## Facts

- Edin Carey Avendano-Hernandez is a transgender woman from Oaxaca, Mexico, who lived and presented as female from an early age.
- As a child, she suffered repeated physical and sexual abuse because of her gender identity and perceived sexual orientation.
- As an adult in Mexico, she was raped and sexually assaulted by Mexican police and military personnel.
- She entered the United States unlawfully around 2000 and was later convicted in California of felony DUI with bodily injury (Cal. Veh. Code § 23153(b)).
- After removal to Mexico, she experienced further serious abuse, returned to the United States, and sought withholding of removal and protection under the Convention Against Torture (CAT).
- An immigration judge found the conviction a “particularly serious crime,” barring withholding, and denied CAT relief; the judge’s analysis reflected confusion about transgender identity and refused to use female pronouns.
- The Board of Immigration Appeals affirmed, including the denial of CAT relief.

## Issues

1. Whether the agency permissibly classified petitioner’s felony DUI with bodily injury as a “particularly serious crime,” making her ineligible for withholding of removal.
2. Whether substantial evidence supported denial of CAT protection where petitioner had been sexually assaulted by Mexican police and military and presented evidence she would more likely than not be tortured if returned.

## Decision

- The court denied the petition as to withholding of removal, holding the agency acted within its discretion in finding the conviction a particularly serious crime.
- The court granted the petition as to CAT protection, holding the record compelled the conclusion that petitioner was more likely than not to be tortured if removed to Mexico.
- The court reversed the denial of CAT relief and remanded with instructions to grant CAT protection.

## Legal Principles

- A “particularly serious crime” determination barring withholding of removal is committed largely to the agency’s discretion; judicial review is limited to whether the correct legal standard was applied.
- CAT relief requires proof that it is more likely than not the applicant will be tortured in the country of removal by, or with the consent or acquiescence of, a public official.
- When public officials are the direct perpetrators of severe sexual violence, the conduct may constitute torture attributable to the state, and no separate showing of governmental acquiescence is required.
- Past torture by police or military is strong evidence of likely future torture and must be meaningfully weighed.
- Adjudicators must distinguish gender identity from sexual orientation; conflating the two can corrupt the assessment of risk and the evaluation of country-conditions evidence.
- The existence of formal anti-discrimination laws does not, by itself, rebut evidence of real-world violence and impunity relevant to the CAT likelihood inquiry.

## Conclusion

The Ninth Circuit left in place the agency’s particularly-serious-crime bar to withholding of removal but held that CAT protection was required because the record compelled a finding that a transgender woman previously tortured by Mexican police and military would more likely than not face torture again if returned.


Avendano-Hernandez v. Lynch, 800 F.3d 1072 (9th Cir. 2015)