Transgender Woman From Guatemala Secures Asylum

"A transgender Guatemalan woman has been released from an all-male immigration detention facility after a judge in Arizona granted her asylum, attorneys said on Friday, in a case that gained nationwide attention and became a rallying point for immigrant groups and the lesbian, gay, bisexual and transgender community.

Nicoll Hernandez-Polanco was released last week from the U.S. Immigration Customs and Enforcement facility in Florence, Arizona, where she claims to have faced abuse from guards and fellow detainees during the six months she was held at the center.

The 24-year-old’s release came the same day that Judge Bruce A. Taylor granted her request for political asylum, on the grounds that she faced persecution in her native country because of her gender identity, according to an order made available by her attorneys.

“We’re really happy Nicoll was able to be released from detention and finally will be able to live in a place where she doesn't have to fear for her safety the same way she would in Guatemala,” said Vidula Patki of Perkins Coie LLP, an attorney for Hernandez-Polanco.

Hernandez-Polanco, born a male, was subjected to more than a decade of violence in Guatemala after she began dressing and presenting herself as a woman.

She was detained by U.S. immigration authorities in October, after she told agents at the border that she was seeking asylum. Because of a previous deportation, she was held at the detention facility while awaiting a hearing.

Her detention at the all-male facility sparked national interest and media attention after allegations that she was sexually abused by a another detainee and subjected to sexual harassment from ICE staff, whom she said referred to her as “the woman with balls” or “it.”

As reports of her story surfaced, supporters called for her immediate release, rallying on social media under the hashtag #FreeNicoll and holding demonstrations in places such as Arizona and New York.

“To put someone who saw herself as woman in an all-male facility, that’s pretty insensitive,” Patki said on Friday. “We thought she really suffered while she was in there.”

Advocates said that her story was illustrative of a larger problem. Some demanded that ICE stop detaining transgender women altogether, contending that it has shown an inability to follow its own rules or house the women with “dignity and respect.”

An ICE spokeswoman in Phoenix told Law360 on Friday that the agency thoroughly investigated each complaint filed by Hernandez-Polanco. She said that the agency made various accommodations, including allowing her to shower alone and ordering only female officers to conduct pat downs.

The agency also offered to move Hernandez-Polanco to a facility in Santa Ana, California, but she declined, ICE said.

Last week, Hernandez-Polanco made her case for political asylum in front of an immigration judge, seeking protection as a transgender woman.

Although “transgender women” has not been explicitly used by the Ninth Circuit to describe a social group subject to protection under asylum law, case law has created protection for a group of “gay men with female sexual identities,” attorneys said.

Arguing that the language was “arcane” and “imprecise,” Hernandez-Polano's lawyers contended that a decision granting her asylum wouldn’t create a new social group, but merely modernize the language.

Judge Taylor sided with Hernandez-Polano, finding that she is a member of that particular social group and granting her request for asylum. The government has said it will not appeal the ruling, Patki said.

“This was a case that involved concerned people from different groups providing strong support to correct a terrible injustice,” Phoenix partner Dan Barr, who led the Perkins Coie legal team, said in a statement.

Hernandez-Polano is represented by attorneys from Perkins Coie and the Transgender Law Center.

Counsel information for the government wasn’t immediately available on Friday.

The case is In the Matter of Hernandez-Polano, case number A089-841-646, in the Florence Immigration Court." - Law360, May 1, 2015.