Court: Transgender asylum seekers can't be equated with gays

AP News
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Posted: Sep 03, 2015 6:10 PM

SAN FRANCISCO (AP) — Transgender people can be especially vulnerable to harassment and attacks and shouldn't be equated with gays and lesbians by U.S. immigration officials determining whether to grant asylum, a federal appeals court said Thursday.

The San Francisco-based 9th U.S. Circuit Court of Appeals issued the ruling in the case of a transgender Mexican woman who sought shelter in the U.S. on the grounds that she would likely be tortured if returned to Mexico.

Edin Avendano-Hernandez said she had been sexually assaulted by uniformed Mexican police and a military official for being transgender.

The Board of Immigration Appeals wrongly relied on Mexican laws protecting gays and lesbians to reject Avendano-Hernandez's asylum request, the ruling states.

The 9th Circuit said transgender people face a unique level of danger and are specifically targeted in Mexico by police for extortion and sexual favors.

"While the relationship between gender identity and sexual orientation is complex, and sometimes overlapping, the two identities are distinct," Circuit Judge Jacqueline Nguyen wrote. "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."

Avendano-Hernandez dresses like a woman and takes female hormones, the 9th Circuit said.

An email to immigration officials for comment on the ruling was not immediately returned.

The 9th Circuit sent the case back to the Board of Immigration Appeals with instructions to grant Avendano-Hernandez's application for relief under the Convention Against Torture.

"She's ecstatic," Avendano-Hernandez's attorney, Munmeeth Soni, said. "The fear was constantly hanging over her head that she might have to one day turn herself in to return to Mexico. She no longer lives under that fear."

Avendano-Hernandez was born male and grew up in a rural town in the Mexican state of Oaxaca, suffering homophobic slurs and abuse at the hands of her family, according to the 9th Circuit ruling.

She first came to the U.S. illegally in 2000 and began taking female hormones five years later.

She was convicted of driving under the influence of alcohol and deported in 2007. In Mexico, she said, she was raped by police officers and sexually assaulted by a member of the military while trying to flee to the U.S., according to the 9th Circuit.