Transgender Woman’s Deportation Blocked

PASADENA, Calif. (CN) - A transgender Mexican woman who was beaten and raped by the Mexican police and military must be granted relief under the Convention Against Torture, the Ninth Circuit ruled Thursday.

Edin Avendano-Hernandez was found ineligible for withholding of removal from the United States by the Board of Immigration Appeals because she was convicted for driving under the influence of alcohol and causing injury to other drivers in a head-on collision, which the board found to be a "particularly serious crime."

The Circuit upheld the decision there, but it found that the board should not have denied Avendano-Hernandez's application for Convention Against Torture (CAT) relief because the immigration judge "failed to recognize the difference between gender identity and sexual orientation."

According to the panel's 20-page opinion, the immigration judge refused to allow the use of female pronouns because she considered Avendano-Hernandez to be "still male," even though she dresses as a woman, takes female hormones and has identified as a woman for more than a decade.

Avendano-Hernandez, who was beaten and raped by her brothers growing up because of her gender identity and constantly harassed in a community that considered her a "faggot," fled to the United States after her brother threatened to kill her if she did not leave town, the opinion said.

She settled in Fresno in 2000 and began taking female hormones in 2005, living openly as a woman for the first time, according to the opinion.

But she struggled with alcohol abuse, which led to her conviction for driving under the influence of alcohol and resulted in her removal to Mexico.

Shortly afterward, Avendano-Hernandez was kidnapped by four uniformed Mexican police officers who drove her to an unknown location where they beat her, forced her to perform oral sex and raped her while shouting homophobic slurs, the opinion said. After the attack, the officers said they knew where she lived and would hurt her family if she told anyone about what happened.

Avendano-Hernandez fled Mexico again almost immediately, only to be detained at the border by a group of Mexican military officers. One of whom called her a "faggot," separated her from the rest of the group of migrants and forced her to perform oral sex on him before letting her continue across the border, the opinion said

She successfully reentered the U.S. in 2008 but was arrested three years later for violating her probation, according to the opinion.

Writing for the three-judge panel, Circuit Judge Jacqueline Nguyen said the immigration judge, in denying Avendano-Hernandez's petition for CAT relief, was "ironically exhibiting some of the same misconceptions about the transgender community that Avendano-Hernandez faced in her home country."

"Rape and sexual abuse due to a person's gender identity or sexual orientation, whether perceived or actual, certainly rises to the level of torture for CAT purposes," Nguyen wrote.

She rejected the government's "attempts to characterize these police and military officers as merely rogue or corrupt officials," since the officers assaulted Avendano-Hernandez while on the job and in uniform.

Nor did she accept the board's conclusion that Avendano-Hernandez failed to show a likelihood of future torture, an argument that "primarily relied on Mexico's passage of laws purporting to protect the gay and lesbian community."

"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," Nguyen wrote.

"Country conditions evidence shows 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," she continued, remanding the case to the board to grant CAT relief.

Andrea Bird, who represented Avendano-Hernandez, said in an email that she was very happy with the appellate court's decision.

"Transgender individuals that flee their home countries to escape persecution and torture face numerous hurdles before they can seek relief here," she said.

"We are relieved that she will not have to return to Mexico to face further torture, and we hope that this decision will eliminate some of those hurdles for others."

The government could not be reached for comment on Thursday.

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