Groundbreaking Victory Secured in Ninth Circuit for Transgender Immigrants

An appellate team led by Manatt associate Andrea Bird, with support from the Public Law Center, secured a groundbreaking victory for transgender immigrants seeking relief from torture when the United States Court of Appeals for the Ninth Circuit suspended the deportation of a transgender Mexican woman. The opinion in Avendano-Hernandez v. Lynch is far-reaching and precedent-setting, as it distinguishes gender identity from sexual orientation, identifies the unique vulnerabilities faced by transgender individuals, and recognizes that the Convention Against Torture (CAT) does not require acquiescence of a higher level of government when low-level public officials commit torture.

On September 3, 2015, the Ninth Circuit overturned a Los Angeles immigration court's 2013 decision to deport Carey Avendano-Hernandez to Mexico, ruling that she was protected under CAT. The three-judge panel determined the immigration court and Board of Immigration Appeals conflated gender identity with sexual orientation and erroneously concluded that the passage of laws in Mexico intended to protect gay and lesbian individuals demonstrated a commitment to protecting the rights of transgender people. In the opinion, the Ninth Circuit went further by clearly defining gender identity and sexual orientation, as well as clarifying the application of country conditions evidence.

In addition to suspending the deportation of Avendano-Hernandez, who came to the U.S. seeking protection after being beaten and raped by Mexican law enforcement and military officials, the decision opens the door for other transgender people fleeing persecution in their native lands and seeking refuge in the U.S.

Representing Avendano-Hernandez on a pro bono basis, Manatt's appellate team included associates Matthew Williamson and Janine Weiss, in addition to Bird. Support was also provided by Manatt partners Benjamin Shatz and Marilyn Martin-Culver.

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