Court blasts judge who compared transgender immigrant to Pee-wee Herman

A Los Angeles immigration judge who oversees many of the nation’s cases involving transgender women seeking refuge failed to understand the basic meanings of gender and sexuality, according to a federal appeals court ruling.

Not only did judge Lorraine J. Muñoz misunderstand the concept of gender identity, she also refused to allow attorneys representing transgender clients to refer to them by their preferred gender pronouns, the court said Thursday.

In one case, Muñoz said that referring to a transgender woman by her preferred gender pronouns was like actor Paul Reubens requesting to use his stage name Pee-wee Herman, according to one lawyer’s testimony in the appeals case reviewed by Fusion.

9th Circuit judge Jacqueline H. Nguyen issued the opinion after Muñoz denied Edin (Carey) Avendano-Hernandez—a transgender woman who fled persecution in Mexico—the right to stay in the U.S. under the Convention Against Torture.

“The [immigration judge] failed to recognize the difference between gender identity and sexual orientation, refusing to allow the use of female pronouns because she considered Avendano-Hernandez to be ‘still male,’ even though Avendano-Hernandez dresses as a woman, takes female hormones, and has identified as woman for over a decade,” Circuit judge Jacqueline H. Nguyen wrote in her decision.

Nguyen said Muñoz ironically exhibited “some of the same misconceptions about the transgender community that Avendano-Hernandez faced in her home country.” The federal appeals court overruled Muñoz’s decision and granted Convention Against Torture protection to Avendano-Hernandez, allowing her to stay in the U.S.

Two other cases involving transgender women denied by Muñoz were also sent back to the immigration court for review.

From fiscal years 2009 to 2014 Muñoz ruled on 643 asylum claims, denying 93.8%. Muñoz’s denial rate is one of the highest in the country, according to an analysis of 270 judged tracked by the Transactional Records Access Clearinghouse, a nonpartisan research center out of Syracuse University. Compared to Muñoz’s denial rate of 93.8%, nationally during this same period, immigration court judges denied 48.5% of asylum claims.

Of the 643 asylum claims Muñoz reviewed, she granted 40 stays, gave no conditional grants, and denied 603 requests, according to TRAC.

Judge Muñoz ironically exhibited “some of the same misconceptions about the transgender community that Avendano-Hernandez faced in her home country.”

The only immigration detention “pod” that houses gay men and transgender women in the country is in Santa Ana, California, about an hour south of downtown Los Angeles. As a result, Muñoz is one of three immigration judges in Los Angeles who oversee a region with the highest number of asylum requests from transgender women, according to court testimony.

“Immigration judge Muñoz has been infamous in the LGBTQ immigration legal community for her explicit hostility against trans women asylum seekers, most of whom had fled to the U.S. after surviving horrific violence only to experience shocking cruelty by her,” said Olga Tomchin, an immigration lawyer at the National Day Laborer Organizing Network, an immigrant rights group.

Immigration lawyers who work with LGBT immigrants expect Nguyen’s decision to have a significant impact on the lower courts.

“Transgender individuals seeking release will have to be regarded according to their gender identity and gender expression. They won’t have to experience this hostility and rejection towards their gender,” said Munmeeth K. Soni, an attorney at the Public Law Center who represented Avendano-Hernandez.

Nguyen also noted in her decision that immigration judges should not assume advances for gay men and women in their native countries result in progress for transgender individuals.

“The [Board of Immigration Appeals] primarily relied on Mexico’s passage of laws purporting to protect the gay and lesbian community. The agency’s analysis, however, is fundamentally flawed because it mistakenly assumed that these laws would also benefit Avendano-Hernandez, who faces unique challenges as a transgender woman,” wrote Nguyen.

A spokesperson for the Department of Justice’s Executive Office for Immigration Review said neither judges nor their office comment on federal decisions.

“Carey and other transgender individuals who flee their home countries to escape persecution and torture face numerous hurdles before they can seek relief here,” said Andrea Ruth Bird, an attorney with the firm Manatt, Phelps & Phillips, LLP who argued Edin (Carey) Avendano-Hernandez’s case before the 9th Circuit.

“We are relieved that Carey will not have to return to Mexico to face further torture, and we hope that this decision will eliminate some of those same legal challenges for others in Carey’s desperate situation,” Bird said.