Edin Avendano-Hernandez v. Loretta E. Lynch , 800 F.3d 1072 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDIN CAREY AVENDANO- No. 13-73744
HERNANDEZ,
Petitioner, Agency No.
A099-823-350
v.
LORETTA E. LYNCH, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 6, 2015—Pasadena, California
Filed September 3, 2015
Before: Harry Pregerson, Barrington D. Parker, Jr., * and
Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Nguyen
*
The Honorable Barrington D. Parker, Jr., United States Circuit
Judge for the Second Circuit, sitting by designation.
2 AVENDANO-HERNANDEZ V. LYNCH
SUMMARY **
Immigration
The panel denied a petition for review as to the Board
of Immigration Appeals’ denial of withholding of removal
and granted the petition as to the Board’s denial of deferral
of removal under the Convention Against Torture.
The panel held that the Board was within its discretion
in denying withholding of removal based on its
determination that Avendano-Hernandez’s conviction for
driving while having a .08 percent or higher blood alcohol
level and causing bodily injury to another person, in
violation of California Vehicle Code § 23153(b), was a
particularly serious crime. The panel explained that the
Board properly characterized the facts and circumstances
surrounding the crime, and that this court lacks jurisdiction
to reweigh the evidence the Board considered in
determining on a case-by-case basis that the offense
constituted a PSC.
The panel held that the Board erred in denying
Avendano-Hernandez’s application for CAT relief because
it failed to recognize the difference between gender identity
and sexual orientation. The panel held that the Board also
erred in assuming that recent anti-discrimination laws in
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
AVENDANO-HERNANDEZ V. LYNCH 3
Mexico have made life safer for transgender individuals,
while ignoring significant record evidence of violence
targeting them. The panel remanded for a grant of CAT
relief in light of Avendano-Hernandez’s past torture and
unrebutted country conditions evidence showing a clear
probability of future torture with government acquiescence.
COUNSEL
Andrea Ruth Bird (argued) and Matthew Williamson,
Manatt, Phelps & Phillips, LLP, Costa Mesa, California;
and Munmeeth K. Soni, Public Law Center, Santa Ana,
California, for Petitioner.
Corey L. Farrell (argued), Stuart F. Delery, Assistant
Attorney General, and Terri J. Scadron, Assistant Director,
United States Department of Justice, Office of Immigration
Litigation, Washington, D.C., for Respondent.
Nancy M. Olson, Gibson, Dunn & Crutcher LLP, Irvine,
California, for Amici Curiae National Immigrant Justice
Center, East Bay Community Law Center, The Florence
Project, Immigration Equality, Lawyers’ Committee for
Civil Rights, and The National Center for Lesbian Rights.
OPINION
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
4 AVENDANO-HERNANDEZ V. LYNCH
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
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
AVENDANO-HERNANDEZ V. LYNCH 5
ignoring significant record evidence of violence targeting
them. We grant the petition in part and remand for a grant
of relief under CAT.
BACKGROUND
Avendano-Hernandez, a native and citizen of Mexico,
is a transgender woman. She knew from as young as five
or six that she was different—she was feminine and loved
to wear makeup and dress in her sister’s clothes, and
preferred the company of girls rather than boys of her age. 1
As a result, she was frequently targeted for harassment and
abuse. Her father brutally beat her and called her “faggot”
and “queer,” and her schoolmates tormented her in class
and physically assaulted her for being “gay.” Soon,
Avendano-Hernandez’s older brothers and cousins began
sexually abusing her. They forced her to perform oral sex,
raped her, and beat her when she tried to resist their attacks.
Her parents had reason to suspect this abuse was occurring,
but did not intervene. When Avendano-Hernandez told her
mother that her stomach hurt and she bled when using the
restroom, her mother merely gave her herbal remedies to
help alleviate her pain. Similarly, her father beat her for
being a “faggot” after he saw a hickey left on her chest by
her brother while he raped her. She was also harassed by a
male teacher, who told her he knew she was gay, touched
1
The IJ found Avendano-Hernandez to be credible, and the BIA
affirmed this finding. Thus, “we accept the facts given by [the
petitioner] and all reasonable inferences to be drawn from them as
true.” Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1054 n.2 (9th Cir.
