Category: Mexico

Citation: 2021 RLLR 53
Tribunal: Refugee Protection Division
Date of Decision: October 27, 2021
Panel: S. Seevaratnam
Counsel for the Claimant(s): Amedeo Clivio
Country: Mexico
RPD Number: TC1-04681
Associated RPD Number(s): TC1-04721
ATIP Number: A-2022-01594
ATIP Pages: N/A

REASONS FOR DECISION

[1]       The claimants, XXXX XXXX XXXX XXXX(principal claimant) and his partner  XXXXX XXXX XXXXX XXXXX (associate claimant), claim to be citizens of Mexico and they are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).¹

[2]       The principal claimant alleges he fears returning to Mexico as a member of a particular social group, a bisexual. The associate claimant alleges he fears returning to Mexico as a member of a particular social group, a gay man. They fear persecution from their homophobic community. The claimants also fear returning to Mexico due to the Cartel Jalisco Nueva Generación (CJNG) who they believe work in collaboration with the corrupt police and the Mexican government. The claimants are two young men in a same-sex relationship since 2015.²

[3]       The panel has carefully considered the Chairperson’s Guideline 9 on Proceedings Before the Immigration and Refugee Board Involving Sexual Orientation and Gender Identity and Expression, prior to assessing the merits of this claim.³

ALLEGATIONS

[4]       The details of the allegations are outlined in the principal claimant’s (PC) Basis of Claim (BOC) Form⁴ and the associate claimant’s (AC) Basis of Claim (BOC) Form.⁵ A synopsis of the allegations is as follows.

[5]       XXXX (PC) testified that his father, in 2007 or 2008, started working as a – XXXX XXXX XXXX in Mexico City.⁶ He explained that his father started storing electronics, weapons, and other valuables in their garage.⁷ The PC stated that his father was a corrupt XXXX XXXX who maintained links to the CJNG cartel.⁸ He stated that in 2013, members of the cartel, disgruntled with his father, came to their home in search of him. When they were unable to locate him, they kidnapped his older brother XXXX.⁹ Later, his father secured XXXX release from the cartel, but he arrived home severely bruised.¹⁰ XXXX explained that XXXX was clearly beaten and tortured. The claimants fear similar reprisals.

[6]       The PC stated that his father left the XXXX XXXX in 2015, for reasons unknown.¹¹ However, his father continued to work with the cartel XXXX XXXX XXXX XXXX.¹²

 [7]      XXXX testified that his father dislocated his elbow when he caught him smiling at a young male in public.¹³ The PC explained that on another occasion, when he was about 15, he and his friend XXXX went to workout at a gym behind their school. As they exited the gym, a police cruiser drove by and noticed them exchanging a kiss. XXXX stated that he and XXXX were immediately taken in the police cruiser, reprimanded for their conduct, and held overnight in detention at the police station. They were warned not to engage in same-sex amorous behaviour.¹⁴

[8]       XXXX (AC) explained that his family members are traditional and religious. He explained that the community is homophobic. Both claimants testified that they tried to keep their sexual orientation a secret in Mexico in order to avoid becoming victims of violence perpetrated by members of society.¹⁵

[9]       The AC stated that he was attracted to a male classmate who rejected his advances. This led to him being verbally abused, bullied, and ostracized at school among his peers.¹⁶ On another occasion, at age 14, the AC was walking hand in hand with his boyfriend. They were threatened by passengers in a vehicle driving by and became the potential victims of a physical assault.¹⁷

[10]     Both claimants testified they have suffered numerous acts of discrimination in several aspects of their lives which they believe amount to persecution. They explained that the police in Mexico reflect the homophobic society and protection is unavailable for bisexual or gay men within Mexico. They fear physical and verbal abuse by society. They believe they are at a grave risk of suffering violence if they were to disclose their sexual orientation.

[11]     On December 12, 2018, the claimants were pursued by members of the CJNG cartel.¹⁸ The criminal cartel shot twice in their direction, but the claimants were able to escape.¹⁹ Fearing for their life, they fled their country of nationality and sought refuge in Canada. ²⁰

DETERMINATION

[12]     The panel finds the claimants to be Convention refugees. The panel’s reasons are as follows.

IDENTITY

[13]     In Exhibit 5, the claimants have provided copies of their passports issued by the government of Mexico.²¹ In addition, the associate claimant has provided a copy of his Mexican electoral voter’ s card.

[14]     The panel finds the claimants to be nationals of Mexico. The panel is satisfied with their identities as members of the LGBTQ community.

CREDIBILITY

[15]     The panel is guided by the leading jurisprudence on the issue of credibility. Maldonado²² stands for the principle that when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness.

