On January 28, Jose* got the bad news. Inside the Boston Immigration Court, a handful of people scurried about, signing documents, refiling papers and murmuring amongst themselves. Jose froze. Not a flicker of emotion crossed his face as Judge Steven Day delivered his verdict.
Asylum: denied. Withholding of removal: denied. Relief under the Convention Against Torture (CAT): denied.
"I felt like they were going to let me stay here," Jose said after the fact. He's soft-spoken and slumps in his seat; he looks defeated by just the memory of that day. "I know that there are many cases [like mine]. I thought I was going to win, but that didn't happen."
Just one month before the verdict, Jose talked to his attorney, Rachel Benedict, through a thick pane of glass at a Massachusetts detention facility. He had admitted he was gay when she first started working on his case, but after a psychological evaluation that diagnosed him with gender dysphoria, he was ready to come out as transgender. He insists on maintaining his male appearance and pronouns for as long as he remains in detention, but his asylum claim had to be amended to include a well-founded fear of gender identity-based persecution in his home country of Mexico.
"If he has to go back to Mexico, he's going to have to try very hard to keep his gender and sexuality hidden from the rest of the world — or risk a lot of violence," said Benedict, who represented Jose for Mills & Born, LLP and has since opened her own practice.
In order to qualify for asylum, applicants like Jose must be residing outside their home country, prove a well-founded fear of persecution based on at least one of five protected grounds (race, religion, nationality, political opinion or membership in a particular social group), and demonstrate an inability or unwillingness by their country to protect them. Applicants have one year from their initial entry into the United States to apply.
They will beat me or kill me. For them, that would be imitating a woman. But I want to be a woman. I feel like a woman. I just feel like I was born that way.
Judge Day decided the assaults and homophobic name-calling Jose suffered in Mexico City amounted to harassment by private actors, but not necessarily persecution. In First Circuit courts, applicants must always be able to prove a clear "connection to government action or inaction" in order to qualify for asylum. Judge Day acknowledged Jose's credibility as a transgender individual but rejected the claim that Jose's "coming out" as transgender just a few weeks earlier constituted an exception to the one-year rule (Jose had been living in the US, off and on, for more than a decade).
"The respondent testified that he was reluctant to open up about his sexual orientation, but he did open up to an individual named Francisco [phonetic] in the spring of 2014," the written opinion states. "Regardless, the respondent knew of his sexual orientation as early as 2005 and chose not to pursue and asylum claim."
Further, Judge Day cited the legalization of same-sex marriage in Mexico as proof that the government will protect LGBTI (lesbian, gay, bisexual, transgender and intersex) individuals, despite Benedict's closing argument that brutal intolerance for gender nonconformists still pervades Mexican culture. Laws prohibit discrimination against the LGBTI population, but they're rarely enforced.
"I can't dress like a woman and walk down the street," Jose pleaded to me, his palms pressed together like in prayer. "They will beat me or kill me. For them, that would be imitating a woman. But I want to be a woman. I feel like a woman. I just feel like I was born that way."
"If you look at the history of immigration law in the past several decades it's really been a history of who we want," says Clem Lee, who is a staff attorney for Immigration Equality. "A lot of people are surprised to know that as recently as the 90s it was OK, according to immigration law, to turn people away at the airport simply for being gay or lesbian. As recently as 2010, having HIV was grounds to deny someone entry to the United States or deny them a green card."
Immigration judges all over the country are grappling with the issue of gender identity-based asylum claims. According to the Executive Office of Immigration Review, the national asylum grant rate hovered just below 50 percent in FY2015, yet the variation between courtrooms tells a vastly different story. In New York City, the grant rate was 84 percent, whereas Los Angeles only approved 27 percent. In Atlanta and Las Vegas, grant rates were 2 percent and 3 percent, respectively. Though the EOIR doesn't keep statistics on specific types of asylum claims, variances in case law and individual judges' understanding of LGBTI issues only exacerbates the problem for trans immigrants.
'If you look at the history of immigration law in the past several decades it's really been a history of who we want.'
Jose, who had been working as a waiter in a Mexican restaurant in a suburb of Boston before his arrest, is having his case heard in one of the most welcoming immigration courts in the country. Government data complied by TRAC shows that 73.6 percent of people in deportation proceedings in Boston (which falls within the First Circuit) are allowed to stay in the US. Unfortunately for Jose, that number drops to 24.9 percent for defendants who are held in detention during their trial proceedings. Less than 11 percent of Mexican detainees are allowed to stay.
The same data shows that California allows the most applicants to stay in the country (12,545 people in FY2016) of any state — although it's worth noting that only constitutes about 65 percent of applicants the state received this year. A historic case decided in San Francisco last year will only continue to improve the chances for transgender Latinas seeking relief.
In September of 2015, the Ninth US Circuit Court of Appeals granted Edin Avendano-Hernandez, a transgender Mexican woman, protection under the Convention Against Torture. Munmeeth Soni, Edin's lawyer, pointed to her client's brutal rape by Mexican police and military officials as proof of persecution. Soni further argued that the staggering rate of transgender murders in Mexico (regardless of same-sex marriage laws) provided compelling evidence that the government was not doing enough to protect transgender women.
In the written opinion, Judge Jacqueline Nguyen agreed that "while the relationship between gender identity and sexual orientation is complex, and sometimes overlapping, the two identities are distinct." She continued to point out that "significant evidence suggests that transgender persons are especially visible, and vulnerable, to harassment and persecution due to their often public nonconformance with normative gender roles."
