Avendano-Hernandez v. Lynch, No. 13-73744 (9th Cir. 2015)Annotate this Case
Petitioner, a transgendered woman, petitioned for review of the BIA's denial of withholding of removal and denial of deferral of removal under the Convention Against Torture (CAT). Petitioner 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 BIA concluded that this conviction constitutes a particularly serious crime, rendering petitioner ineligible for withholding of removal. The court concluded that the BIA's decision was within its discretion. However, the court concluded that the IJ and the BIA erred in denying petitioner's application for CAT relief where the IJ failed to recognize the difference between gender identity and sexual orientation, refusing to allow the use of female pronouns because she considered petitioner to be “still male,” even though she dresses as a woman, takes female hormones, and has identified as woman for over a decade. The BIA wrongly adopted the IJ's analysis, and erred in assuming that recent anti-discrimination laws in Mexico have made life safer for transgender individuals while ignoring significant record evidence of violence targeting them. Accordingly, the court granted the petition in part and remanded for a grant of relief under the CAT.