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Federal Appeals Court in Denver Rules Transgender Woman from Honduras Should Have Been Granted Asylum Based on “Extensive Evidence” of Violence Against Transgender Individuals
National Coalition Rallied to #FreeKelly During Her Three Years in Detention
DENVER (March 30, 2022) — A federal appeals court ruled yesterday that Kelly Gonzalez Aguilar, a transgender woman, should have been granted asylum based on a record of “extensive evidence of widespread violence against transgender individuals in Honduras.”
The Tenth Circuit Court of Appeals in Denver ruled that, based on the evidence of pervasive transphobic violence throughout Honduras, “any reasonable adjudicator would find a pattern or practice of persecution against transgender women in Honduras.” In doing so, the Tenth Circuit joined the Ninth Circuit in recognizing that it is the effectiveness rather than the mere existence of remedial measures that determines whether a country’s government is unable or unwilling to protect transgender persons.
"This is an important decision that recognizes what it is like for people like me in Honduras, and I am happy that other trans people will be able to benefit from my experience,” Ms. Gonzalez Aguilar said. “Waiting for three years in detention for this decision to come was very hard, but I am proud and grateful for all of the activists, campaign partners, and lawyers who helped me along the way. I hope that with this decision they change many laws that violate human rights of LGBTQI immigrants who only ask for refuge.”
The court’s ruling, which applies across the Tenth Circuit, is particularly meaningful because of the impact it could have for other transgender people who are seeking asylum from Honduras. Additionally, it is rare for courts to recognize that there is a pattern or practice of persecution against a protected group, so the decision will hold persuasive power nationwide.
“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,” said National Immigrant Justice Center Senior Attorney Tania Linares Garcia, co-counsel in the case. “One of the tragedies in Kelly’s case is that, because the immigration court failed in its own adjudication of her case years ago, she was forced to endure additional abuse in the U.S. detention system during the immigration process. I’m hopeful that the Tenth Circuit decision will make the path to asylum clearer for other transgender Hondurans who come to our country seeking safety and freedom, and that this ruling also is a reminder that the U.S. government must stop the inhumane detention of transgender asylum seekers.”
“The entire Jones Day team is extremely pleased that the Court granted Kelly the relief she deserves,” said Jones Day Partner Nicole Henning, co-counsel in the case. “It was a privilege to represent Kelly in this matter, and we admire both her resilience and perseverance.”
Ms. Gonzalez Aguilar spent more than 1,000 days in ICE custody, including months in solitary confinement before being transferred to Colorado’s Aurora Contract Detention Center, where she continued to experience deteriorating physical and mental health. In response, a broad national coalition of immigrant and transgender rights activists organized the #FreeKelly campaign to support her and demand her release so she could pursue her appeal outside of detention. In response to the campaign’s petitions which garnered more than 75,000 signatures, thousands of emails and calls to ICE, support from members of Congress, and solidarity events near the Aurora detention center, ICE finally released Kelly in July 2020.
Members of the #FreeKelly campaign responded to the Tenth Circuit ruling with the following statements:
“The impact of this decision will save Transgender lives,” said Alma Rosa Silva-Bañuelos, Trans Asylum Advocacy Director, TransLatin@ Coalition. “I recall my visits inside detention and weekly phone calls with Kelly while she survived three years in ICE detention. Her courage, strength and kindness are part of her resilience, as she waited for her case to be decided she supported other Transgender Asylum Seekers while they were in detention. Kelly became a pillar of strength and support for other Trans siblings and with this decision her determination will continue to have a ripple effect for Transgender lives.”
“Kelly’s case demonstrates the importance of collaborative work,” said Bamby Salcedo, President & CEO, TransLatin@ Coalition. “We are grateful for our Coalition partners and the work that we have done to bring Justice to Kelly, her life and her future.”
“This decision marks an important step towards justice for Kelly and for so many other trans asylum-seekers in their struggle to find safety,” said Amnesty International USA Senior Campaigner Rebecca Ma. “It is beyond belief that our leaders have put her through this process. Needlessly detained and suffering for over one thousand days, Kelly’s story and her unwavering strength and resilience inspired more than 75,000 activists across the United States and around the world to take action and by emailing, calling, and signing petitions to ICE until they finally released her. It shouldn’t be this way. It shouldn’t take an overwhelming outpouring of public support for individuals like Kelly to be free from unjust detention. The Biden administration must do better by trans asylum-seekers and all people seeking safety. Amnesty International calls for a fair and humane assessment of all asylum claims, a presumption of liberty in all custody decisions, and an end to the use of arbitrary, mass immigration detention.”
“Kelly’s release reminds us that every person should be free from this unjust system,” said American Friends Service Committee Colorado Immigrant Rights Program Director Jordan Garcia. “This release calls us to celebrate which lifts us for a further fight for all people to be free.”
Ms. Gonzalez Aguilar’s case will now return to the immigration court for adjudication of her asylum claim.
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TALKING POINTS:
The court’s decision:
This ruling from the Tenth Circuit Court of Appeals in Denver found that Kelly Gonzalez Aguilar, a transgender woman, should have been granted asylum based on a record of “extensive evidence of widespread violence against transgender individuals in Honduras.”
The court’s decision also will support the cases of other transgender Hondurans who come to the U.S. to seek protection from persecution
The court’s decision offers a strong and clear message that there is a pattern and practice of persecution against transgender women throughout Honduras, stating that “any reasonable adjudicator would find a pattern or practice of persecution against transgender women in Honduras.”
This decision will now apply for all Honduran transgender asylum seekers within the Tenth Circuit (Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah)
The ruling also reflects similar findings by the Ninth Circuit in recognizing that just the mere existence of policies and laws that offer remedial protections for transgender persons is not enough if those measures are ineffective.
As Kelly said when she learned about the ruling, "This is an important decision that recognizes what is like for people like me in Honduras.”
Connecting the ruling to Kelly’s detention:
The court’s finding that the immigration judge erred in denying asylum protection to Kelly is wonderful news now, but also is incredibly frustrating because that decision was the main reason Kelly spent three years in immigration detention
Kelly spent more than 1,000 days in ICE custody, including months in solitary confinement before being transferred to the Aurora Contract Detention Center in Colorado, which ICE had designated to detain transgender people. At Aurora, she continued to experience deteriorating physical and mental health.
We hope that this ruling will make the path to asylum clearer for other transgender Hondurans who come to our country seeking safety and freedom, and help them avoid the long-term detention that Kelly had to endure
This ruling should also be seen as an example for why the U.S. government must stop the inhumane detention of transgender asylum seekers all together. When people come to the U.S. to find safety from violence and persecution, they should not be subjected to the abuses of the ICE detention system.
The #FreeKelly campaign:
A broad national coalition of immigrant and transgender rights activists organized the #FreeKelly campaign to support her and demand her release so she could pursue her court appeal outside of detention. The campaign generated:
More than 75,000 signatures on a petition to ICE demanding Kelly’s release
over 5,500 emails to ICE
Dozens of mailed letters, phone calls and faxes
Support from members of Congress
Solidarity events near the Aurora detention center
In response to these demands, ICE finally released Kelly in July 2020
While the persistent solidarity of the #FreeKelly campaign was inspiring and ultimately succeeded in its goal, in a humane immigration system it would not have been necessary.
The coalition that Kelly inspired has gone on to advocate for the release of other transgender immigrants who ICE has continued to detain – and to demand that the Biden administration end the detention of transgender people entirely.