9th Circuit Case Aids Trans Latinas

A recent decision by the 9th U.S. Circuit Court of Appeals has helped one undocumented transgender woman from Mexico stay in the U.S. and attorneys hope the ruling will aid others. Carey Edin Avendano-Hernandez recently won an appellate court decision and can stay in the U.S. Photo: Courtesy EuroNews.com

Carey Edin Avendano-Hernandez, a 35-year-old transgender Latina, spent nearly three years in the United States Immigration and Customs Enforcement's detention center in Santa Ana, California rather than be deported to Mexico for a second time before she won a historic decision last month when the 9th Circuit granted her deferral relief, allowing her to remain in the U.S.

Trans Latinas tell stories over and over again about what is happening in Mexico, a country that, on paper, is safe for LGBTs. Stories about bodies tossed into street gutters, down hillsides, or in a river only to be found so decomposed they are unrecognizable, said Jennicet Eva Gutierrez, a 29-year-old undocumented Mexican transgender woman who knows first-hand the reality of the lives of trans Latinas in Mexico.

"The crimes are just really bad," Gutierrez told the Bay Area Reporter. "It's just a very, very horrific experience in our country."

Gutierrez, an immigrant activist with the Familia Transgender Liberation Movement, is best known for heckling President Barack Obama at a June White House event and being escorted out of the building by security.

Nielan Barnes, an associate professor in the sociology department at California State University, Long Beach, agreed.

Barnes, a 47-year-old queer-identified woman, is an expert in the migration of LGBT people from Latin America, particularly Mexico. She has testified about the lives of trans Latinas and the reasons for migration for 30 cases, half of which are for transgender women escaping Mexico, and 15 of which are still active, she said.

In spite of Mexico accepting LGBT people in recent years, the culture has remained unchanged, clinging to the traditional machismo, making it one of the most dangerous countries in the world for transgender people, Barnes told the B.A.R., pointing to Transgender Europe's Trans Murder Monitoring Project's annual report.

"That's why sometimes many of us make the sacrifice to flee that violence and turn ourselves in at the border only to be detained by immigration officials and wait our turn before the judge," Gutierrez said.

Seeking Safety

Avendano-Hernandez crossed over the border from Mexico after years of abuse from her family and authorities, including being raped while in custody, she said. Escaping the violence, she first came to the U.S. in 2000 and began building her life in Fresno.

The Central Valley city is where she found home and family. It's where she returned when she re-entered the country in 2008 after her first deportation in 2007. In 2011, she was arrested for violating her parole because she returned to the U.S. after being convicted and serving time in jail for two DUIs, according to court documents.

"I feel like my life was in danger. I feel like I'm afraid to get killed," Avendano-Hernandez told the B.A.R. about her decision to risk the return to the states rather than go to another country or stay in Mexico. However, it came with a price: more than a decade of being in and out of immigration custody fighting to stay in the U.S. rather than returning to Mexico.

"She chose to sit in jail instead of going back to Mexico," said Andrea Ruth Bird, an attorney who served as pro bono counsel on Avendano-Hernandez's case. "Just to put perspective on how bad it is there."

The Williams Institute at UCLA School of Law estimates that there are at least 267,000 undocumented LGBT immigrants living in the U.S., 70 percent of who are Hispanic, according to a 2013 report from the institute. It is estimated that between 15,000 and 50,000 undocumented LGBT immigrants are transgender, according to the National Center for Transgender Equality, reported Vice.

Currently, Munmeeth Soni, 36, an immigration rights attorney with the Public Law Center, estimates there are 35 transgender women who are being held in the new transgender detention center established by ICE in Orange County. Prior to the new center, detained transgender immigrants were housed with other gay and lesbian detainees in a special LGBT detention center, similar to the one in which Avendano-Hernandez was held.

"There's another 35 people just waiting for someone to make the right decision for them," said Bird, a 38-year-old ally at Manatt, Phelps and Phillips, LLP.

On September 3, the historic ruling was made. The 9th Circuit overturned Los Angeles immigration court Judge Lorraine J. Munoz's 2013 decision to deport Avendano-Hernandez to Mexico.

Bird worked alongside Soni and their legal team on the case, Avendano-Hernandez v. Lynch. (Soni declined to identify her sexual orientation.)

For the first time in years Avendano-Hernandez was able to finally plan her life in Fresno, where she currently lives.

The decision did more than help Avendano-Hernandez. It pried opened the door that has been closed pretty tightly for other transgender women fleeing persecution in their native lands and seeking refuge in the U.S.

"To some extent there is like, much more at stake for all these individuals, particularly those who are fleeing institutionalized torture," said Bird. "Literally their lives are at stake."

Avendano-Hernandez and Gutierrez's stories echo reports that other trans Latinas continue to tell immigration judges. They tell their stories, often alone and without representation because they don't have an automatic right to free legal counsel, said Bird, because they aren't U.S. citizens.

