Articles Tagged with Board of Immigration Appeals

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The US Court of Appeals for the Fifth Circuit recently remanded the Board of Immigration Appeals (BIA) to review its affirmation of a removal order against one Nadeem Ali, a Pakistani immigrant who entered the United States in 1991 without a visa. The CA recommended a review of the removal order after it found that the BIA failed to consider some provisions of the Immigration Nationality Act (“INA”), 8 U.S.C. § 1151, et seq., DHS regulations, and previous BIA decisions.

Case Background

After Ali entered the United States as an undocumented immigrant in 1991, the Department of Homeland Security initiated exclusion proceedings against the Pakistan native, who would be compelled to seek asylum on the grounds of political persecution. In an asylum hearing presided Immigration Judge Robert Brown, Ali submitted evidence to support his claims of facing political persecution in Pakistan as a member of an opposition party, experiencing kidnapping and torture in the hands of the government and a rival political party in separate incidents in 1982, 1989, and 1991. The IJ granted Ali’s application for asylum; he would receive lawful permanent resident (LPR) status.

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Edin Carey Avendano-Hernandez, a transgender immigrant from Mexico who has identified as a woman for the past decade, has been granted relief under the Convention Against Torture (CAT) after petitioning the Board of Immigration Appeals (BIA). Avendano-Hernandez also petitioned for withholding of removal, but was denied the petition because of a previous conviction for driving under the influence and causing bodily harm to another person.

The BIA originally also denied the petition for relief under CAT because of the conviction, but the Ninth Circuit panel ruled that the Board was wrong in this case because it “failed to recognize the difference between gender identity and sexual orientation”, as well as assuming that recent anti-discrimination laws put into effect in Mexico (Avendano-Hernandez’s home country) have made life safer for transgender individuals despite evidence to the contrary.

Transgender people in Mexico continue to face discrimination and violence based solely on their identity, including being barred from employment, financial insecurity and exclusion by family members who refuse to accept them. Avendano-Hernandez is no exception to discrimination. She says she knew she was different from a very young age and her family mistreated her – calling her names and physically abusing her – when they realized she didn’t want to act like a boy. This abuse continued and worsened as she got older, not only perpetrated by her family members but also classmates, clients at a nightclub she started work at, and members of the Mexican police and military.

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