2006).
6 AVENDANO-HERNANDEZ V. LYNCH
her inappropriately, and attempted to force her to perform
oral sex.
The abuse continued as Avendano-Hernandez got older.
In junior high school, her classmates would write “Edin is
gay and likes men” on the blackboard or on notes they
would stick to her back. People in her town, including
members of the police and the military, would also call her
“gay” when seeing her in public. At the age of 16,
Avendano-Hernandez dropped out of high school and
moved to Mexico City, where she worked at a nightclub.
The club’s customers also harassed her because of her
feminine appearance and behavior, called her derogatory
names, and, on one occasion, physically attacked her. She
lived in constant fear.
A year later, Avendano-Hernandez returned to her
hometown to care for her mother, who was battling cancer.
One of her older brothers, who had raped her when she was
a child, was also living in their parents’ home and
threatened to kill her if she did not leave the community.
Shortly after her mother’s death, in July 2000, Avendano-
Hernandez unlawfully entered the United States and settled
in Fresno, California. She began taking female hormones
in 2005, and lived openly as a woman for the first time.
In the United States, Avendano-Hernandez struggled
with alcohol abuse, and was twice convicted of driving
under the influence of alcohol. Her first offense,
committed on March 6, 2006, resulted in a misdemeanor
conviction. Her second offense, committed several months
later on July 4, involved a head-on collision with another
vehicle, causing injuries to both Avendano-Hernandez and
the driver of the other car. This second offense led to a
felony conviction on September 27, 2006 for driving while
having a .08 percent or higher blood alcohol level and
AVENDANO-HERNANDEZ V. LYNCH 7
causing injury to another, a violation of California Vehicle
Code § 23153(b). She was sentenced to 364 days
incarceration and three years of probation. After her
release from custody, she was removed to Mexico in March
2007 under a stipulated order of removal.
Back in Mexico, Avendano-Hernandez again faced
harassment from her family and members of the local
community because of her gender identity and perceived
sexual orientation. One evening, when Avendano-
Hernandez was on her way to visit family in Oaxaca’s
capital city, armed uniformed police officers stationed at a
roadside checkpoint hurled insults at her as she walked past
them. Four officers then followed her down a dirt road,
grabbed her, forced her into the bed of their truck, and
drove her to an unknown location. Shouting homophobic
slurs, they beat her, forced her to perform oral sex, and
raped her. One officer hit her in the mouth with the butt of
his rifle, and another held a knife to her chin, cutting her
hand when she tried to push it away. After the assault, the
officers told her that they knew where she lived and would
hurt her family if she told anyone about the attack.
This assault prompted Avendano-Hernandez to flee
Mexico almost immediately. While attempting to cross the
border with a group of migrants a few days later,
Avendano-Hernandez encountered a group of uniformed
Mexican military officers. Though the leaders of the
migrant group had asked Avendano-Hernandez to dress
differently to avoid attracting attention at the border, she
was still visibly transgender, as she wore her hair in a
ponytail and had been taking female hormones for several
years. Calling her a “faggot,” the officers separated
Avendano-Hernandez from the rest of her group. One of
the officers forced her to perform oral sex on him, while the
rest of the group watched and laughed. The officer then
8 AVENDANO-HERNANDEZ V. LYNCH
told her to “get out of his sight.” She successfully
reentered the United States in May 2008 and returned to
Fresno. Three years later, she was arrested for violating the
terms of probation imposed in her 2006 felony offense for
failing to report to her probation officer.
