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:
“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.”
“The impact of this decision will save Transgender lives,” said Alma Rosa Silva-Bañuelos, Trans Asylum Advocacy Director, [email protected] 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, [email protected] 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.”
“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.
Contact: Gabby Arias, [email protected]