Court Grants Review of Transsexual’s Asylum Claim
Some of you may have picked up the news of Nancy Arabillas Morales’ bid for asylum last month. An article in February’s edition of the Lesbian/Gay Law Notes goes into great detail about this case:
- Morales, born Juan Manuel Arabillas Morales, began using the name Nancy and dressing as a woman at age 14 when she moved out of her abusive family’s home. She was arrested for working in a bar as a minor and placed in jail, where prison officials laughed and ignored her cries for help while she was raped by several inmates. When she attempted to cross the U.S.-Mexico border, Morales was attacked and raped by seven men. She did not report the incident to the police for fear of being beaten or forced to pay a bribe. Morales eventually fled to the United States, where she has lived since 1986.
- In April 2002, Morales was convicted of communication with a minor for immoral purposes. She had also been charged with third degree rape of a child and third degree child molestation,but was convicted only of communication with a minor. The Department of Homeland Security placed Morales in removal proceedings for being illegally present within the United States, and also for having been convicted of a crime “involving moral turpitude.” Morales applied for asylum, withholding of removal, and protection under CAT, all of which were denied.
Nancy Arabillas Morales’ claim for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) was first denied by an Immigration Judge (IJ), and then by the Board of Immigration Appeals when she appealed the IJ’s decision. The Mexican male-to-female transsexual then appealed the decision of the Board of Immigration Appeals.
In Morales v. Gonzales, 472F.3d 689 (9th Cir., Jan. 3, 2007), Judge David R. Thompson of the U.S. Court of Appeals for the 9th Circuit remanded Morales’ claim for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) to the Board of Immigration Appeals to the IJ who originally denied the claim.
Judge Thompson’s holdings, according to Bryan Johnson’s summary in the Lesbian/Gay Law Notes:
- Senior Circuit Judge David R. Thompson, writing for the court, held that the IJ had incorrectly relied on facts that did not relate to the crime for which Morales was convicted that were contained in the appellate court’s opinion affirming her conviction of communication with a minor, to determine that Morales had committed a “particularly serious” crime. The IJ had concluded that Morales would have been eligible for asylum and withholding of removal, “but for [the] finding that she had been convicted of a particularly serious crime.”
- Judge Thompson also held that the IJ had failed to apply the correct legal standard to Morales’s CAT claim, because the IJ had only taken into consideration testimony establishing “direct government action”, but had ignored the “willful blindness” of the prison officials who had watched and laughed at Morales while she was repeatedly raped by fellow prison inmates.
The IJ must now “determine whether Morales committed a “particularly serious” crime barring her from an otherwise eligible asylum claim. In addition, the IJ must consider the “willful blindness” of prison officials in establishing whether it was “more likely than not” that Morales would be tortured if she were returned to Mexico.
According to Kenneth Ofgang’s article:
- 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.
You can read more details of Morales’ case on page 20 of February’s edition of the Lesbian/Gay Law Notes in “9th Circuit Grants Review of Mexican Transsexual’s Asylum Claim.”