The federal appeals court based in Denver has ordered immigration authorities to reconsider the asylum application of a transgender Honduran woman, deciding by 2-1 that it was clear she would face persecution if deported to her country of birth.
An immigration judge previously found there to be no systemic or pervasive violence against transgender Hondurans, meaning Kelly Gonzalez Aguilar would not face a reasonable fear of harm upon returning to her home country. Gonzalez Aguilar — who was beaten as a child, deprived of an education, and raped as a child sex trafficking victim — argued the United States government's own research into Honduras revealed there was, in fact, significant danger the Honduran government was failing to address.
On Tuesday, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit agreed with her.
"The record shows extensive evidence of widespread violence against transgender individuals in Honduras," wrote Judge Robert E. Bacharach in the majority opinion. "Indeed, the record overwhelmingly shows that law-enforcement officers are frequently the perpetrators of violence against transgender women."
In a statement, Gonzalez Aguilar said she was grateful for the activists and lawyers who had supported her throughout her case. At one point, she was held in the immigrant detention center in Aurora, with tens of thousands of people signing petitions asking for her release.
“We are grateful that the court rightfully recognized the danger Kelly and other transgender people face in Honduras, and that she has a right to asylum protection in the United States,” added Tania Linares Garcia, senior attorney with the National Immigrant Justice Center.
According to the U.S. Department of State's 2016 Country Reports on Human Rights Practices, there had been 218 violent deaths reported for LGBT people in Honduras since 2009. Only 14 cases saw a conviction, and 171 were still under investigation at the time. While a 2013 law change enacted protections based on sexual orientation and gender identity, the State Department found that social discrimination was nonetheless widespread, with law enforcement responsible for harassing and abusing the LGBT community.
Last summer, the Inter-American Court of Human Rights deemed the Honduran government responsible for the 2009 shooting death of a trans woman. Human rights activists suggested the Honduran government should also be ordered to recognize trans people's preferred names and prevent police from detaining people on spurious grounds, The New York Times reported.
Bacharach wrote for himself and Judge Gregory A. Phillips, both of whom are Obama administration appointees. Judge Joel M. Carson III, an appointee of Donald Trump, would have allowed for Gonzalez Aguilar's deportation based on his belief that circumstances in Honduras were not as dire for the transgender community as the majority believed.
Large portions of the majority opinion pertained not only to Gonzalez Aguilar's asylum petition, but to countering Carson's interpretations of the Honduran government's treatment of LGBT people.
"Record evidence shows that Honduras has responded to protect LGBT individuals, including enacting a law that made it a hate crime to discriminate against LGBT individuals, prosecuting those accused of killing LGBT individuals, training its national police force to protect LGBT individuals, and increasing the number of officers on its task force devoted to investigating these crimes," Carson wrote. "I would posit that’s something a reasonable jurist could hang her hat on to find that Petitioner does not have a well-founded fear of persecution."
"These efforts do not provide a reasonable basis to doubt widespread persecution of transgender women in Honduras," Bacharach retorted.
The 10th Circuit had halted the deportation of Gonzalez Aguilar while her appeal was pending. Her lawyers said she was released from U.S. Immigration and Customs Enforcement custody in July 2020, after being detained for over 1,000 days.
Born in San Pedro Sula, Gonzalez Aguilar's mother moved to Mexico when Gonzalez Aguilar was a toddler. She and her sister, Tania, went to live with their uncle, who reportedly grew enraged that Gonzalez Aguilar was not acting like other boys her age.
The uncle forbade Gonzalez Aguilar from talking to girls or watching soap operas, and forced her to cut her hair to make her look masculine. Although the uncle had been physically abusive before, he started to beat Gonzalez Aguilar more frequently, three to six times per week, including with wires, ropes and cables. He also called her a homophobic slur and said he "was going to make (her) a man" through the beatings.
Gonzalez Aguilar withdrew from school because her classmates perceived her as gay. Teachers allegedly refused to come to her aid and the principal told her she was no longer welcome to attend classes unless she dressed like a boy.
Around age 12, Gonzalez Aguilar fled to Mexico with Tania in search of their mother. Instead, they fell into the hands of a cantina operator who forced Gonzalez Aguilar into sex work. Gonzalez Aguilar finally escaped to the United States in 2014, at age 17.
Once in Texas, after submitting her application for asylum, Gonzalez Aguilar began using her current name and came to the realization that she was transgender.
The government initiated deportation proceedings against Gonzalez Aguilar in 2017. Gonzalez Aguilar was detained in New Mexico, but Donald C. O'Hare, an immigration judge in Denver, heard her case. Although he found Gonzalez Aguilar to be credible, he denied her application for asylum and ordered her deported.
Because Gonzalez Aguilar's childhood treatment by her uncle was "more akin to abuse than persecution," O'Hare decided she did not qualify for protection as an LGBT child. As for Gonzalez Aguilar's fear of future persecution as a transgender adult, O'Hare believed that the Honduran government was "successfully making efforts" to protect trans women.
"Even though the government may not successfully prosecute all perpetrators of crimes against LGBT individuals, the legislative efforts to ensure LGBT rights — including protections for transgender women — reveal there is 'not systemic or pervasive persecution'," O'Hare wrote in his May 8, 2018 order.
Later in 2018, Edward R. Grant, a member of the Board of Immigration Appeals, upheld that decision, explaining that Gonzalez Aguilar had failed to show that "any individual in Honduras wishes her harm."
During oral arguments in March 2020 before the 10th Circuit panel, Gonzalez Aguilar's attorney disputed the government's reading of the State Department report as an indication that there was no overwhelming threat against trans women in Honduras.
"If you come away thinking, 'Gee, that law is really protecting transgender people,' then we just have different reading comprehension," said Nicole C. Henning. "T he report is extremely clear that there is widespread discrimination."
The government viewed as a positive development the fact that there have been "over a dozen" convictions in the 218 violent deaths of LGBT persons in Honduras. In response, Bacharach repeatedly pressed Deputy Assistant Attorney General Scott Stewart for any evidence that Honduras was enforcing its 2013 protections for the LGBT community.
"I'm not aware of something specific to that 2013 law saying this is how the law is being on-the-ground implemented," Stewart responded. In another exchange, Stewart attempted to argue that it was unclear how the Honduran government would have responded to Gonzalez Aguilar's abuse as a child, given that she had never sought police intervention.
"I'm just not following you," Bacharach cut in. "So when she's, like, nine or 10, she doesn't know to call the police to say, 'My uncle is beating me six times a week and calling me a f----t.' And from that we would infer, now that she's 22 or 23, she doesn't face a well-founded fear of persecution because, as a child, she didn't know to call the police?"
The panel's majority concluded the only reasonable interpretation of the evidence was that Gonzalez Aguilar would face a pattern of transgender persecution if she returned to Honduras. The laws on the books, Bacharach noted, appeared inadequate in light of the "continued onslaught against transgender women."
Carson accused the majority of misreading the evidence, while conceding that the Honduran government could do more to enforce its anti-discrimination laws.
"The perhaps unintended result of the majority opinion is a policy victory for certain asylum seekers. But in my opinion, one we should not award," he wrote in dissent.
The case is Gonzalez Aguilar v. Garland.
As a 13-year-old girl, I fled a civil war in my native country, Liberia. I watched as armed individuals held my mother at gunpoint, attempting…
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