9th Circuit Panel Finds Transgender Mexican Refugees Entitled to CAT Relief

A three-judge panel of the San Francisco-based U.S. 9th Circuit Court of Appeals has found that conditions for transgender women are so dire in Mexico that they may qualify for protection under the Convention Against Torture (CAT) based on the realization that they are likely to face torture if deported from the U.S. to Mexico.   Three decisions involving transgender women, issued by the panel on September 3, 2015, were written by Circuit Judge Jacqueline H. Nguyen, joined by Circuit Judge Harry Pregerson and 2nd Circuit Judge Barrington D. Parker, Jr., sitting by designation.  The cases are Hernandez v. Lynch, 2015 U.S. App. LEXIS 15685, 2015 WL 5155521; Mondragon-Alday v. Lynch, 2015 U.S. App. LEXIS 15713; and Godoy-Ramirez v. Lynch, 2015 U.S. App. LEXIS 15717.  The more extended Hernandez opinion sets out the full analysis, while the other brief decisions apply it to those cases.

Edin Carey Avendano Hernandez presented the most complicated factual case for the court.  Hernandez, a transgender woman, grew up in Oaxaca, Mexico.  Identified male at birth, “she knew from an early age that she was different,” wrote Judge Nguyen.  “Her appearance and behavior were very feminine, and she liked to wear makeup, dress in her sister’s clothes, and play with her sister and female cousins rather than boys her age.  Because of her gender identity and perceived sexual orientation, as a child she suffered years of relentless abuse that included beatings, sexual assaults, and rape.  The harassment and abuse continued into adulthood, and eventually, she was raped and sexually assaulted by members of the Mexican police and military.”   The opinion follows this brief summary with a detailed recital based on Hernandez’s testimony, which the Immigration Judge had found to be credible and which thus was accepted by the 9th Circuit panel as the factual basis for the appeal.  The IJ had ruled against her on all claims, and was affirmed by the Board of Immigration Appeals (BIA).

The immediate problem with Hernandez’s application for relief was a failure to apply for amnesty immediately after arriving in the U.S., then running into trouble with the law due to alcohol abuse and convictions of drunken driving, including one serious incident causing injuries to the driver of another car leading to a felony conviction, and subsequent violation of parole conditions.  Because of her felony conviction, the Immigration Judge (IJ) found her ineligible for the relief of “withholding of removal,” so her ability to stay in the U.S. boiled down to whether she qualified for protection under the CAT, which requires proof that she would likely be tortured at the hands of the government if returned to Mexico.

Here she ran into what appears to be basic category confusion by the IJ and the BIA, which conflated sexual orientation and gender identity, concluding that life for gay people in Mexico had improved substantially to the extent that it is easy to conclude that gay people from Mexico will have a difficult time obtaining CAT protection.  A series of pro-gay decisions by the Supreme Court of Mexico on marriage and adoption, the spread of anti-discrimination protection in some of the Mexican states, and changing social attitudes towards gay people in that country, have made it much more difficult for gay people from Mexico to claim refugee status in the U.S.  But the evidence suggests that there has been far less progress on the issue of gender identity, and the conflation of the two concepts by immigration officials led the BIA to discount Hernandez’ testimony about the likelihood she would suffer torture in the future.

“The IJ and the BIA do not appear to question that the assaults and rape of Avendano-Hernandez rise to the level of torture,” wrote Judge Nguyen, pointing out that she was singled out for this treatment due to her “transgender identity and her perceived sexual orientation,” as evidenced by the language used by police officers and soldiers when attacking her.  “Rape and sexual abuse due to a person’s gender identity or sexual orientation, whether perceived or actual, certainly rises to the level of torture for CAT purposes,” she continued.  “The agency, however, wrongly concluded that no evidence showed ‘that any Mexican public official has consented to or acquiesced in prior acts of torture committed against homosexuals or members of the transgender community.’  In fact, Avendano-Hernandez was tortured ‘by public officials’ – an alternative way of showing government involvement in a CAT applicant’s torture.”

Based on the testimony that the IJ found credible, “The BIA erred by requiring Avendano-Hernandez to also show the ‘acquiescence’ of the government when her torture was inflicted by public officials themselves, as a plain reading of the regulation demonstrates. . .  We reject the government’s attempts to characterize these police and military officers as merely rogue or corrupt officials.  The record makes clear that both groups of officers encountered, and then assaulted, Avendano-Hernandez while on the job and in uniform.”  The court insisted that the applicant for CAT protection need not show that high government officials are involved in her torture.  “It is enough for her to show that she was subject to torture at the hands of local officials.”  The court also noted that other officers stood by, observed the sexual assaults, but did nothing to stop or prevent them.  This was a “breach of legal responsibility to intervene to prevent such activity.”

Evidence of past torture is usually considered strong evidence of the likelihood of future torture.  In this case, BIA failed to treat it as such, pointing to the passage of laws in Mexico “purporting to protect the gay and lesbian community,” but this analysis was “fundamentally flawed” because it assumed, without any evidence, that such laws would also benefit Avendano-Hernandez, “who face unique challenges as a transgender woman.”  The court pointed out that laws “recognizing same-sex marriage may do little to protect a transgender women like Avendano-Hernandez from discrimination, police harassment, and violent attacks in daily life.”

The court found that “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 court pointed out that the Department of Homeland Security had recently recognized this by issuing “detailed guidance to its officers and employees regarding steps to assure the safety and proper care of transgender individuals held in immigration detention.”  But the IJ and the BIA failed to recognize this basic evidence supporting the claim for CAT protection.  “Country conditions evidence shows that police specifically target the transgender community for extortion and sexual favors, and that Mexico suffers from an epidemic of unsolved violent crimes against transgender persons,” wrote Judge Nguyen, pointing out that Mexico “has one of the highest documented number of transgender murders in the world.”