According to a 2013 report by Transgender Europe, Mexico has the second highest number of trans murders in the world. A 2009 study estimated that 80 percent of homophobic murders go unpunished in Mexico. Beyond death, The International Human Rights Clinic, Human Rights Program of Harvard Law School, Global Rights, and the International Gay and Lesbian Human Rights Commission (IGLHRC) have highlighted the frequency that transgender women are targeted for "abuse and extortion on the part of state officials."
Though both Soni and Benedict cited these conditions for transgender women in Mexico, the Massachusetts and California judges came to vastly different conclusions.
"The general sentiment [among First Circuit judges] is 'the Ninth Circuit has its own way of doing things, it's super liberal, and we're not going to follow that,'" Benedict says.
Soni, who represents LGBTI immigrants regularly, also acknowledged the role jurisdiction can play in making an asylum decision. Because the Santa Ana City Jail in Orange County, California, contains the only LGBTI housing unit in the country, the Ninth Circuit sees far more transgender asylum seekers than other courts. Edin's case can help inform judges ruling on similar cases in other states, but the precedent is binding only in California, Arizona, Nevada, Oregon, Washington, Idaho, Montana, Hawaii, Alaska, and Guam.
Clem Lee and Atlanta-based attorney Jeffrey Fisher represented Estrella Antonio-Sanchez, another trans Mexican woman in Georgia, just a few months before the Ninth Circuit's ruling. Estrella sought to prove the distinction between gay and transgender despite unfavorable odds: The Stewart Immigration Court in Lumpkin, GA. has the highest deportation rate in the country. According to the EOIR report, the court approved a mere 5 percent of asylum claims in 2015.
A February 4 ruling from the Board of Immigration Appeals has brought Estrella to Judge Dan Trimble's courtroom once more after having her gender identity-based asylum claim denied twice before. According to court documents, the Board found that "her gender transition from male to female is a changed circumstance excusing the filing deadline" (Estrella filed for asylum approximately seven years after arriving in the United States) and disputed the "clearly erroneous [...] finding that the respondent's transgender identity was not 'one central reason' for the harm she experienced in Mexico."
"A lot of it boils down to training," Lee says. "Unlike asylum officers, who receive training on best practices in adjudicating sexual orientation and gender identity-based claims, immigration judges don't receive the same training and it can really lead to disparate results in outcomes for grant rates... Also, one of the reasons for the disparities we're seeing has to do with access to council. Unlike in a criminal context, in immigration courts people don't automatically get attorneys at the cost of the government."
Statistics show that applicants without legal representation are significantly less likely to have their asylum claim approved. Though Jose, Edin, and Estrella all had legal teams, their cases are not typical. Beyond prohibitive costs, many asylum-seekers don't get lawyers because they're geographically inaccessible. It takes Estrella and her lawyers more than two hours to drive from Atlanta to Lumpkin for court appearances. In Massachusetts, Jose was being held in a detention facility an hour and a half outside of Boston. His lawyers made the 64-mile drive from their Everett, MA, office whenever they want to prep him for his case.
In court documents, Jose stated multiple times that he would return to Mexico if he could. He has no family in the United States, and he had to miss his mother's funeral in San Esteban Tizatlan, Mexico, because he feared for his safety. Jose told the court he was "called names like 'maricon' (faggot) on a nearly daily basis" as a teenager, and he was beaten more times than he could count. He has returned to Mexico since his initial arrival in the United States nearly 16 years ago, and reported even more threats and assaults during his visits. Most notably, while in San Esteban Tizatlan to care for his ailing mother in 2004, he was nearly beaten to death by five men while out on a run.
"It leaves a mark on you... a scar," Jose said, referring to more than just the missing teeth he suffered at the hands of his machista peers. "You're isolated. If your brain is soft, you even think about suicide because of the rejection from the community."
Though he acknowledges that the US is more accepting of LGBTI people than Mexico, he is still wary of discussing his sexual orientation or gender identity with anyone except his lawyers and best friend, Francisco. He never actually uses the word "transgender," (or "transgénero") when he speaks to me, but rather describes himself as a homosexual and occasionally adds that he "feels like a woman" or "likes to dress like a woman." He's basically getting a crash course in LGBTI rights and the Trans Lives Matter Movement from lawyers and court documents.
You're isolated. If your brain is soft, you even think about suicide because of the rejection from the community.
"I think it's important that people understand that the lives of trans people matter," said Bamby Salcedo, a trans-rights activist and CEO of the TransLatin@ Coalition. "It's important to understand the violence we encounter in our countries and the reasons we have to go somewhere else. It's not easy for us to leave our countries, it's not easy for us to leave everything that we know."
Salcedo's organization conducted a study that found just that. More than 50 percent of respondents were trans Mexican women living in the United States and 84 percent cited violence as at least one reason for leaving their country of origin.
Though Jose's asylum claim was denied months ago, he hasn't been deported yet. His lawyers have filed a notice of appeal with the Board of Immigration Appeals, although it could be anywhere between three months and a year before his case is heard again. He has been relocated to a different (and arguably nicer) detention center in Massachusetts, but otherwise not much has changed for him.
If he is eventually granted asylum, Jose hopes to officially come out and start seeing a therapist who can help him work through the trauma he faced in Mexico. He wants to finally meet someone who understands his gender dysphoria. If he is denied again, his next step will be to take his case to First Circuit Court of Appeals. If he's deported, he's barred from applying for asylum in the United States for the rest of his life.
It's a high-stakes gamble, but Jose feels it's his only option.
"I don't know how much time God has left for me in life. If I [only] live one more year, I guess I want to live happy. That's all that's important to me."
* Name has been changed for the protection of the source. At his request, he is still being referred to with male pronouns.