A US appeals court has granted asylum to an undocumented transgender immigrant under international anti-torture conventions, saying she would almost certainly face more sexual and physical abuse because of her gender identity if returned to her native Mexico.
The 9th Circuit Court ruling Thursday overturns a Los Angeles-based immigration court decision in 2013 to deport Edin Avendano-Hernandez to Mexico where she had previously been "raped, forced to perform oral sex, beaten severely, and threatened" by numerous individuals including family, uniformed on-duty police officers, and members of the military.
"Mexico suffers from an epidemic of unsolved violent crimes against transgender persons," 9th Circuit Judge Jacqueline Nguyen wrote in the 20-page ruling. "Avendano-Hernandez, who takes female hormones and dresses as a woman, is therefore a conspicuous target for harassment and abuse."
Zenen Jaimes, policy analyst for youth-led immigration network United We Dream, told VICE News the appeals court ruling is "a very positive step forward" and hopes that more judges will take gender expression into account when making decisions on whether to grant transgender immigrants asylum in future.
Avendano-Hernandez was born in a rural town in Oaxaca, Mexico. From a very young age, she identified as a girl, even though she had been born biologically male. Her behavior and appearance were feminine and she felt more comfortable wearing her sister's clothes than her own, her lawyers said. Because of her gender nonconformity, Avendano-Hernandez was physically and sexually abused as a child — abuse that continued into her adult life.
In 2000, Avendano-Hernandez sought refuge in US, settling in Fresno, California. But after being convicted twice for driving under the influence of alcohol, Avendano-Hernandez was deported back to Mexico in 2007. There, she suffered more abuse, this time at the hands of authorities.
In its ruling, the 9th Circuit Court found that Avendano-Hernandez was subject to beatings, verbal abuse, and rape, once by members of the Mexican police near her family's home in Oaxaca in 2008, and again that same year by members of the military as she tried to enter the US illegally for the second time.
Avendano-Hernandez did eventually manage to enter the US that year, but was arrested and faced possible deportation again when authorities caught up with her in 2011. At that time, she applied for asylum, citing Article 3 of the Convention Against Torture which says a person cannot be extradited to another state where "there are substantial grounds for believing that [s]he would be in danger of being subjected to torture."
When the Board of Immigration Appeals struck down her request in 2013, Avendano-Hernandez appealed her case.
In the appeals court ruling, Nyugen found that the lower court had failed to differentiate between gender identity and sexual orientation in making its decision, and that Judge Lorraine J. Muñoz had mistakenly believed that Avendano-Hernandez would be safe under Mexican laws intended to protect the gay and lesbian community.
"While the relationship between gender identity and sexual orientation is complex, and sometimes overlapping, the two identities are distinct," Nguyen wrote in the ruling. "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 immigration judge also wouldn't allow Avendano-Hernandez to use female pronouns in court, despite Avendano-Hernandez having identified as a woman for more than a decade, the appeals court said. As a result, Nguyen said the immigration judge didn't fully grasp the extent of the plight Avendano-Hernandez faced in Mexico.
Jaimes said that while the US grants asylum to approximately 90 percent of the roughly 200 LGBT applicants seeking to stay the US each year, the concept of "gender expression" remains "difficult for people to comprehend."
"These are new ideas for a lot of people" Jaimes added.
According to a 2013 report by the UCLA Williams Institute, there are at least 267,000 undocumented LGBT immigrants living in the US, 70 percent of whom are Hispanic. The National Center for Transgender Equality estimates that between 15,000 and 50,000 of undocumented LGBT immigrants are transgender.
Avendano-Hernandez is "ecstatic" about this week's decision, her lawyer, Munmeeth Soni, told The Associated Press. "The fear was constantly hanging over her head that she might have to one day turn herself in to return to Mexico."