The court concluded that Hernandez “is therefore a conspicuous target for harassment and abuse.”  Her past experiences “reflect how transgender persons are caught in the crosshairs of both generalized homophobia and transgender-specific violence and discrimination.”  The court chided the BIA for mixing up the issue of drug-related corruption with the issue of increased violence in Mexico against LGBT people, even as the laws are becoming more favorable.  “Avendano-Hernandez’s expert explained that the passage of these laws has made the ‘situation paradoxically become increasingly more perilous, as the public and authorities react to their expressions of a form of sexuality that the culture does not embrace and, in fact, fears.'”  The court pointed out that the highest level of hate crimes were occurring in Mexico City, the jurisdiction with the most protective legislation.  “The agency’s focus on drug-related police corruption is inexplicable in light of the overwhelming record evidence of ineffective police protection of transgender persons,” concluded Nguyen.

Although the court rejected Hernandez’s contention that the BIA had failed to consider her CAT claim, that consideration was fatally flawed.  “The agency’s conflation of transgender and gay identity does not constitute the application of ‘an erroneous legal standard’ that would normally require us to remand the care for further consideration,” the judge wrote.  “Instead, the agency’s denial is based on its factual confusion as to what constitutes transgender identity and its erroneous conclusion that ‘there is no substantial evidence in the record to show that any Mexican public official has consented to or acquiesced in prior acts of torture committed against members of the transgender community.'”  This conclusion was simply incredible, in light of the torture of Hernandez by police and military officers documented in the record and “unrebutted country conditions evidence showing that such violence continues to plague transgender women in Mexico.”  Consequently, instead of returning the case to the BIA for further proceedings, the court took the very unusual step of ordering the agency to grant CAT deferral relief “because the record compels the conclusion that she will likely face torture if removed to Mexico.”

In light of its analysis of the Hernandez appeal, the court’s conclusions in the other two cases were predictable.  Fidel Mondragon-Alday suffered an adverse credibility finding by the Immigration Judge due to inconsistencies between her written and oral testimony, and the court of appeals affirmed that credibility ruling, finding that the record in the case did not compel the conclusion that her testimony was credible.  On the other hand, there was no dispute that she is a transgender woman.  Even in the absence of credible evidence of past torture, wrote Judge Nguyen for the court, “a ‘likelihood of future persecution may still be sufficient to merit withholding of removal.’  The BIA erred in its consideration of Mondragon-Alday’s evidence of likely future persecution by assuming that legal protections for gay and lesbian persons would benefit Mondragon-Alday, a transgender woman,” thus suffering the same analytical infirmity  in the Hernandez case.  Thus the case was remanded to the BIA for reconsideration, with a specific directive to “consider the particularized dangers faced by transgender women” in Mexico.

In the third case, the court found that the IJ violated the Due Process rights of Daniel Godoy-Ramirez, also identified as a transgender woman, by failing to explain that she might be able to avoid the one-year filing deadline for an asylum petition due to “changed circumstances” pertaining to her case, and that the IJ also failed to provide a “full and fair hearing” because she failed to explain the hearing procedures as required when an applicant appears without a lawyer.  The court said that “the record contains significant facts that suggest her possible eligibility” for the changed circumstances exception, “including being thrown out of her home for being transgender, the time she spent living on the streets, and her young age at the time of removal proceedings.”  On remand, Godor-Ramirez will be entitled to argue that she is eligible for the exception to the filing deadline.  Thus, she should be able to be considered for asylum, the preferred determination which could result in her becoming a legal permanent resident who could apply for citizenship in the future.

Apart from that, however, it appears that the IJ in this case committed other serious errors in light of the factual record. The IJ concluded that Godoy-Ramirez did not suffer past persecution in Mexico, although there was “direct evidence that Godoy-Ramirez was raped on account of her transgender identity and presumed homosexuality.  Words used by a persecutor during an attack are highly indicator of a persecutor’s motive, and such ‘motivation should not be questioned when the persecutors specifically articulate their reason for attacking a victim,” wrote Judge Nguyen.  “The BIA failed to acknowledge that Godoy-Ramirez’s rapist repeatedly used homophobic, derogatory language while raping her.”  The BIA also erred by failing to take into account the cumulative effect of a series of incidents involving rape, physical abuse, harassment and threats, or evidence of the Mexican government’s “indifference to harms suffered by the transgender community, including police inaction in the fact of threats to Godoy-Ramirez herself.”

A finding of past persecution creates a presumption of future persecution, the court observed, so it remanded this case for further analysis of the petition for withholding of removal, a status that leaves the applicant in a better position than deferral of removal under the CAT.  But the court also found that BIA “committed legal error in denying” the application for CAT relief.  In this case, the BIA had summarily dismissed the claim of CAT relief “without considering significant record evidence showing the persecution and torture of transgender women in Mexico.”  The CAT relief question was also remanded to the BIA, with “instructions that the BIA reconsider” the CAT claim “in light of the country conditions evidence in the record.”  Thus, it seems likely that Godoy-Ramirez will qualify for some form of relief in this case and is unlikely to be deported to Mexico.

Taken together, the three opinions make clear that the 9th Circuit panel has concluded that conditions for transgender women in Mexico are sufficient perilous to merit protection of the CAT, and perhaps as well to support the even more supportive findings of entitlement to withholding of removal or amnesty, depending upon the timing of the applicant’s initial petition for relief.  The opinions make a strong case for assuming that virtually any transgender Mexican woman whose gender expression and appearance were likely to make her a target of the police and military should be entitled to find refuge in the United States.  One hopes that the BIA takes the court’s decision to heart and applies the appropriate presumptions based on reports of country conditions in these and future cases.

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