Thursday, January 4, 2007
Court Reinstates Mexican Transsexual’s Bid for Asylum
By KENNETH OFGANG, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday ordered the Board of Immigration Appeals to reconsider its order that a Mexican transsexual be removed to her native country, where she says she is likely to be physically abused because of her sex change.
The panel said the BIA erred in summarily affirming an immigration judge’s ruling that Nancy Arabillas Morales, who used to be Juan Manuel Arabillas Morales, does not qualify for asylum, withholding of removal, or relief under the Convention Against Torture.
Morales, the judges said, may qualify for relief based on a well-founded fear that she will be attacked because of her trangendered status. Morales testified that such attacks occurred in the past, and the court said the IJ erroneously relied on Morales’ admission that her attackers were not associated with the government.
Under Ninth Circuit precedent, Senior Judge David Thompson explained, Morales is entitled to relief if she can show “willful blindness” on the part of the authorities.
The Department of Homeland Security initiated removal proceedings after Morales was convicted in 2002 of communication with a minor for immoral purposes in Washington state. She had also been charged with child rape and child molestation, but the jury deadlocked on the former charge and acquitted on the latter.
The DHS charged that Morales was subject to removal because she had entered the country illegally and because she had been convicted of a crime involving moral turpitude.
Morales was the only witness at her removal hearing. Now 38, she testified that she began using the name Nancy at age 14 because she felt more female than male, and soon left home because her father beat her and would not allow her to dress as a female.
She testified that she was raped by her brother at age eight, was raped by a customer at the bar where she worked, and was raped by several men while jailed for working in a bar while under age. She was also beaten by a police officer, she testified, before she left her hometown of San Luis Potosi and moved to Matamoros, closer to the U.S. border, at age 16.
She came to the United States, she testified, in 1986, briefly returning to Mexico on a couple of occasions. She told the IJ that she is afraid that if returned to Mexico, she is likely to be assaulted because she is “more of a woman” now.
The IJ ruled that Morales is removable, both for having entered illegally and for having been convicted of a crime involving moral turpitude; that she showed a well-founded fear of persecution but that her conviction for a “particularly serious crime” made her ineligible for asylum or withholding of deportation; and that she failed to show a likelihood of being tortured if returned to Mexico, as required to obtain CAT relief.
In reaching the last conclusion, the IJ noted that her testimony on the issue was “very general,” that she had not been attacked on her brief return visits to Mexico, that there is evidence of growing acceptance of gay people in parts of that country, that she had admitted to a better relationship with her family since she came to the United States and started sending money home; and that the attacks that she had been subjected to all occurred more than 20 years ago.
Thompson, writing for the Court of Appeals, agreed with the IJ that Morales is removable and noted that the Ninth Circuit lacks jurisdiction to review a removal order when the alien has been convicted of a crime of moral turpitude.
But he rejected the government’s contention that the court similarly lacks jurisdiction to review the denials of asylum, withholding of removal, and CAT relief. Those issues raise questions of law as to which the Court of Appeals has jurisdiction under the Immigration and Nationality Act, the judge declared.
The ruling that Morales committed a “particularly serious crime” was erroneous, Thompson went on to say, because it was based on the appellate court’s recitation of the facts of the case. But many of those facts related to the two charges on which the defendant was not convicted, and thus should not have been relied upon, the judge said.
As to the CAT claim, the judge said, the IJ was so focused on the fact that the men whom Morales testified “raped,” “slapped,” and “harassed” her were not police officers or otherwise connected with the government that he failed to apply the correct standard.
“The IJ did not mention the majority of Morales’s testimony, which she contends established her past torture. Most notably, the IJ’s opinion included no reference to prison officers laughing and ignoring Morales’s screams and cries while she was repeatedly raped by fellow inmates. The IJ discussed only direct government action, and apparently afforded no weight to the instances of violence and rape that Morales was subjected to but which she did not report because of ‘willful blindness’ if not outright acceptance by police officers who would only throw her in jail or extort bribes from her if she attempted to report the incidents.’
The judge continued:
“The IJ did not state specifically that he was denying Morales’s application for CAT relief based on her failure to allege a connection between her attackers and the Mexican government....Nevertheless, it appears that by focusing on direct government involvement or connection with Morales’s attackers, the IJ implicitly ignored this court’s precedent regarding whether there was ‘willful blindness’ on the part of government officials.”
The case is Morales v. Gonzales, 05-70672.
Copyright 2007, Metropolitan News Company