A federal court has ruled that an illegal immigrant and convicted felon can’t be deported back to Mexico because he now identifies as a transgender woman. The court found that Edin Carey Avendano-Hernandez could be subject to torture if she is returned to her home country. A three-member panel of the 9th U.S. Circuit Court of Appeals, in San Francisco, found that a federal immigration board had confused sexual orientation with gender identity when it ordered the deportation of Avendano-Hernandez, according to Reuters. [2] Consequently Avendano-Hernandez must be allowed to stay in the U.S., because he “more likely than not” will be tortured if returned to Mexico. [3] Judge Jacqueline Nguyen, an Obama appointee, chastised immigration officials for improperly handling Avandano-Hernandez’s gender identity. [3]
Edin Carey Avendano-Hernandez was born male in Mexico, and claims to have been raped by his brothers and suffered other torments. In 2000, he illegally entered the U.S. and took up residence in Fresno, California. Avendano-Hernandez also started taking female hormones and began living openly as a woman in 2005. In 2006, he committed two separate drunk driving offenses, the second of which injured two people and resulted in a felony conviction. After serving a year in jail, he was deported back to Mexico in 2007. [3] Back in Mexico, Avendano-Hernandez claims to have been subjected to more harassment from family and neighbors and to have been raped by members of the Mexican army. He illegally entered the U.S. again and, after being arrested, petitioned for sanctuary in the U.S. under the U.N. Convention Against Torture (CAT), arguing that deporting him would violate the CAT because he would more likely than not experience torture at the hands of Mexican authorities. [3] “The [judge] 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,” Nguyen’s decision says. “Although the BIA correctly used female pronouns for Avendano-Hernandez, it wrongly adopted the [judge’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 ignoring significant record evidence of violence targeting them.” [3] “[L]aws 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,” she said. She added that Mexican police sometimes target the transgendered for extortion and sexual favors, and said the country has an alarming number of unsolved murders of the transgendered. The decision technically doesn’t spare Avendano-Hernandez from deportation, but it means his deportation will be delayed until he no longer faces a risk of being tortured. [3] After the latest ruling, her lawyer, Munmeeth Soni, told Associated Press: “She’s ecstatic. The fear was constantly hanging over her head that she might have to one day turn herself in to return to Mexico. “She no longer lives under that fear.” [5] [6] [8] Some may argue that Avendano-Hernandez’s felony conviction should invalidate her right to seek asylum… and they are perfectly right… but the court’s politically correct recognition of systemic violence and discrimination against transgender individuals points to the reality that more than 50 percent of transgender women and men suffer from anxiety and depression, according to a study by the Journal of Consulting and Clinical Psychology, and a quarter of transgender individuals are estimated to suffer from alcohol and substance abuse. [4] So… that’s why we should keep them in the United States… because they are sick and troubled individuals… therefore dysfunctional… so in need to a welfare state to leech on. It’s not bad enough that they are illegals and even “felons,” in this particular case, among this horrible bunch we now have to cherry pick and keep those who need hormone therapy, psychiatric care, detox, rehab and possibly even a sex reassignment surgery and make them American citizens with benefits.
Tom Fitton
While the decision only applies to Avendano-Hernandez, it could encourage more transgendered Mexicans to seek asylum in the U.S., as Nguyen’s description of torture in Mexico is quite general. [3] This ruling also sets a precedent that LGBTQ individuals can illegally cross the [10] Tom Fitton, president of Judicial Watch, said on “Fox and Friends Weekend” that this is an ideological decision that’s not actually based on U.S. immigration law. “The Obama administration is very friendly to individuals who are transgendered who are illegal immigrants,” FItton said. “They provide them taxpayer-funded hormone treatments [and] special accommodations.” Fitton said the fact that they were even considering deporting Avendano-Hernandez, who was convicted of two DUIs, shows how serious this individual’s criminal activity was. “It’s just another reason for more illegal aliens to come in and claim this type of protection,” Fitton said. “We’ve seen asylum-seeking aliens – or at least the number of aliens seeking asylum – skyrocket during the Obama administration.” [1] Like Steven Crowder puts it: “This is progress, people. Kim Davis, who’s citing her first amendment constitutional right to practice her religion, she goes to jail for not giving marriage licenses. But this right here, this is what matters most.” [14]