Placed in removal proceedings and fearful of returning
to Mexico, Avendano-Hernandez applied for withholding
of removal and CAT relief. The IJ denied her application
for withholding of removal on the ground that Avendano-
Hernandez’s 2006 felony conviction constitutes a
“particularly serious crime,” barring her eligibility. See
8 U.S.C. § 1231(b)(3)(B)(ii). The BIA, conducting de novo
review, reached the same conclusion. As to Avendano-
Hernandez’s CAT claim, the BIA denied relief on the
ground that she failed to “demonstrate[] that a member of
the Mexican government acting in an official capacity will
more likely than not ‘consent’ to or ‘acquiesce’ in her
torture; that is, come to have advance knowledge of any
plan to torture or kill her and thereafter breach her legal
responsibility to intervene to prevent such activity.” Matter
of Avendano-Hernandez, File No. A099823350, at 3 (BIA
Oct. 15, 2013). This timely petition for review followed.
DISCUSSION
I.
Withholding of Removal
Avendano-Hernandez argues that the IJ and the BIA
erred in finding her ineligible for withholding of removal
on the ground that her felony conviction constitutes a
particularly serious crime.
An alien is ineligible for withholding of removal if “the
alien, having been convicted by a final judgment of a
particularly serious crime is a danger to the community of
AVENDANO-HERNANDEZ V. LYNCH 9
the United States.” 8 U.S.C. § 1231(b)(3)(B)(ii). An
aggravated felony resulting in an aggregate sentence of five
years imprisonment is a per se particularly serious crime.
Id. § 1231(b)(3)(B). However, because the term
“particularly serious crime” is not otherwise defined by
statute, the Attorney General may also “designate offenses
as particularly serious crimes through case-by-case
adjudication as well as regulation.” Delgado v. Holder,
648 F.3d 1095, 1098 (9th Cir. 2011) (en banc). The
applicable legal standard to determine if a crime is
particularly serious, described in the BIA’s decision in
Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982),
requires the agency to ask whether “the nature of the
conviction, the underlying facts and circumstances and the
sentence imposed justify the presumption that the convicted
immigrant is a danger to the community.” Delgado,
648 F.3d at 1107.
We have jurisdiction to review for abuse of discretion
the BIA’s conclusion that an offense constitutes a
particularly serious crime. Arbid v. Holder, 700 F.3d 379,
382, 384–85 (9th Cir. 2012). Our review is limited to
ensuring that the agency relied on the “appropriate factors”
and “[]proper evidence” to reach this conclusion. Anaya-
Ortiz v. Holder, 594 F.3d 673, 676 (9th Cir. 2010) (internal
citations omitted); see also Afridi v. Gonzales, 442 F.3d
1212, 1218 (9th Cir. 2006), overruled in part on other
grounds by Estrada-Espinoza v. Mukasey, 546 F.3d 1147,
1160 n.15 (9th Cir. 2008) (en banc). We may not reweigh
the evidence and reach our own determination about the
crime’s seriousness. See Konou v. Holder, 750 F.3d 1120,
1127 (9th Cir. 2014).
Here, the agency applied the proper legal standard in
concluding that Avendano-Hernandez’s conviction is a
particularly serious crime. While “driving under the
10 AVENDANO-HERNANDEZ V. LYNCH
influence is not statutorily defined as an aggravated
felony,” Delgado, 648 F.3d at 1097, the BIA may
determine that this offense constitutes a particularly serious
crime on a case-by-case basis. See, e.g., Anaya-Ortiz,
594 F.3d at 679–80 (concluding that this court has no
jurisdiction to reweigh the BIA’s determination that a
felony DUI causing injury conviction under California law
constitutes a particularly serious crime); cf. Delgado,
648 F.3d at 1107–08 (remanding to the BIA to clarify how
it concluded that the petitioner’s driving while under the
influence offense constituted a particularly serious crime).
The agency in this case appropriately found Avendano-
Hernandez’s offense to be an “inherently dangerous
activity, [as it] has the potential for great harm to the driver
and all others encountered.”
