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Edin Carey Avendano-Hernandez v. Lynch

The Ninth Circuit held in Avendano-Hernandez v. Lynch that the Board of Immigration Appeals acted within its proper discretion to hold that the petitioner's felony conviction for driving under the influence (DUI) was a particularly serious crime that disqualified her from receiving withholding of removal.

Ms. Avendano-Hernandez is a transgender woman who requested withholding of removal to Mexico because of repeated acts of rape and sexual assault she experienced there by police, the military, and her own family.  The immigration judge found her testimony credible, but denied her withholding of removal based on her conviction under California Vehicle Code section 23153(b) for driving with a blood alcohol content of 0.08% or greater and causing bodily injury to another person.  She had crashed into another car and the other driver experienced neck and back pain, as well as minor pain to the arm and knee.  She received probation and a jail term of 364 days for this conviction.  She later received a 2 year sentence to imprisonment for a violation of her probation after she was deported and returned illegally without reporting to her probation officer.

The immigration judge and Board found that the conviction was a particularly serious crime that disqualified Ms. Avendano Hernandez from receiving withholding of removal to Mexico based on her experiences of rape and sexual assault there.  The Ninth Circuit's jurisdiction to review this discretionary decision is limited to determining whether the agency considered the facts and circumstances of the crime under the correct legal standard.  The Ninth Circuit found that the immigration judge did improperly consider the probation violation in assessing the seriousness of the underlying crime, but that the Board corrected the immigration judge's error on its de novo review.  The Ninth Circuit concluded that the Board applied the proper legal standard to the facts, so it upheld the decision.

The Ninth's decision then went on to find that Ms. Avendano Hernandez is entitled to deferral of removal under the Convention Against Torture, a less durable form of protection from removal.

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