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Avendano-Hernandez v. Lynch

United States Court of Appeals for the Ninth Circuit
Not provided in the text (2015)
ELI5:

Rule of Law:

Under the Convention Against Torture (CAT), torture inflicted directly by on-duty public officials satisfies the government involvement requirement without needing a separate showing of acquiescence. Immigration adjudicators must separately analyze the distinct risks faced by transgender individuals, rather than conflating them with the risks faced by gay or lesbian individuals.


Facts:

  • Edin Avendano-Hernandez is a transgender woman from a rural town in Oaxaca, Mexico.
  • From childhood, she suffered relentless physical and sexual abuse from family members, schoolmates, and community members because of her feminine identity.
  • After moving to Mexico City at 16, the harassment and physical attacks continued.
  • In July 2000, Avendano-Hernandez entered the United States and began living openly as a woman in 2005.
  • In 2006, she was convicted of a felony for driving under the influence of alcohol and causing injury to another person.
  • After being removed to Mexico in 2007, four uniformed police officers abducted her, beat her, sexually assaulted her, and raped her while shouting homophobic slurs.
  • A few days later, while attempting to re-enter the U.S., a group of uniformed Mexican military officers separated her from her group, and one officer forced her to perform oral sex on him while others watched.
  • She successfully re-entered the United States in May 2008.

Procedural Posture:

  • Avendano-Hernandez was placed in removal proceedings.
  • She applied to an Immigration Judge (IJ) for withholding of removal and for relief under the Convention Against Torture (CAT).
  • The IJ denied both forms of relief, finding her 2006 felony conviction was a 'particularly serious crime' and that she did not prove eligibility for CAT relief.
  • Avendano-Hernandez appealed the IJ's decision to the Board of Immigration Appeals (BIA).
  • The BIA conducted a de novo review and affirmed the IJ's decision, denying both the withholding of removal and the CAT claim.
  • Avendano-Hernandez filed a petition for review of the BIA's decision with the U.S. Court of Appeals for the Ninth Circuit.

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Issue:

Does the Board of Immigration Appeals err in denying relief under the Convention Against Torture by finding no government involvement when public officials directly perpetrated past torture, and by failing to properly consider the specific future risks to a transgender woman by conflating her identity with sexual orientation?


Opinions:

Majority - Nguyen, J.

Yes. The Board of Immigration Appeals (BIA) erred in denying relief under the Convention Against Torture (CAT) because it misapplied the standard for government involvement and fundamentally misunderstood the risks faced by the petitioner as a transgender woman. The BIA wrongly required Avendano-Hernandez to show government 'acquiescence' in her torture, when the plain language of the regulation is satisfied if torture is inflicted directly 'by' a public official, as was the case here with on-duty Mexican police and military officers. Furthermore, the BIA's analysis of future torture was fatally flawed because it conflated gender identity with sexual orientation, wrongly assuming that recent laws protecting gay and lesbian individuals would protect Avendano-Hernandez. The BIA ignored substantial record evidence demonstrating that transgender individuals in Mexico face specific, extreme, and targeted violence, often from police, and that Mexico has one of the highest rates of transgender murders in the world. Given the past torture by public officials and the unrebutted evidence of likely future torture, the record compels a grant of CAT relief.



Analysis:

This case is significant for clarifying the application of the Convention Against Torture (CAT) in two key respects. First, it establishes that direct perpetration of torture by on-duty state actors, such as police or military, is sufficient to meet the 'government action' requirement of CAT, eliminating the need for a petitioner to also prove higher-level government acquiescence. Second, it sets a crucial precedent requiring immigration adjudicators to recognize and analyze the distinction between gender identity and sexual orientation. The ruling mandates a specific inquiry into the unique vulnerabilities and patterns of persecution faced by transgender individuals, rather than allowing courts to rely on general evidence about conditions for the broader LGB community.

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