Adena L. Wayne, ‘Unique Identities and Vulnerabilities: The Case for Transgender Identity as a Basis for Asylum’, 102 Cornell Law Review 241 (2016)

Abstract

On September 3, 2015, the U.S. Court of Appeals for the Ninth Circuit suspended the deportation of a transgender Mexican woman because the Board of Immigration Appeals (BIA or Board) had failed to consider the “unique identities and vulnerabilities” of transgender women in Mexico. The BIA had instead looked to recent, increased legal protections in Mexico for gay, lesbian, and bisexual individuals. Accordingly, the BIA had determined that the defendant, Edin Carey Avendano-Hernandez, would not face sufficient danger upon her return to Mexico to warrant relief under the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The Ninth Circuit reversed in part and remanded the case for a grant of relief under CAT because conditions in Mexico for transgender people continue to be exceedingly dangerous.