Hernandez-Montiel v. INS
225 F.3d 1084 (9th cir. 2000)
Hernandez-Montiel v. INS was the first published decision that dealt with a transgender applicant.
Geovanni Hernandez-Montiel identified as a “gay male with female sexual identity” from Mexico. Hernandez-Montiel was detained, sexually assaulted, and threatened by the Mexican police because they considered him homosexual and because he was wearing female clothing.
The IJ framed Hernandez-Montiel’s particular social group as “‘homosexual males who wish to dress as a woman [sic]’” and found that the applicant’s choice to sometimes wear female clothing was “volitional” and, therefore, not immutable.
The BIA dismissed Geovanni's appeal from the IJ's decision. The BIA agreed that Geovanni gave credible testimony, but found that he failed to establish his statutory eligibility for asylum. The BIA found that Geovanni did not meet his burden of "establishing that the abuse he suffered was because of his membership in a particular social group," which the BIA classified as "homosexual males who dress as females."
Fortunately, the U.S. Court of Appeals for the Ninth Circuit recognized that Hernandez-Montiel’s outward expression of his gender identity through his attire was a manifestation of his fundamental identity, and as such, persecution for this reason qualified him for asylum.
The court wrote, “Gay men with female sexual identities outwardly manifest their identities through characteristics traditionally associated with women, such as feminine dress, long hair and fingernails … Their female sexual identities unite this group of gay men, and their sexual identities are so fundamental to their human identities that they should not be required to change them.”
As a result, in the Ninth Circuit, it was established that a gender-nonconforming individual who could frame one’s transgender identity in terms of sexual orientation would fit into a recognized particular social group.
The Court held that, "the BIA's decision denying Hernandez-Montiel asylum on statutory grounds is fatally flawed as a matter of law and is not supported by substantial evidence. Through police harassment and rape, Geovanni suffered past persecution in Mexico on account of his sexual orientation for being a gay man with a female sexual identity. Because that showing is unrebutted, we must presume that he has a well-founded fear of persecution if he returns. He is entitled to asylum and withholding of deportation. We therefore grant the petition for review and remand the case to the BIA with instructions to grant his application for withholding of deportation and to present this case to the Attorney General for the exercise of her discretion to grant asylum."
Geovanni Hernandez-Montiel identified as a “gay male with female sexual identity” from Mexico. Hernandez-Montiel was detained, sexually assaulted, and threatened by the Mexican police because they considered him homosexual and because he was wearing female clothing.
The IJ framed Hernandez-Montiel’s particular social group as “‘homosexual males who wish to dress as a woman [sic]’” and found that the applicant’s choice to sometimes wear female clothing was “volitional” and, therefore, not immutable.
The BIA dismissed Geovanni's appeal from the IJ's decision. The BIA agreed that Geovanni gave credible testimony, but found that he failed to establish his statutory eligibility for asylum. The BIA found that Geovanni did not meet his burden of "establishing that the abuse he suffered was because of his membership in a particular social group," which the BIA classified as "homosexual males who dress as females."
Fortunately, the U.S. Court of Appeals for the Ninth Circuit recognized that Hernandez-Montiel’s outward expression of his gender identity through his attire was a manifestation of his fundamental identity, and as such, persecution for this reason qualified him for asylum.
The court wrote, “Gay men with female sexual identities outwardly manifest their identities through characteristics traditionally associated with women, such as feminine dress, long hair and fingernails … Their female sexual identities unite this group of gay men, and their sexual identities are so fundamental to their human identities that they should not be required to change them.”
As a result, in the Ninth Circuit, it was established that a gender-nonconforming individual who could frame one’s transgender identity in terms of sexual orientation would fit into a recognized particular social group.
The Court held that, "the BIA's decision denying Hernandez-Montiel asylum on statutory grounds is fatally flawed as a matter of law and is not supported by substantial evidence. Through police harassment and rape, Geovanni suffered past persecution in Mexico on account of his sexual orientation for being a gay man with a female sexual identity. Because that showing is unrebutted, we must presume that he has a well-founded fear of persecution if he returns. He is entitled to asylum and withholding of deportation. We therefore grant the petition for review and remand the case to the BIA with instructions to grant his application for withholding of deportation and to present this case to the Attorney General for the exercise of her discretion to grant asylum."