Edin Avendano-Hernandez v. Loretta E. Lynch
800 F.3d 1072
9th Cir.2015Background
- Petitioner Edin Avendano‑Hernandez is a transgender woman from Oaxaca, Mexico, who suffered repeated sexual assaults, rape, and severe abuse in Mexico, including assaults by uniformed Mexican police and military officers. The IJ found her credible and the BIA affirmed credibility.
- She entered the U.S. unlawfully in 2000, later began living openly as a woman and taking female hormones, and committed two DUI offenses in California; a 2006 felony conviction under Cal. Veh. Code § 23153(b) (DUI causing injury) led to 364 days incarceration and probation.
- She was removed to Mexico in 2007, returned to the U.S. in 2008, and faced new harassment and violent assaults in Mexico that prompted her to apply for withholding of removal and relief under Article 3 of the Convention Against Torture (CAT).
- The IJ and BIA concluded the 2006 felony DUI conviction was a "particularly serious crime," making her ineligible for withholding of removal; the BIA denied CAT relief, finding insufficient evidence that Mexican officials would consent or acquiesce to torture.
- The Ninth Circuit affirmed the BIA’s finding that the DUI conviction is a particularly serious crime (thus denying withholding), but reversed the CAT denial, holding the record compels CAT relief because petitioner was tortured by public officials and faces a likelihood of future torture.
Issues
| Issue | Avendano‑Hernandez's Argument | Lynch (Government)'s Argument | Held |
|---|---|---|---|
| Whether 2006 felony DUI causing injury is a "particularly serious crime" barring withholding | Conviction not particularly serious given injury extent and sentencing context | Conviction for DUI causing injury is inherently dangerous and can be found particularly serious on case‑by‑case basis | Court: BIA did not abuse discretion; conviction is a particularly serious crime (ineligible for withholding) |
| Whether petitioner’s prior rape/assaults by Mexican police/military constitute past torture by public officials for CAT | The assaults by uniformed officers were torture inflicted by public officials, satisfying CAT’s government involvement requirement | BIA: petitioner failed to show Mexican public officials consented to or acquiesced in torture | Court: Holds assaults by on‑duty police/military are torture by public officials; BIA erred in requiring separate acquiescence showing |
| Whether petitioner likely faces future torture if returned (country‑conditions analysis) | Past torture plus country evidence of targeted violence against transgender persons shows likelihood of future torture | BIA relied on Mexico’s recent anti‑discrimination laws and imperfect evidence to downplay risk; argued protections reduce likelihood | Court: Record compels conclusion of likely future torture for transgender persons; BIA’s reliance on laws and conflation of transgender identity with sexual orientation was erroneous |
| Whether agency improperly conflated gender identity and sexual orientation in CAT analysis | Agency erred by treating transgender identity as equivalent to homosexuality and by assuming legal protections for gays protect transgender persons | Agency argued legal changes in Mexico lessen risk to sexual minorities generally | Court: Agency’s conflation was error; transgender persons face distinct, heightened risks that BIA failed to account for |
Key Cases Cited
- Ornelas‑Chavez v. Gonzales, 458 F.3d 1052 (9th Cir. 2006) (creditability finding accepted on review)
- Delgado v. Holder, 648 F.3d 1095 (9th Cir. 2011) (BIA may designate particularly serious crimes case‑by‑case; sets Frentescu standard)
- Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir. 2003) (rape can constitute torture)
- Edu v. Holder, 624 F.3d 1137 (9th Cir. 2010) (remanding for CAT relief where petitioner was raped)
- Madrigal v. Holder, 716 F.3d 499 (9th Cir. 2013) (government acquiescence need not be nationwide; analysis of government control/reasonable protections)