Contrary to Avendano-Hernandez’s claim, the BIA did
not mischaracterize the facts and circumstances
surrounding the crime. Avendano-Hernandez argues that
her accident caused less severe injuries to the other driver
than those inflicted by the Anaya-Ortiz petitioner: the
police report indicates that Avendano-Hernandez caused
the other driver to suffer neck and back pain, as well as
minor pain to the right arm and left knee, while in Anaya-
Ortiz, the petitioner crashed into a house, causing the walls
to fall down on its elderly inhabitant, 594 F.3d at 675. The
BIA addressed these factual distinctions, and found them
insufficient to “minimize the applicant’s offense or reduce
her culpability.” We cannot overturn this conclusion
without reweighing the Frentescu factors, which we lack
jurisdiction to do. See Konou, 750 F.3d at 1127.
We agree with Avendano-Hernandez that the IJ erred in
treating her two-year sentence for violating probation as an
“enhancement” of her original sentence. Frentescu allows
consideration of “the type of sentence imposed” for the
AVENDANO-HERNANDEZ V. LYNCH 11
offense, 18 I. & N. Dec. at 247, which in this case was
three years of probation and 364 days incarceration. While
we have upheld the consideration of sentence
enhancements in the particularly serious crime analysis, see
Konou, 750 F.3d at 1128, a sentence imposed for violating
probation is not a sentence enhancement. However, the
IJ’s error was harmless. The BIA properly identified
Avendano-Hernandez’s sentence as 364 days incarceration,
and “[w]here the BIA conducts a de novo review, ‘[a]ny
error committed by the IJ will be rendered harmless by the
Board’s application of the correct legal standard.’”
Brezilien v. Holder, 569 F.3d 403, 411 (9th Cir. 2009)
(second alteration in original) (quoting Ghaly v. INS,
58 F.3d 1425, 1430 (9th Cir. 1995)). Because the BIA
properly found that Avendano-Hernandez’s prior felony
conviction constitutes a particularly serious crime, she is
ineligible for withholding of removal.
II.
Convention Against Torture
We now turn to Avendano-Hernandez’s claim for relief
under CAT. “We have jurisdiction pursuant to § 1252(a) to
review the BIA’s denial of [petitioner]’s claim for CAT
deferral,” Delgado, 648 F.3d at 1108, and review the
factual findings behind the agency’s conclusion for
substantial evidence, Zheng v. Ashcroft, 332 F.3d 1186,
1193 (9th Cir. 2003). The BIA concluded that Avendano-
Hernandez failed to show that the Mexican government
will more likely than not consent to or acquiesce in her
torture. This conclusion is not supported by the record.
12 AVENDANO-HERNANDEZ V. LYNCH
A. Avendano-Hernandez’s Rape and Sexual Assault by
Mexican Officials Constitute Past Torture
To receive deferral of removal under CAT, Avendano-
Hernandez must show that upon her return to Mexico “she
is more likely than not to be tortured,” 8 C.F.R.
§ 1208.17(a), either “by or at the instigation of or with the
consent or acquiescence of a public official or other person
acting in an official capacity,” id. § 1208.18(a)(1). Torture
is defined, in part, as “any act by which severe pain or
suffering, whether physical or mental, is intentionally
inflicted on a person . . . for any reason based on
discrimination of any kind.” Id. When evaluating an
application for CAT relief, the IJ and the BIA should
consider “all evidence relevant to the possibility of future
torture, including . . . [e]vidence of past torture inflicted
upon the applicant.” Id. § 1208.16(c)(3).
The IJ and the BIA do not appear to question that the
assaults and rape of Avendano-Hernandez rise to the level
of torture. Avendano-Hernandez was raped, forced to
perform oral sex, beaten severely, and threatened. “Rape
can constitute torture . . . [as it] is a form of aggression
constituting an egregious violation of humanity.” Zubeda
v. Ashcroft, 333 F.3d 463, 472 (3d Cir. 2003). See also Edu
v. Holder, 624 F.3d 1137, 1147 (9th Cir. 2010) (remanding
for the BIA to grant CAT relief to a petitioner who had
been raped); cf. Lopez-Galarza v. I.N.S., 99 F.3d 954, 959
(9th Cir. 1996) (holding that rape and sexual assault may
constitute persecution for asylum purposes). Moreover,
Avendano-Hernandez was singled out because of her
transgender identity and her presumed sexual orientation.
