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Avendano-Hernandez v. Lynch

United States Court of Appeals for the Ninth Circuit

March 6, 2015, Argued and Submitted, Pasadena, California; September 3, 2015, Filed

No. 13-73744

Opinion

 [*1075]  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 [**4]  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 [**5]  record evidence of violence targeting them. We grant the petition in part and remand for a grant of relief under CAT.

BACKGROUND

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800 F.3d 1072 *; 2015 U.S. App. LEXIS 15685 **

EDIN CAREY AVENDANO-HERNANDEZ, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent.

Prior History:  [**1] On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A099-823-350.

Disposition: PETITION DENIED IN PART, GRANTED IN PART, AND REMANDED.

CORE TERMS

torture, transgender, serious crime, raped, removal, withholding, woman, sentence, acquiescence, constitutes, harassment, female, sexual orientation, public official, assaulted, sexual, sexual assault, inflicted, probation, violence, ***, gender, pain, felony conviction, military officer, persecution, corruption, ineligible, driving, target

Immigration Law, Judicial Review, Standards of Review, General Overview, Judicial Proceedings, Scope of Review, Deportation & Removal, Judicial Review, Asylum, Refugees & Related Relief, Restriction on Removal, Eligibility Requirements, Exceptions to Removal Restriction, Jurisdiction, Criminal Law & Procedure, Vehicular Crimes, Driving Under the Influence, De Novo Standard of Review, Convention Against Torture, Substantial Evidence