You can now add to the judicially recognized “anchor babies” concept the “anchor dress.”
A three-judge panel of the 9th U.S. Circuit Court of Appeals has determined that a convicted felon illegal immigrant may not yet be deported to Mexico because he identifies as a women, wears dresses and claims to have been raped and tortured by Mexican officials.
The panel said judges had erred in assuming that recent changes in Mexican law allowing same-sex marriage reflected a relaxing of attitudes toward the transgendered. According to the ruling, the evidence of abuse is based only on the word of the petitioner Erin Carey Averdano-Hernandez, which an immigration judge found “credible.”
In 2006, Avendano-Hernandez committed two separate drunk driving offenses. One of these injured two people and resulted in a felony conviction. After a year in jail, he was deported to Mexico, but returned and was arrested.
The 9th Circuit judges remanded the case saying the petitioner was eligible to stay in the U.S. under the Convention Against Torture (CAT).
To those judges the word of a deportee effectively takes precedent over any presumption of law abiding by Mexican officials:
The agency, however, wrongly concluded that no evidence showed “that any Mexican public official has consented to or acquiesced in prior acts of torture committed against homosexuals or members of the transgender community.” In fact, Avendano-Hernandez was tortured “by . . . public official[s]”—an alternative way of showing government involvement in a CAT applicant’s torture. 8 C.F.R. § 1208.18(a)(1). Avendano-Hernandez provided credible testimony that she was severely assaulted by Mexican officials on two separate occasions: first, by uniformed, on-duty police officers, who are the “prototypical state actor[s] for asylum purposes,” BoerSedano, 418 F.3d at 1088, and second, by uniformed, onduty members of the military. Such police and military officers are “public officials” for the purposes of CAT.