See 8 C.F.R. § 1208.18(a)(1) (defining torture, in part, as
“any act by which severe pain or suffering . . . is
intentionally inflicted on a person . . . for any reason based
on discrimination of any kind”). “[T]he officer[s]’ words
AVENDANO-HERNANDEZ V. LYNCH 13
during the assaults make clear that [they were] motivated
by [petitioner]’s sexuality.” Boer-Sedano v. Gonzales,
418 F.3d 1082, 1089 (9th Cir. 2005). Rape and sexual
abuse due to a person’s gender identity or sexual
orientation, whether perceived or actual, certainly rises to
the level of torture for CAT purposes. Cf. Hernandez-
Montiel v. INS, 225 F.3d 1084, 1097 (9th Cir. 2000)
(finding that sexual assaults perpetrated against a
transgender woman “undoubtedly constitute persecution”),
overruled on other grounds by Thomas v. Gonzales,
409 F.3d 1177, 1187 (9th Cir. 2005).
The agency, however, wrongly concluded that no
evidence showed “that any Mexican public official has
consented to or acquiesced in prior acts of torture
committed against homosexuals or members of the
transgender community.” In fact, Avendano-Hernandez
was tortured “by . . . public official[s]”—an alternative way
of showing government involvement in a CAT applicant’s
torture. 8 C.F.R. § 1208.18(a)(1). Avendano-Hernandez
provided credible testimony that she was severely assaulted
by Mexican officials on two separate occasions: first, by
uniformed, on-duty police officers, who are the
“prototypical state actor[s] for asylum purposes,” Boer-
Sedano, 418 F.3d at 1088, and second, by uniformed, on-
duty members of the military. Such police and military
officers are “public officials” for the purposes of CAT. See
also Muradin v. Gonzales, 494 F.3d 1208, 1210–11 (9th
Cir. 2007) (recognizing that abuse by military officers can
constitute government torture in the CAT context). The
BIA erred by requiring Avendano-Hernandez to also show
the “acquiescence” of the government when her torture was
14 AVENDANO-HERNANDEZ V. LYNCH
inflicted by public officials themselves, as a plain reading
of the regulation demonstrates. 2 8 C.F.R. § 1208.18(a)(1)
(specifying that the act must be inflicted “by or at the
instigation of or with the consent or acquiescence of a
public official”) (emphasis added). See also Baballah v.
Ashcroft, 367 F.3d 1067, 1078 (9th Cir. 2003) (finding
“governmental involvement” to be “conclusively
establish[ed] where “there is no question that the
perpetrators of the persecution were themselves
government actors”).
We reject the government’s attempts to characterize
these police and military officers as merely rogue or
corrupt officials. The record makes clear that both groups
of officers encountered, and then assaulted, Avendano-
Hernandez while on the job and in uniform. Avendano-
Hernandez was not required to show acquiescence by a
higher level member of the Mexican government because
“an applicant for CAT relief need not show that the entire
foreign government would consent to or acquiesce in [her]
torture.” Madrigal v. Holder, 716 F.3d 499, 509 (9th Cir.
2013). It is enough for her to show that she was subject to
torture at the hands of local officials. Thus, the BIA erred
by finding that Avendano-Hernandez was not subject to
past torture by public officials in Mexico.
2
Alternatively, Avendano-Hernandez proved government
acquiescence because several police and military officers stood by and
watched their colleagues assault her. This assuredly constitutes
“awareness of” her torture and “breach [of their] legal responsibility to
intervene to prevent such activity.” 8 C.F.R. §1208.18(a)(7).
AVENDANO-HERNANDEZ V. LYNCH 15
B. The Record Evidence Compels a Finding of Likely
Future Torture
“[P]ast torture is ordinarily the principal factor on
which we rely when an applicant who has been previously
tortured seeks relief under the Convention” because, absent
changed circumstances, “if an individual has been tortured
and has escaped to another country, it is likely that he will
be tortured again if returned to the site of his prior
suffering.” See Nuru v. Gonzales, 404 F.3d 1207, 1217–18
(9th Cir. 2005). In addition, the agency must evaluate all
other evidence relevant to the claim, including proof of
“gross, flagrant, or mass violations of human rights” in the
home country and other country conditions evidence. Id. at
1218–19.
