Avendano-Hernandez v. Lynch

Edin Avendano-Hernandez (plaintiff) was a Mexican citizen and a transgender woman who had suffered mental, physical, and sexual abuse in her native country since she was a child. Her older brothers and cousins beat, sexually assaulted, and raped her, and she also faced abuse from her parents and the community. Avendano-Hernandez eventually came to the United States (defendant) without documentation and began living openly as a woman. Avendano-Hernandez was convicted in the United States of both a misdemeanor and a felony charge of driving under the influence of alcohol. After she was released from her jail sentence for the felony, she was deported back to Mexico. Avendano-Hernandez again faced violence and harassment from her family and the community. On two separate occasions, she was subjected to severed physical and sexual violence at the hands of uniformed, on-duty Mexican police and military officials because of her identity as a transgender woman. Avendano-Hernandez fled back to the United States but was eventually arrested for parole violations and placed in removal proceedings. She petitioned for withholding of removal and Convention Against Torture (CAT) relief, which would also preclude removal. The immigration judge denied her application for withholding of removal on the basis of her felony conviction for drunk driving, and the Board of Immigration Appeals (BIA) upheld the decision. The BIA additionally denied her CAT claim, on the grounds that she had failed to demonstrate that she was more likely than not to face future torture with the Mexican government’s consent. Avendano-Hernandez’s appeal came before the Ninth Circuit court of appeals.