A previously deported criminal alien from Mexico with a felony conviction has been allowed to stay in the United States because he is transgender. Deportation would be inhumane, the Federal Appeal Courts for the Ninth Circuit ruled.
In the opinion filed on September 3, Judge Jacqueline Nguyen disregarded the fact that Edin Avendano-Hernandez, who had been previously deported, had been convicted of DWI and had a felony conviction for injuring people while driving drunk when ruling in his/her favor.
The judge further criticized the lower courts for being insensitive to the previously deported criminal alien.
The judge ruled that Avendano was able to get relief under the Convention Act of Torture thus overturning the ruling of an immigration judge and the Board of Immigration Appeals. Nguyen stated that if deported Avendano would be subjected to torture in Mexico.
“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,” the judge wrote in her opinion. “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.”
In the background section of the documents, the court talked about the years of bullying, incest, abuse and rape that Avendano lived through in Mexico before he crossed illegally into the U.S. in 2000 and began to live as a woman. The court record claims that Avendano became an alcoholic while living illegally in the U.S. “struggling with alcohol abuse”.
The transgender person was convicted of DWI in March 2006, he/she was not deported. On July4 and then on Avendano-Hernandez while driving drunk crashed head on into another vehicle injuring the innocent driver. Following that crash, he/she was sent to prison for almost a year and then deported.
The court record states that while in Mexico Avendano claims to have been raped and beaten by the Mexican military prompting him/her to flee to America.
The judge’s opinion does not list or make mention any supporting evidence of the attack and does attack the BIA for finding that Avendano failed “to show a likelihood of future torture is not supported by substantial evidence.”
By 2008, Avendano was back in the U.S. where he/she was arrested for failing to report for probation because he/she had been deported and immediately asked for protection under the CAT but lost his/her case before an immigration judge and then before the BIA.
The denials were based on Avendano’s previous conviction on the drunken wreck. However, according to Nguyen the courts were insensitive to him.
“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.”
According to Judge Nguyen, the BIA and the Immigration Judge were mistaken in refusing Anvendano the opportunity to call herself a woman even though he/she “dresses as a woman, takes female hormones, and has identified as woman for over a decade.”