The BIA’s conclusion that Avendano-Hernandez failed
to show a likelihood of future torture is not supported by
substantial evidence. The BIA primarily relied on
Mexico’s passage of laws purporting to protect the gay and
lesbian community. The agency’s analysis, however, is
fundamentally flawed because it mistakenly assumed that
these laws would also benefit Avendano-Hernandez, who
faces unique challenges as a transgender woman. 3 There is
no dispute that Mexico has extended some legal protections
3
While the record does mention two laws meant to protect the
transgender community—a 2004 amendment to the Mexico City Civil
Code allowing transgender people to change their registered name and
sex on their birth certificates, and a national anti-discrimination law
that includes protections for gender expression—neither the IJ nor the
BIA appear to have specifically considered these protections or their
effectiveness.
16 AVENDANO-HERNANDEZ V. LYNCH
to gay and lesbian persons; for example, Mexico City
legalized gay marriage and adoption in December 2009,
and the Mexican Supreme Court has held that such
marriages must be recognized by other Mexican states.
U.S. Dep’t of State, Country Reports on Human Rights
Practices for 2011, ECF No. 6-1 at 530. But laws
recognizing same-sex marriage may do little to protect a
transgender woman like Avendano-Hernandez from
discrimination, police harassment, and violent attacks in
daily life.
While the relationship between gender identity and
sexual orientation is complex, and sometimes overlapping,
the two identities are distinct. Avendano-Hernandez
attempted to explain this to the IJ herself, clarifying that
she used to think she was a “gay boy” but now considers
herself to be a woman. Of course, transgender women and
men may be subject to harassment precisely because of
their association with homosexuality. See, e.g., Hernandez-
Montiel, 225 F.3d at 1094 (surmising that “gay men with
female sexual identities” may be singled out for persecution
because of their presumed role in gay relationships); cf.
Latta v. Otter, 771 F.3d 456, 495 (9th Cir. 2014) (Berzon,
J., concurring) (“[T]he social exclusion and state
discrimination against lesbian, gay, bisexual, and
transgender people reflects, in large part, disapproval of
their nonconformity with gender-based expectations.”)
(footnote omitted). Avendano-Hernandez’s own
experiences in Mexico reflect this reality, as her
persecutors have often labeled her as “gay” and called her a
number of homophobic slurs that are also used against gay
men.
Yet significant evidence suggests that transgender
persons are often especially visible, and vulnerable, to
harassment and persecution due to their often public
AVENDANO-HERNANDEZ V. LYNCH 17
nonconformance with normative gender roles. 4 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. Indeed,
Mexico has one of the highest documented number of
transgender murders in the world. Avendano-Hernandez,
who takes female hormones and dresses as a woman, is
therefore a conspicuous target for harassment and abuse.
She was immediately singled out for rape and sexual
assault by police and military officers upon first sight, and
despite taking pains to avoid attracting violence when she
attempted to cross the border, she was still targeted.
Avendano-Hernandez’s experiences reflect how
transgender persons are caught in the crosshairs of both
generalized homophobia and transgender-specific violence
and discrimination.
The BIA acknowledged record evidence regarding
corruption among the Mexican police and military, but
concluded that such evidence was unrelated to Avendano-
Hernandez’s fears of torture as a transgender woman
because the corruption only occurred in the context of drug
4
The Department of Homeland Security recently acknowledged the
vulnerabilities of transgender persons, as Immigration and Customs
Enforcement issued detailed guidance to its officers and employees
regarding steps to assure the safety and proper care of transgender
individuals held in immigration detention. Thomas Homan, Executive
Associate Director, U.S. Immigration and Customs Enforcement,
Further Guidance Regarding the Care of Transgender Detainees, June
19, 2015, available at https://www.ice.gov/sites/default/files/
documents/Document/2015/TransgenderCareMemorandum.pdf.