"They are sitting there without defense. It's pretty bad," Bird said.

Asylum Requests Often Denied

Their requests for asylum are often denied. A majority of them are often deported to the country from which they are fleeing. They return to the U.S. ICE picks them up. They spend years in detention waiting for their case to be heard again. But now they have a strike against them - they've been deported before or didn't file their claim for asylum on time - and possibly a few more strikes against them if they have a criminal record. They get funneled to certain courts depending on these two factors, according to Barnes.

"They get punished for trying to save their lives," said Bamby Salcedo, 45, a trans Latina immigrant who is president and CEO of the Trans Latina Coalition in Los Angeles, describing how trans Latinas are detained by U.S. immigration for "long periods of time" and are treated inhumanely in the detention centers.

Salcedo highlighted undocumented transgender Latinas' experiences fleeing violence in Mexico and detention in the U.S. in the report, TransVisible: Transgender Latina Immigrants in U.S. Society.

Cutting Through the Red Tape

The three-judge panel in Avendano-Hernandez's case said that she was protected under the international anti-torture conventions. The judges went further, clearly defining gender identity and sexual orientation and clarifying the meaning of country conditions.

"This is absolutely a groundbreaking case," said Soni, the attorney. "This is the first case of its kind - as far as circuit level appellate cases are concerned - that distinguish gender identity from sexual orientation and explicitly recognize that transgender individuals belong in a separate social group from people who identify with being homosexual."

"It is a very important distinction because both social groups face unique challenges and the court pointed that out that even though some protections may be in place there aren't protections there for transgender individuals," added attorney Bird.

Additionally, the court noted that in spite of Mexico's outwardly seeming acceptance of LGBT people, the evidence stacked up against the country when examining Mexico's human rights records.

When Avendano-Hernandez was forced to return she was still tortured, raped, and beaten by Mexican officers and military officials, said Avendano-Hernandez and her attorneys.

"The court decided that there was a very high likelihood that if she returned she would be tortured again," said Bird. "I don't think that anyone should be punished for a DUI by being sent somewhere to be tortured, raped, and beaten up."

Hope for Others

The impact of the circuit court's decision may help other cases.

Two other asylum cases from Mexico involving transgender women still face an uphill battle, which might have been softened by the 9th circuit's decision. Two of the women - Daniella Godoy-Ramirez and Lucia Mondragon-Alday - were denied by Munoz, the same judge as Avendano-Hernandez.

Then there is the Georgia case of "Estrella" Antonio-Sanchez, who was born Job. Antonio-Sanchez is appealing Judge Dan Trimble's second denial of her application for asylum with the assistance of her legal counsel at Immigration Equality and Kilpatrick Townsend and Stockton.

Soni currently has 10 other cases of transgender Latinas from Mexico in various stages of the immigration courts, she said, "but there are many more people who need help."

However, the force of the law will only be as powerful as the transgender immigrants are able to "effectively advocate for themselves," said Soni. The other way is if their free legal aid counselors or immigration judges "apply the law correctly."

For the first time, immigration attorneys working with transgender clients have a legal opinion to use in their cases and are immediately implementing it in the cases that they are working on across the country, Soni said. Judges now have clear definitions for transgender and gay and lesbian individuals and country conditions based on gender identity and sexual orientation to guide them in their decision-making to grant asylum, relief, or to withhold removal.

"It is really important that this case was decided because it is giving direction to the immigration judges," said Bird.

Bird added that she hopes the long-term impact will be educational for judges and how they handle transgender clients and their cases.

"We hope that the immigration judges will take the court statements that they need to pay attention to what gender they are referring to people by [seriously]," said Bird, referring to how Munoz refused to recognize Avendano-Hernandez by her preferred gender, as did Trimble to Antonio-Sanchez in Georgia.

"It's really demoralizing for a court to tell an individual that they refuse to call them by their gender," said Bird.

Looking Toward the Future

The court's decision freed Avendano-Hernandez. She was relieved that she was able to finally resume living in the U.S.

"I'm so happy and excited to hear that we won the case," said Avendano-Hernandez. "That means a lot to me because I can now make more plans, you know, keep doing my goals."

However, she recognizes that the decision goes beyond her own freedom. Avendano-Hernandez and transgender immigration activists are hopeful about the effect the 9th Circuit's decision has for cases involving other undocumented transgender people.

"I hope that this decision will be an opportunity," said Avendano-Hernandez. "I hope that other trans communities [get] the same opportunity that they give to me."

Added Gutierrez, "I just hope that this case is precedent for any other trans woman, especially from Mexico and Central and South America, who are really escaping really severe persecution in their countries."

She hopes other trans Latinas "get the opportunity to stay in this country and seek the opportunities that many of us seek and to finally succeed, thrive, and contribute to the country and to be grateful for every opportunity that we get here."