Wednesday, September 30, 2015

Likelihood of torture by Mexican police/army protects transgender woman from deportation to Mexico from the US

On September 4, 2015, the U.S. Court of Appeals for the Ninth Circuit held that the UN Convention Against Torture (CAT) protected a transgender illegal immigrant from deportation back to Mexico.

Edin Avendano-Hernandez was born male in Mexico and claims to have been raped by his father and brothers. In 2005, he illegally entered the US and resided in Fresno, California, where he began taking female hormones and living openly as a woman.  In 2006, she committed two separate drunk driving offenses, the second of which injured two people and resulted in a felony conviction.  She was sentenced to 364 days in prison and 3 years of probation.  After serving a year in jail, she was deported back to Mexico in 2007.

Back in Mexico, Avendano-Hernandez claims to have been subjected again to harassment from family and neighbors and to have been raped by members of the Mexican police and army in two separate incidents.  She illegally entered the US again in May 2008 and returned to Fresno.  She was arrested in 2011 for violating the terms of probation imposed in her 2006 felony offense for failing to report to her probation officer.  She petitioned for sanctuary in the US under the CAT, alleging that deporting her would violate the CAT because she would more likely than not experience torture at the hands of Mexican authorities.  The immigration judge and the Board of Immigration Appeals (BIA) both rejected her arguments on the grounds that she had committed a serious crime and was not likely to face official torture.

As regards the likelihood of renewed torture if she was returned to Mexico, a three-judge panel of the Ninth Circuit Court of Appeals overturned the BIA’s decision that Avendano-Hernandez had failed to provide credible testimony that she was sexually assaulted by police and military officers in uniform.  It is noteworthy that the evidence that she was raped and tortured in Mexico is based entirely on her own claims, which were deemed “credible” by the immigration judge. The Court also found that the BIA’s finding that Mexican laws protect gay and lesbian citizens was flawed because it mistakenly assumed that these laws would benefit Avendano-Hernandez, who faces unique challenges as a transgender woman and was therefore based on its factual confusion as to what constitutes transgender identity.

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