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Transgender Migrant Granted Relief Under Convention Against Torture

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.

When she finally fled to the United States, Avendano-Hernandez started to take female hormones and openly identify as a woman, something that was impossible for her to do in Mexico due to the harassment she faced. Unfortunately, she also struggled with alcohol abuse which led to her DUI conviction and the subsequent denial of her petition for withholding of removal. This was also the basis of the denial for her petition for relief under CAT, but due to misrepresentation by the BIA, this petition was granted in part by the Ninth Circuit.

The BIA concluded that Avendano-Hernandez, in her petition, did not provide sufficient evidence that the Mexican government would consent to or acquiesce in her torture should she return home. The panel ruled that this conclusion was incorrect, because the BIA attempted characterize the Mexican officials involved in Avendano-Hernandez’s torture as rogue or corrupt individuals, not as a group. This is despite the officers being in uniform and on the job when the abuse occurred, which is enough evidence under CAT to be granted relief (i.e. when petitioning, “an applicant for CAT relief need not show that the entire foreign government would consent to or acquiesce in [her] torture”).

If you are a transgender immigrant facing discrimination or potential abuse and hardship in your home country, please don’t hesitate to get in touch with Daniela Lyttle at Lyttle Law Firm, either through the website or by calling 215-512-5225.

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