Asylum

A somewhat recent report was released in May, entitled Human Rights Conditions of Transgender Women in Mexico. It is a joint publication of the Transgender Law Center and Cornell University Law School LGBT Clinic.

This report's purpose is to assess the country conditions in Mexico so that immigration judges and asylum officers can be fully informed about the issues facing transgender asylum applicants. This report examines whether recent legal reforms in Mexico have improved conditions for transgender women. It finds that transgender women in Mexico still face pervasive discrimination, hatred, violence, police abuse, rape, torture, and vicious murder. These problems have actually worsened since same-sex marriage became available in the country in 2010. The report also suggests ways to improve the information about county conditions available to U.S. immigration judges and asylum officers so they can better adjudicate the asylum, withholding of removal, and Convention Against Torture claims of Mexican transgender women.

A short version of the report's conclusions:

Many transgender Mexican women seek asylum in the United States claiming that, because of their gender identity or expression, they will face rape, torture, or murder if they return to Mexico. In these cases, immigration judges and asylum officers must determine how likely it is that the asylum-seeker will face persecution if she is removed. Despite recent legal reforms in Mexico, legal advocates and individuals living in both Mexico and the U.S. report that rates of violence against transgender women are higher than ever. Specifically, violence against the LGBT community has actually increased since the recognition of same-sex marriage throughout Mexico because of backlash to these progressive changes in the law.

Despite the legal changes for same-sex couples in recent years, transgender women in Mexico still face pervasive persecution based on their gender identity and expression. Indeed, violence against LGBT people has actually increased, with transgender women bearing the brunt of this escalation. Changes in the laws have made the LGBT communities more visible to the public and more vulnerable to homophobic and transphobic violence. Increased visibility has actually increased public misperceptions and false stereotypes about the gay and transgender communities. This has produced fears about these communities, such as that being gay or transgender is “contagious” or that all transgender individuals are HIV positive. These fears have in turn led to hate crimes and murders of LGBT people, particularly transgender women.

Immigration judges in the United States often conflate the particular social groups of transgender women and gay men. Moreover, immigration judges sometimes give excessive weight to reports of minor societal advancements for gay communities in Mexico. Consequently, without thoroughly examining the actual conditions in Mexico for transgender women, immigration judges are not able to assess asylum cases fully and accurately.

The report recommends that information distinguishing between issues facing the gay and transgender communities be made available in Executive Office for Immigration Review (EOIR) materials. For example, the EOIR can update their training modules with information about the transgender community specifically, so that judges can fully understand the distinct issues facing transgender women. In addition, applicants and their advocates can provide documentation of anti- transgender abuse to ensure that judges understand the issues specific to this community and make more sound findings in asylum, withholding of removal, and Convention Against Torture cases.

Researchers report that transgender women in Mexico are brutally targeted by state authoriities including police and military as well as being persecuted by the drug cartels. Their "human rights" are "invisibled." Mexico is second only to Brazil in reported hate crimes motivated by transphobia,

In order to escape the violence, some Mexican transgender women migrate to the US and seek asylum.

The report also highlights how the US immigration system has made accessing asylum particularly difficult. Immigration officials have refused to recognize transphobia and violence in migrants’ communities of origin during asylum proceedings. This, coupled with the transphobia and racism embedded in the immigration system itself, has contributed to the erasure of past experiences of violence and the denial of asylum for many transgender women. In 2012, less than 2 percent of Mexican applicants were granted asylum. There are currently no statistics recorded showing how many asylum-seekers were transgender people, compounded by the fact that many fear persecution based on their gender identity.

Of course, in Donald Trump's America...Wall.

One of the report’s key findings is that the expansion of LGBT rights in Mexico, particularly same-sex marriage, has led to backlash against the transgender community. The legal recognition of same-sex couples has increased societal awareness about the LGBT community and produced significant backlash.

In other words, just like America!

In 2015, there was an important asylum ruling in favor of transgender migrants. The United States Court of Appeals for the Ninth Circuit—with appellate jurisdiction over the district courts in Alaska, Arizona, and the central district of California—recognized the mistake of confusing gender identity with sexual orientation in the case of a Mexican transgender woman, Erin Avendano-Hernandez. The Board of Immigration Appeals (BIA) had previously ruled that the implementation of the same-sex marriage legislation in Mexico would make torture unlikely. The Ninth Circuit ruled that the BIA insufficiently considered transgender issues in their decision.

The Ninth Circuit granted Avendano-Hernandez asylum, and reasoned that transgender persons in Mexico are particularly vulnerable to harassment and persecution due to their public nonconformance with gender roles, and that the Mexican police specifically target the transgender community with sexual and money extortion. The court also stated that there is an epidemic of unsolved violent crimes against transgender persons in Mexico, that Mexico has one of the highest documented numbers of murders of transgender people in the world, and that Avendano-Hernandez, who takes female hormones and dresses as a woman, is a target for harassment and abuse.

This is not the usual outcome.

Too often, transgender women who come to the U.S. desperately seeking safety from persecution instead find more violence and abuse in detention centers—only to ultimately be deported by immigration judges who do not understand the life-threatening dangers they face in Mexico. We need immigration judges to make asylum decisions based on the realities transgender women face in Mexico, and this report can be an important tool to educate them.

--Flor Bermudez, Transgender Law Center

Bambi Salcedo of TransLatin@ Coalition shares her experiences:

 

 

More Information is available in TransVisible: Transgender Latina Immigrants in US Society

There is still a lot of denial from society about the existence of our community. We need to raise awareness and bring consciousness about…who we are, what are the things that need to be addressed. But we cannot do it alone; we need everyone to be on the same page, politicians, churches, schools, businesses, just our society as a whole needs to learn and understand that we are here to stay.

--Salcedo

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