[16]     The panel has carefully assessed the totality of the claimants’ sworn viva voce evidence, their personal and country condition documents corroborating their testimony, specifically the information they have provided in their Basis of Claim (BOC) Forms and narratives,²³ the letter detailing the circumstances faced by XXXX (PC) by his stepmother, XXXX²⁴ photos,²⁵ and country conditions regarding LGBTQ people in Mexico and the CJNG cartel.²⁶

[17]     The panel finds the claimants to be credible and trustworthy witnesses. Their oral testimony was candid and straightforward. Accordingly, the claimants have established their subjective fear of persecution based on their sexual orientation and membership in a particular group, family of a corrupt XXXX.

WELL-FOUNDED FEAR OF PERSECUTION

Sexual Orientation

[18]     The panel has sought guidance from reliable and reputable documentary evidence regarding the current plight of bisexual and gay men in Mexico.

[19]     The US Department of State (DOS) Mexico Country Report on Human Rights 2020 states as follows:

According to the OHCHR, in the first six months of the year, there were 25 hate- crime homicides committed against lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons. Federal law prohibits discrimination against LGBTI individuals. A Mexico City municipal law provides increased penalties for hate crimes based on sexual orientation and gender identity. Civil society groups claimed police routinely subjected LGBTI persons to mistreatment while in custody. Discrimination based on sexual orientation and gender identity was prevalent, despite a gradual increase in public acceptance of LGBTI individuals, according to public opinion surveys. There were reports the government did not always investigate and punish those complicit in abuses, especially outside Mexico City. On July 24, Mexico City passed a local law to ban LGBTI conversion therapy. A CNDH poll conducted in 2019 found six of every 10 members of the LGBTI community reported experiencing discrimination in the past 12 months, and more than half suffered hate speech and physical aggression. In July the federal government’s National Commission to Prevent Discrimination wrote a letter condemning the Roman Catholic diocese of Mexicali for inciting homophobia by calling for anti-LGTBI protests.²⁷

[20]     LGBT+ people have strong legal protections, but they are not uniformly enforced.²⁸

[21]     A Response to Information Request (RIR) on the situation of sexual and gender minorities finds that according to sources, machismo is still embedded in Mexican culture, which increases homophobia and discrimination against sexual minorities.²⁹

[22]     Sources indicate that most sexual minorities have experienced physical acts of violence or harassment based on their sexual orientation or gender identity.³⁰

[23]     A Response to Information Request (RIR) on the situation of sexual minorities including in Mexico City states as follows: The website of the Attorney General’s Office (Procuraduria General de la Republica, PGR) cites the President of the National Council for the Prevention of Discrimination (Consejo Nacional para Prevenir y Eliminar la Discriminación, CONAPRED) as stating that in Mexico, [translation] “discrimination on the basis of sexual orientation and gender identity continues to be a structural phenomenon with extensive social roots”. In correspondence with the Research Directorate, a representative from the Executive Commission of Attention to Victims (Comisión Ejecutiva de Atención a Victimas – CEAV), a federal agency that supports those who have been victims of a federal crime or whose human rights have been violated (Mexico n.d.a), stated that crimes against sexual minorities are [translation] “constant … and in many cases are motivated by prejudices”. Sources indicate that despite an increase in public tolerance of sexual minorities, discrimination against sexual minorities was prevalent.³¹

[24]     Agencia EFE cites LGBT organizations as stating that [translation] “‘persistent homophobia has been promoted in large part by members of the Catholic Church”.³²

[25]     In an article dated May 15, 2020, in Reuters, titled “Mexico sees deadliest year for LGBT people in five years,”³³ states that in 2019, 117 members of the LGBT community were killed which is a one third increase from 2018 and the highest since 2015.³⁴ The article further states that the victims were found handcuffed, stabbed repeatedly, and in public places.³⁵

[26]     The Inter-American Commission on Human Rights (IACHR), an autonomous organ of the Organization of American States that promotes and protects human rights in the American hemisphere describes in a November 2015 report on violence against LGBT persons in the Americas, among other states, Mexico.³⁶ For instance, same-sex couples showing public displays of affection are also a frequent target of police abuse and arbitrary detention by state agents – often with excessive use of force or verbal abuse- because of what is considered ‘immoral behavior’ in public spaces.³⁷

[27]     Counsel’s documentary evidence package highlights numerous incidents of murder committed upon innocent members of the LGBT community solely motivated by society’s homophobic attitudes.

