What’s in a name? A battle for a transgender immigrant’s rights

by CMCP - California Minority Counsel Program
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CMCP - California Minority Counsel Program

[author: Noah Pérez-Silverman - Caldwell Leslie’s Los Angeles office]

While the United States continues to grapple with transgender rights—including the right to restroom access—transgender individuals across the globe often face severe persecution and torture on account of their gender identity. One difficulty transgender people encounter both domestically and abroad concerns the ability to ensure that their official documents bear the chosen names that match their gender. When trans immigrants seek to have their cases heard in U.S. immigration courts, it is important—but not always easy—to ensure that orders affecting their rights include both the name they were given at birth and the name that corresponds with their gender.

The significance of this issue is exemplified by a case recently handled by Albert Giang, Noah Pérez- Silverman, and FeiFei Jiang, of CMCP member firm Caldwell Leslie & Proctor. Their client, Elena,* is a transgender woman who immigrated from Mexico after facing horrific abuse on account of her gender identity—she was brutally gang-raped, beaten, thrown over a cliff, and left for dead by local police officers in Mexico. After fleeing Mexico to the United States, she applied for deferral of removal under the Convention Against Torture (CAT). At the merits hearing, however, the immigration judge showed little regard for the plight of transgender individuals, going so far as refusing to let the Caldwell Leslie team refer to their own client using feminine pronouns. In addition, the judge refused to correct the client’s name on the official file to either Elena’s true birth name (Elena, like many immigrants detained by authorities, initially gave a made-up name) or to Elena’s preferred female name. Not surprisingly, the immigration judge denied relief, holding that although the treatment Elena endured in Mexico rose to the level of torture, she was not entitled to relief because the torture was not state-sponsored. The immigration judge incorrectly assumed that although Elena’s abuse occurred at the hands of the police, these were simply rogue police officers, and the treatment was not condoned by the entire Mexican government.

After the Board of Immigration Appeals (BIA) affirmed this erroneous decision, the Caldwell Leslie team appealed Elena’s case to the Ninth Circuit. There, after receiving a powerful opening brief explaining the various errors below, the government voluntarily agreed to a stipulated remand and acknowledged that a CAT applicant need show only that “a public official”—and not the entire foreign government— inflicted or acquiesced in torture. On remand, Caldwell Leslie persuaded the BIA to reverse its earlier decision, hold that Elena was entitled to CAT relief, and remand to the immigration court to effectuate the order.

The battle was won, but not yet the war. For immigrants who receive deferral of removal under the CAT, the court order granting them relief is the only official documentation they get indicating that they are legally authorized to remain in the country. Unless Elena’s legal team could get the immigration judge to correct the name on the file (and on the resulting order), the years of work would have yielded a pyrrhic victory. If Elena’s order permitting her to remain in the U.S. contained only a made-up name, then she would have no way to prove to any future immigration officials that she was a legal resident. Before the immigration court—and a different immigration judge—the Caldwell Leslie team argued successfully that the order should include not only Elena’s true birth name, but also her preferred female name.

Obtaining an official name change remains a challenge even for U.S.-born trans people, depending on what government authority has the ability to grant or withhold that relief. But for critical documents for trans clients—whether immigration papers or a bankruptcy discharge—it is always worthwhile to attempt to obtain an order reflecting both the client’s birth name and the client’s chosen name of preference, even if the client has not yet effectuated a legal name change.

*Not the client’s real name.

Noah Pérez-Silverman is an attorney at Caldwell Leslie’s Los Angeles office. Noah has handled complex privilege issues, supervised voluminous electronic discovery projects, and helped obtain terminating sanctions against an adversary for litigation misconduct. For more information about Noah, click here.

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