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Federal Appellate Court Stops Transgender Immigrant’s Deportation Because of Conditions in Home Country

By Apsu09 (Own work) [GFDL ( or CC BY 3.0 (], via Wikimedia CommonsThe U.S. immigration system offers certain protections to immigrants who would face persecution because of certain characteristics in their country of origin. Immigrants can affirmatively apply for asylum, but if they are already involved in removal proceedings or subject to an order of deportation, they must submit a defensive petition for asylum or withholding of removal through the immigration courts. The Ninth Circuit recently issued a ruling suspending the deportation of a transgender Mexican immigrant, finding that she is likely to face torture if she were to return to Mexico. Avendano-Hernandez v. Lynch, No. 13-73744, slip op. (9th Cir., Sep. 3, 2015). The case involves both federal immigration law and an international treaty.

The respondent is originally from the state of Oaxaca, Mexico. She began expressing her female gender identity at an early age. The Ninth Circuit’s ruling describes “years of relentless abuse that included beatings, sexual assaults, and rape,” Avendano-Hernandez, slip op. at 4, including physical and sexual abuse by members of her own family. She unlawfully entered the U.S. in 2000 from Mexico after one of her brothers threatened to kill her if she did not leave. She “struggled with alcohol abuse,” id. at 6, and was convicted of driving while intoxicated twice in 2006. After serving a sentence for felony DWI, she was deported in 2007.

Back in Mexico, the respondent again faced harassment and abuse from her family and others. She returned to the United States in 2008 after she was raped by a group of uniformed police officers. She was sexually assaulted by a uniformed military officer on the way to the U.S. In 2011, she was arrested for violating probation in her 2006 DWI case and placed in removal proceedings again.

The respondent applied for withholding of removal and relief under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Convention against Torture or “CAT.” Under CAT, “torture” includes “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person…for any reason based on discrimination of any kind,” provided that it occurs with some form of official approval. CAT at Art. 1(1), 8 C.F.R. § 1208.18(a)(1).

The immigration judge and the Board of Immigration Appeals (BIA) denied the respondent’s petition, finding that her DWI conviction constituted a “particularly serious crime” barring her from withholding of removal under 8 U.S.C. § 1231(b)(3)(B)(ii), and that she had failed to demonstrate the involvement of public officials in her torture under CAT.

The Ninth Circuit affirmed the BIA’s ruling that the respondent does not qualify for withholding of removal, but it reversed its ruling on her CAT claim. No one disputed that the acts perpetrated against the respondent in Mexico constituted torture, but the government claimed that the respondent had failed to prove the involvement or approval of public officials. The court found that her rape by uniformed police officers met the standard set by CAT and rejected “the government’s attempts to characterize these police and military officers as merely rogue or corrupt officials.” Avendano-Hernandez at 14. It further found that the respondent had established a likelihood of future torture. It remanded the case to the immigration judge with instructions to grant her relief under CAT.

Samuel C. Berger practices immigration law in the New York City and Northern New Jersey areas. We represent individuals who want to immigrate to this area or have made this region their home, as well as businesses and individuals petitioning on an immigrant’s behalf. To schedule a confidential consultation with a knowledgeable and experienced advocate for immigrants’ rights, contact us today online or at (212) 380-8117.

More Blog Posts:

Federal Judge Harshly Rebukes Government’s Treatment of Immigrant Children Held in Detention, New York & New Jersey Immigration Lawyer Blog, September 10, 2015

The Right of Asylum for Immigrants in New Jersey and New York, New York & New Jersey Immigration Lawyer Blog, August 27, 2015

How Immigration Laws Regarding Refugees and Asylum Relate to the Situation at the U.S.-Mexico Border, New York & New Jersey Immigration Lawyer Blog, July 9, 2014

Photo credit: By Apsu09 (Own work) [GFDL or CC BY 3.0], via Wikimedia Commons.