Edin Avendano-Hernandez was repeatedly beaten, sexually assaulted, and verbally abused by relatives and police officers because she is a transgender woman. While in the United States, she was twice convicted of DUI-related offenses, including one DUI involving bodily injury. The Ninth Circuit affirmed the agency's determination that this conviction was a particularly serious crime, noting that DUI crimes are inherently dangerous, and that Avendano-Hernandez inflicted injuries (albeit relatively minor ones) on the driver of another car. The Ninth Circuit did note that it was improper to characterize an additional sentence imposed for a probation violation as a sentencing enhancement, but found that the agency's error on this point was harmless.
Turning to Avendano-Hernandez's application for protection under the Convention Against Torture, the Ninth Circuit disagreed with the agency's finding that she failed to show that the Mexican government would more likely than not consent to or acquiescence in her torture. The court noted that Avendano-Hernandez had already been raped by government officials, and that rape was itself a form of torture. Thus, because she had already been tortured by government officials, she need not make any of government acquiescence to torture by private individuals. Turning to the issue of future torture, the Ninth Circuit chastised the agency for conflating laws that protect the gay and lesbian community with government protection of the transgender community. "While the relationship between gender identity and sexual orientation is complex, and sometimes overlapping, the two identities are distinct." Given that Mexico has one of the highest transgender murder rates in the world, the Ninth Circuit determined that Avendano-Hernandez was entitled to protection under the Convention Against Torture.
The full text of Avendano-Hernandez v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/03/13-73744.pdf