A transgender illegal immigrant who suffered years of sexual and physical abuse in Mexico cannot be deported despite a felony conviction because she is protected under international anti-torture conventions, a U.S. appeals court ruled on Thursday.
In granting Edin Carey Avendano-Hernandez the right to remain in the United States, a three-member 9th U.S. Circuit Court of Appeals panel found that a federal immigration board that ordered her deported had mixed sexual orientation with gender identity.
The justices also disagreed with a finding by the Board of Immigration Appeals that recent anti-discrimination laws in Mexico had made it safer for transgender individuals to live there.
“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,” Judge Jacqueline Nguyen wrote for the 9th Circuit panel.
“Avendano-Hernandez, who takes female hormones and dresses as a woman, is therefore a conspicuous target for harassment and abuse,” Nguyen wrote in the 20-page ruling.
According to the ruling, Avendano-Hernandez was born male but grew up in Oaxaca, Mexico, believing that she was female and suffered years of abuse over her gender identity, including beatings, sexual assaults and rape.
That abuse continued into her adulthood and she suffered at the hands of the Mexican police and military before seeking refuge in the United States.
While in the United States, Avendano-Hernandez was twice convicted of driving under the influence in 2006 and was deported following the second offense, a felony because she and the other driver both sustained injuries.
Back in Mexico, Avendano-Hernandez suffered more abuse and assaults, including beatings and rape at the hands of police officers and she returned to the United States in 2008.
Three years later she was arrested for probation violation and, facing deportation, applied for relief under the United Nations Convention Against Torture.
(Reporting by Dan Whitcomb; Editing by Sandra Maler)