Judge Rules That Transgender Detainee Is Free to Live in U.S.

An undocumented Mexican transgender woman -- who faced deportation for prostitution convictions while HIV positive -- won release this week from federal custody and is now free to live in the United States.

A federal immigration judge ruled Oct. 21 at a hearing in Los Angeles that the U.S. government could not expel 46-year-old Wilfrido Lopez-Roque, who was seeking asylum on the grounds that her transgender status put her in danger in her native country.

Previously, the government argued that Lopez-Roque, who is known as Perla, should be deported for a serious crime for three prostitution misdemeanor convictions years ago while infected with the potentially deadly virus that causes AIDS.

But that argument was dropped recently -- with the government citing a domestic violence conviction as the reason for deportation, while arguing Mexico didn’t persecute those who are lesbian, gay, bisexual, transgender.

Lopez-Roque's odyssey, which was chronicled by Voice of OC, should serve as a beacon of hope to other transgender people, said her attorney Peter Perkowski.

Crying after the ruling, Lopez-Roque could only repeat “thank you,” again and again to Perkowski, who works for the Winston & Strawn law firm in Los Angeles.

On Monday evening, U.S. Immigration and Customs Enforcement agents released Lopez-Roque from a special wing of the Santa Ana Jail reserved for gay/transgender individuals in federal custody.

In his ruling, immigration Judge Kevin W. Riley said Lopez-Roque could live and work legally in the United States, but he did not grant her unconditional asylum. So if she were to leave the country, she could be blocked from re-entering.

Lopez-Roque’s unexpected release came after a tortuous legal path through a labyrinth of immigration proceedings, which are private unless an individual discloses details.

Her case provides a rare window into the immigration courts for individuals seeking safe heaven under the Convention Against Torture Treaty.

Lopez-Roque said she was forced to have sex with the mayor of her village, Villa Hermosa, in the state of Michoacan; now a narcotics war zone. Later, she said she was gang-raped by police in Guadalajara, subsequently fleeing to the United States about 25 years ago.

Earlier this year, Riley ruled Lopez-Roque should be deported because the government demonstrated that her involvement in prostitution while being HIV positive constituted a "serious crime."

But her attorneys, including Keren Zwick of the National Immigrant Justice Center in Chicago, filed documents saying that there was no sex in any of the cases, that no disease could be spread, and that Riley didn’t consider this in his ruling.

The nation’s federal Board of Immigration Appeals in Virginia overturned portions of Riley’s original opinion, sending the case back to Los Angeles for a new hearing on Oct. 11.

When he arrived at the hearing, Perkowski said he was surprised to learn that the government had thrown out all their prior arguments about a serious prostitution crime by an HIV-positive individual.

[The new government pleadings were sent to Perkowski by US mail on Oct. 9 during the federal government shutdown, a postmark shows, but he didn’t receive the hand-written envelope until after the Oct. 11 hearing.]

The new records show that ICE counsel Sandra H. Shin, abandoned the prostitution stance and claimed a domestic violence conviction by Lopez-Roque constituted a serious crime, which allows for deportation.

But Perkowski argued the offense -- which involved a dispute with an alleged abusive pimp -- wasn’t a serious crime nor filed in a timely legal manner.

To counter the argument Lopez-Roque wasn’t eligible under the Convention Against Torture, the government entered 97 pages of news articles and journal reports about Mexican culture becoming more accepting of LGBT people.

Articles noted a transgender person ran for office, gay marriages were being considered, and the government issued a report supportive of LGBT rights.

But most of these involved Mexico City, which is much more cosmopolitan and accepting than rural regions, like Michoacan, where federal government control is even questioned.

Rebutting the government, Perkowski wrote:

The evidence does not demonstrate the legislative reforms, public protests, or pride parades has trickled down into social consciousness to change conduct and attitudes toward [lesbian, gay, bisexual, transgender] people in Mexico, particularly transgender women, [Lopez-Roque’s] social group.

“In light of the ample evidence demonstrating widespread brutality against [gay/transgender] people,” Perkowski argued, deportation should be denied under the Convention Against Torture.

After a debate of those arguments Riley took the case under submission, ultimately issuing the order -- called “withholding of removal” -- yesterday, Oct. 21.

This status is considered similar to asylum, but it differs in that there is a deportation order held in suspension; if someone leaves the country, this allows rejecting their return.

ICE officials don’t comment on such cases, given their private nature.

Rex Dalton is a San Diego-based journalist who has worked for the San Diego Union-Tribune and the journal Nature. You can reach him directly at rexdalton@aol.com.

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