Avendano-Hernandez v. Lynch

• Decision Date: 03 September 2015
• Docket Number: No. 13–73744.,13–73744.
• Parties: Edin Carey AVENDANO–HERNANDEZ, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

800 F.3d 1072

Edin Carey AVENDANO–HERNANDEZ, Petitioner

v.Loretta E. LYNCH, Attorney General, Respondent.

No. 13–73744.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 2015.

Filed Sept. 3, 2015.

Andrea Ruth Bird (argued) and Matthew Williamson, Manatt, Phelps & Phillips, LLP, Costa Mesa, CA; and Munmeeth K. Soni, Public Law Center, Santa Ana, CA, for Petitioner.

Corey L. Farrell (argued), Stuart F. Delery, Assistant Attorney General, and Terri J. Scadron, Assistant Director, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

Keren Zwick (argued), National Immigrant Justice Center, Chicago, IL; Nancy M. Olson, Gibson, Dunn & Crutcher LLP, Irvine, CA, for Amici Curiae National Immigrant Justice Center, East Bay Community Law Center, The Florence Project, Immigration Equality, Lawyers' Committee for Civil Rights, and The National Center for Lesbian Rights.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A099–823–350.

Before: HARRY PREGERSON, BARRINGTON D. PARKER, JR.,^* and JACQUELINE H. NGUYEN, Circuit Judges.

OPINION

NGUYEN, Circuit Judge:

Edin Avendano–Hernandez is a transgender woman who grew up in a rural town in Oaxaca, Mexico. Born biologically male, she knew from an early age that she was different. 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. She ultimately sought refuge in the United States, applying for withholding of removal and relief under Article 3 of the Convention Against Torture (“CAT”).

Avendano–Hernandez has a prior 2006 felony conviction for driving while having a .08 percent or higher blood alcohol level and causing bodily injury to another person, a violation of California Vehicle Code § 23153(b). The Board of Immigration Appeals (“BIA”) concluded that this conviction constitutes a particularly serious crime, rendering Avendano–Hernandez ineligible for withholding of removal. We find that the BIA's decision was within its discretion. The immigration judge (“IJ”) and the BIA erred, however, in denying her application for CAT relief, ironically exhibiting some of the same misconceptions about the transgender community that Avendano–Hernandez faced in her home country. The IJ failed to recognize the difference between gender identity and sexual orientation, refusing to allow the use of female pronouns because she considered Avendano–Hernandez to be “still male,” even though Avendano–Hernandez dresses as a woman, takes female hormones, and has identified as woman for over a decade. Although the BIA correctly used female pronouns for Avendano–Hernandez, it wrongly adopted the IJ's analysis, which conflated transgender identity and sexual orientation. The BIA also erred in assuming that recent anti-discrimination laws in Mexico have made life safer for transgender individuals while ignoring significant record evidence of violence targeting them. We grant the petition in part and remand for a grant of relief under CAT.

BACKGROUND

Avendano–Hernandez, a native and citizen of Mexico, is a transgender woman. She knew from as young as five or six that she was different—she was feminine and loved to wear makeup and dress in her sister's clothes, and preferred the company of girls rather than boys of her age.¹ As a result, she was frequently targeted for harassment and abuse. Her father brutally beat her and called her “faggot” and “queer,” and her schoolmates tormented her in class and physically assaulted her for being “gay.” Soon, Avendano–Hernandez's older brothers and cousins began sexually abusing her. They forced her to perform oral sex, raped her, and beat her when she tried to resist their attacks. Her parents had reason to suspect this abuse was occurring, but did not intervene. When Avendano–Hernandez told her mother that her stomach hurt and she bled when using the restroom, her mother merely gave her herbal remedies to help alleviate her pain. Similarly, her father beat her for being a “faggot” after he saw a hickey left on her chest by her brother while he raped her. She was also harassed by a male teacher, who told her he knew she was gay, touched her inappropriately, and attempted to force her to perform oral sex.