18 AVENDANO-HERNANDEZ V. LYNCH
trafficking and accepting bribes. Again, this conclusion
misreads the record. The evidence before the agency does
not focus on drug trafficking-related police corruption, but
instead shows an increase in violence against gay, lesbian,
and transgender individuals during the years in which
greater legal protections have been extended to these
communities. See Vitug v. Holder, 723 F.3d 1056, 1066
(9th Cir. 2013) (noting that the emergence of gay rights
activism in the Philippines and an ordinance protecting
gays and lesbians from employment discrimination “do[]
not indicate that there is any less violence against gay men
or that police have become more responsive to reports of
antigay hate crimes”). Avendano-Hernandez’s expert
explained that the passage of these laws has made the
“situation . . . paradoxically become increasingly more
perilous [for the gay, lesbian, and transgender community],
as the public and authorities react to their expressions of a
form of sexuality that the culture does not embrace and, in
fact, fears.” Declaration of Dr. Nielan Barnes, Mar. 5,
2013, ECF No. 6-1 at 412. Indeed, the country’s highest
number of hate crimes in 2010 took place in Mexico City—
where arguably the most efforts have been made to protect
the rights of sexual minorities—and there is a continued
failure to prosecute the perpetrators of homophobic hate
crimes throughout Mexico. The agency’s focus on drug-
related police corruption is inexplicable in light of the
overwhelming record evidence of ineffective police
protection of transgender persons. 5
5
Thus, this case is distinguishable from Madrigal v. Holder, where
the agency’s failure to consider the effectiveness of the Mexican
government’s “willingness to control Los Zetas” required remand for
AVENDANO-HERNANDEZ V. LYNCH 19
On this record, we find that Avendano-Hernandez is
entitled to a grant of CAT relief on remand. “[U]nder the
ordinary remand rule, ‘we are not permitted to decide a
claim that the immigration court has not considered in the
first instance.’” Coronado v. Holder, 759 F.3d 977, 987
(9th Cir. 2014) (quoting Montes-Lopez v. Gonzales,
486 F.3d 1163, 1165 (9th Cir. 2007)). But here, the BIA
has already fully considered Avendano-Hernandez’s CAT
claim. The agency’s conflation of transgender and gay
identity does not constitute the application of “an erroneous
legal standard” that would normally require us to remand
the case for further consideration. Lopez v. Ashcroft,
366 F.3d 799, 806–807 (9th Cir. 2004). Instead, the
agency’s denial is based on its factual confusion as to what
constitutes transgender identity and its erroneous
conclusion that “[t]here is no substantial evidence in the
record . . . to show that any Mexican public official has
consented to or acquiesced in prior acts of torture
committed against . . . members of the transgender
community.” In light of Avendano-Hernandez’s past
torture, and unrebutted country conditions evidence
showing that such violence continues to plague transgender
women in Mexico, “no questions remain—she was tortured
and there is a substantial danger that she will be, if
returned.” Edu, 624 F.3d at 1147. We grant Avendano-
consideration of the question in the first instance. 716 F.3d 499, 507
(9th Cir. 2013). Here, in contrast, the agency appears to have
considered the question of whether police protections are effective, but
its conclusion that they are only ineffective in the context of
collaboration with drug traffickers is not supported by substantial
evidence.
20 AVENDANO-HERNANDEZ V. LYNCH
Hernandez’s petition in part and remand her case for a
grant of CAT relief.
CONCLUSION
The unique identities and vulnerabilities of transgender
individuals must be considered in evaluating a transgender
applicant’s asylum, withholding of removal, or CAT claim.
Here, the BIA properly found Avendano-Hernandez
ineligible for withholding of removal because of her
conviction for a particularly serious crime. We thus deny
the petition in part as to her withholding of removal claim.
We grant the petition in part and remand for the agency to
grant CAT deferral relief because the record compels the
conclusion that she will likely face torture if removed to
Mexico.
PETITION DENIED IN PART, GRANTED IN
PART, AND REMANDED.
Each party shall bear its own costs on appeal.