate situation.

–Andrea Ruth Bird, Manatt, Phelps and Phillips, LLP, who argued Carey’s case before the 9th Circuit

1 comment

    • Robyn on September 5, 2015 at 00:02

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