The abuse continued as Avendano–Hernandez got older. In junior high school, her classmates would write “Edin is gay and likes men” on the blackboard or on notes they would stick to her back. People in her town, including members of the police and the military, would also call her “gay” when seeing her in public. At the age of 16, Avendano–Hernandez dropped out of high school and moved to Mexico City, where she worked at a nightclub. The club's customers also harassed her because of her feminine appearance and behavior, called her derogatory names, and, on one occasion, physically attacked her. She lived in constant fear.

A year later, Avendano–Hernandez returned to her hometown to care for her mother, who was battling cancer

. One of her older brothers, who had raped her when she was a child, was also living in their parents' home and threatened to kill her if she did not leave the community. Shortly after her mother's death, in July 2000, Avendano–Hernandez unlawfully entered the United States and settled in Fresno, California. She began taking female hormones in 2005, and lived openly as a woman for the first time.

In the United States, Avendano–Hernandez struggled with alcohol abuse, and was twice convicted of driving under the influence of alcohol. Her first offense, committed on March 6, 2006, resulted in a misdemeanor conviction. Her second offense, committed several months later on July 4, involved a head-on collision with another vehicle, causing injuries to both Avendano–Hernandez and the driver of the other car. This second offense led to a felony conviction on September 27, 2006 for driving while having a .08 percent or higher blood alcohol level and causing injury to another, a violation of California Vehicle Code § 23153(b). She was sentenced to 364 days incarceration and three years of probation. After her release from custody, she was removed to Mexico in March 2007 under a stipulated order of removal.

Back in Mexico, Avendano–Hernandez again faced harassment from her family and members of the local community because of her gender identity and perceived sexual orientation. One evening, when Avendano–Hernandez was on her way to visit family in Oaxaca's capital city, armed uniformed police officers stationed at a roadside checkpoint hurled insults at her as she walked past them. Four officers then followed her down a dirt road, grabbed her, forced her into the bed of their truck, and drove her to an unknown location. Shouting homophobic slurs, they beat her, forced her to perform oral sex, and raped her. One officer hit her in the mouth with the butt of his rifle, and another held a knife to her chin, cutting her hand when she tried to push it away. After the assault, the officers told her that they knew where she lived and would hurt her family if she told anyone about the attack.

This assault prompted Avendano–Hernandez to flee Mexico almost immediately. While attempting to cross the border with a group of migrants a few days later, Avendano–Hernandez encountered a group of uniformed Mexican military officers. Though the leaders of the migrant group had asked Avendano–Hernandez to dress differently to avoid attracting attention at the border, she was still visibly transgender, as she wore her hair in a ponytail and had been taking female hormones for several years. Calling her a “faggot,” the officers separated Avendano– Hernandez from the rest of her group. One of the officers forced her to perform oral sex on him, while the rest of the group watched and laughed. The officer then told her to “get out of his sight.” She successfully reentered the United States in May 2008 and returned to Fresno. Three years later, she was arrested for violating the terms of probation imposed in her 2006 felony offense for failing to report to her probation officer.

Placed in removal proceedings and fearful of returning to Mexico, Avendano–Hernandez applied for withholding of removal and CAT relief. The IJ denied her application for withholding of removal on the ground that Avendano–Hernandez's 2006 felony conviction constitutes a “particularly serious crime,” barring her eligibility. See 8 U.S.C. § 1231(b)(3)(B)(ii). The BIA, conducting de novo review, reached the same conclusion. As to Avendano–Hernandez's CAT claim, the BIA denied relief on the ground that she failed to “demonstrate[ ] that a member of the Mexican government acting in an official capacity will more likely than not ‘consent’ to or ‘acquiesce’ in her torture; that is, come to have advance knowledge of any plan to torture or kill her and thereafter breach her legal responsibility to intervene to prevent such activity.” Matter of Avendano–Hernandez, File No. A099823350, at 3 (BIA Oct. 15, 2013). This timely petition for review followed.

DISCUSSION

I.Withholding of Removal

Avendano–Hernandez argues that the IJ and the BIA erred in finding her ineligible for withholding of removal on the ground that her felony conviction constitutes a particularly serious crime.

An alien is ineligible for withholding of removal if “the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States.” 8 U.S.C. § 1231(b)(3)(B)(ii). An aggravated felony resulting in an aggregate sentence of five years imprisonment is a per se...