The San Francisco-based 9th U.S. Circuit Court of Appeals issued the ruling in the case of a transgender Mexican woman who sought shelter in the USA on the grounds that she would likely be tortured if returned to Mexico.

In granting Edin Carey Avendano-Hernandez the right to remain in the United States, a three-member 9th US Circuit Court of Appeals panel found that a federal immigration board that ordered her deported had mixed sexual orientation with gender identity. She added that Mexican police sometimes target the transgendered for extortion and sexual favors, and said the country has an alarming number of unsolved murders of the transgendered. From a very young age, she identified as a girl, even though she had been born biologically male.

The court granted Convention Against Torture (CAT) protection to Avendano-Hernandez.

Writing for the three-judge panel, Circuit Judge Jacqueline Nguyen said the immigration judge, in denying Avendano-Hernandez’s petition for CAT relief, was “ironically exhibiting some of the same misconceptions about the transgender community that Avendano-Hernandez faced in her home country”. But after being convicted twice for driving under the influence of alcohol, Avendano-Hernandez was deported back to Mexico in 2007. Her behavior and appearance were feminine and she felt more comfortable wearing her sister’s clothes than her own, her lawyers said.

That abuse continued into her adulthood and she suffered at the hands of the Mexican police and military before seeking refuge in the United States.

The decision also criticizes immigration officials: “Although the [Board of Immigration Appeals] correctly used female pronouns for Avendano-Hernandez, it wrongly adopted the [judge’s] analysis, which conflated transgender identity and sexual orientation”. The court said transgender people face a unique level of danger.

Nor did she accept the board’s conclusion that Avendano-Hernandez failed to show a likelihood of future torture, an argument that “primarily relied on Mexico’s passage of laws purporting to protect the gay and lesbian community”.

While back in Mexico, Avendano Hernandez was again beaten and raped by police officers, and illegally returned to the U.S.in 2008. “Significant evidence suggests that transgender persons are often especially visible, and vulnerable, to harassment and persecution due to their often public nonconformance with normative gender roles”. “Laws recognizing same-sex marriage may do little to protect a transgender woman like Avendano-Hernandez from discrimination, police harassment and violent attacks in daily life”, Nguyen wrote. She began hormone therapy and presenting as the woman she knows herself to be in 2005.

According to a 2013 report by the UCLA Williams Institute, there are at least 267,000 undocumented LGBT immigrants living in the United States, 70 percent of whom are Hispanic.