Federal Court: Illegal Immigrant and Convicted Felon Can’t Be Deported Because He’s Transgender

Blake Neff, Daily Caller, September 3, 2015

A federal appeals court has ruled that an illegal immigrant and convicted felon can’t be deported back to Mexico because he identifies as a transgender woman, which leaves him vulnerable to torture back in his home country.

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.

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.

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Now, a three-judge panel on the Ninth Circuit Court of Appeals says Avendano-Hernandez must be allowed to stay in the U.S., because he “more likely than not” will be tortured if returned to Mexico.

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The belief that Avendano-Hernandez was raped and tortured in Mexico appears to be based entirely on his own claims, which were deemed to be “credible” by his immigration judge.

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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.

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