Edin Avendano-Hernandez v. Loretta E. Lynch

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.