Immigration

The trending issue of transgender rights advanced in the immigration law context as Andrea Ruth Bird of Manatt, Phelps & Philips LLP, co-counsel Munmeeth Kaur Soni of Public Law Center and other attorneys persuaded a 9th U.S. Circuit Court of Appeals panel to issue three separate opinions granting relief to three transgender Mexican women in the U.S. who fear death if deported.

The women, including lead petitioner Carey Avendano-Hernandez, qualify for suspension of deportation under the international human rights treaty known as the Convention Against Torture, the panel ruled in a major step forward for transgender migrants.

The panel faulted the Obama administration's immigration officials for failing to grasp the nuanced difference between gender identity and sexual orientation.

Bird and Soni teamed with Manatt's Matthew D. Williamson and Janine A. Weiss to achieve the published opinion in Avendano-Hernandez v. Lynch, 2015 DJDAR 10278 (Sept. 3, 2015). The companion cases, on which Soni was also co-counsel, resulted in similar Convention Against Torture and additional relief in unpublished memorandums.

Each case reversed negative immigration court outcomes for the petitioners.

Lawyers for the petitioners in the unpublished cases included Anthony Gomez and Steven Rice, formerly of Crowell & Moring LLP, M.C. Sungaila of Haynes and Boone LLP, Lindsey E. Martinez of Snell & Wilmer LLP and Julie Greenwald Marzouk of Chapman University School of Law.

Lawyers said the opinion will be especially useful to the Southern California removal defense bar because of a pending government plan to house as many as 60 transgender women facing deportation at its Adelanto Detention Facility southeast of Los Angeles, concentrating such cases there.

Soni said the result was the outcome of several years of hard work.

"Shortly after the opinion was published, a transgender case I had before the 11th Circuit changed dramatically," she said. "The Office of Immigration Litigation said that in light of Avendano-Hernandez, they would agree to return my 11th Circuit case to the Board of Immigration Review for rehearing. So the impact was immediate and national. It's been clear that immigration judges did not understand who trans individuals are. Now the 9th Circuit has put that to rest."

"This is the first [immigration] case to recognize the difference between transgenders and gays," Sungaila said.

Added an immigration law authority not involved in the case, Karen Musalo of UC Hastings College of the Law's Center for Gender and Refugee Studies, "No other decision so clearly recognizes that gender identity is not the same as sexual orientation. In so doing, the court moves the jurisprudence forward in a way that extends dignity as well as the promise of protection to transgender individuals."

Bird was on the case from its start in immigration court, alerted to the transgender migrants' plight by Soni.

"Munmeeth was in ys were allowed to marry in Mexico City. We pointed out that that is a different right entirely."

The IJ, Lorraine J. Munoz, was dismissive of Avendano-Hernandez' claims and ordered her continued detention on $50,000 bond, an amount impossible to raise. Bird took that aspect of the case to the Board of Immigration Appeals, which agreed it was too high.

Munoz lowered the sum to $10,000 and Bird raised it through charitable contributions. "Everyone will be getting their money back, now that the court has ordered deferral of removal," Bird said. "My client is now working at a restaurant. She's very happy now. And we on her team are thrilled."