[28]     Several articles in counsel’s documentary package find as follows:

On April 8, 2019, three young gay men were violently beaten for defending themselves against homophobic insults uttered by their aggressors in Guadalajara.³⁸ One of the young men suffered traumatic brain injury.³⁹

On February 5, 2019, a primary school teacher, who worked in Puebla, was found stabbed to death in his home for being gay.⁴⁰ His close friends described him as a committed and sensitive person.⁴¹ In addition to teaching, he was a dance coach, a costumer for a youth group who was dedicated to humanitarian efforts and charity causes for children in Puebla.⁴²

On July 26, 2018, a gay pageant winner was tortured and assassinated in Veracruz.⁴³ The media report indicates that the gay queen was found half nude with signs of torture wearing a barbed-wire necklace.⁴⁴

On June 19, 2018, three LGBT activists were murdered after being kidnapped from a bar in a popular tourist spot Taxco which is between Mexico City and Chilpancingo.⁴⁵ Images from the local press suggest that the men were shot in the back of their heads and tortured before they were killed.⁴⁶

[29]     Sources indicate that most sexual minorities have experienced physical acts of violence or harassment based on their sexual orientation or gender identity.⁴⁷

[30]     On the issue of education, sources indicate that “sexual minority students reported discrimination and harassment based on their gender identity or sexual orientation at school and that the use of homophobic slurs in school is common.”⁴⁸

 [31]    This is similar to the experiences of the AC, XXXX who was verbally abused, bullied, and physically assaulted for being gay. In addition, XXXX experience of being detained by the police overnight for a kissing his friend XXXX is corroborated in the media reports.⁴⁹

[32]     The National Documentation Package (NDP) for Mexico states that,

In 2013, the state of Nuevo Le6n passed the Law to Prevent, Address and Eradicate Discrimination and Harassment and Violence in Schools. However, the representative from Fundaci6n Trans Amor noted that educational institutions have refused to enforce it. In 2019, Desastre, a Mexican news website on LGBTI issues, reported a case of two lesbian students facing harassment and physical aggression at a University in Nuevo León, wherein the school responded by suspending the two victims. ⁵⁰ [footnotes omitted]

[33]     The NDP further sates,

According to the national study on LGBTI discrimination in the workplace by CEAV [Comisi6n Ejecutiva de Atenci6n a Victimas], and Fundaci6n Arcoiris [Fundaci6n Arcoiris por el Respeto a la Diversidad Sexual], which was completed by 3,451 respondents across the country, 30 percent of respondents reported that being LGBTI was an obstacle to employment occasionally, 21 percent said frequently, and 10 percent said always, while 30 percent estimated that it was never an obstacle. The report states that some employers ask job candidates questions about sexual orientation, pregnancy, and HIV status.⁵¹ [footnotes omitted]

…

Other sources indicate that sexual minorities experience discrimination in the workplace …… “many” LGBTI people hide their sexual orientation or gender identity at work out of fear that it will have a negative impact on their career.⁵² [footnotes omitted]

…

In the 2018 national study on discrimination of LGBTI people in the workplace by CEAV and Fundación Arcoiris, 43 percent of respondents reported being harassed, bullied or discriminated against in the workplace….⁵³ [footnotes omitted]

…

For respondents who disclosed their gender identity to their boss, 66 percent reported “total support” and 25 percent reported “rejection.”⁵⁴ [footnotes omitted]

[34]     Sources indicate “that sexual minorities reported experiences of discrimination related to their gender identity or sexual orientation when accessing medical services.”⁵⁵

[35]     Accordingly, the panel finds that the PC is at risk of persecution due to his membership in a particular social group, a bisexual. The AC is at risk of persecution due to his membership in a particular social group, a gay man.

Cartel Jalisco Nueva Generación (CJNG)

[36]     The US Department of State (DOS) Mexico Country Report on Human Rights 2020 states as follows:

Impunity and extremely low rates of prosecution remained a problem for all crimes, including human rights abuses. The government’s federal statistics agency estimated 94 percent of crimes were either unreported or not investigated. There were reports of some government agents who were complicit with international organized criminal gangs, and there were low prosecution and conviction rates in these abuses.⁵⁶

Organized criminal elements, including local and transnational gangs, and narcotics traffickers, were significant perpetrators of violent crimes and committed acts of homicide, torture, kidnapping, extortion, human trafficking, bribery, intimidation, and other threats, resulting in high levels of violence, particularly targeting vulnerable groups. The government investigated and prosecuted some of these crimes, but the vast majority remained in impunity. ⁵⁷

[37]     The current NDP highlights the use of family members by cartels to settle scores or silence individuals. This is relevant to the claimants’ fear because of XXXX father who commenced his links with the CJNG during his career as a XXXX Item 7.13 indicates as follows:

Meanwhile, the fact that Coronel was now viewed as a traitor by his former associates in the Beltnin Leyva family, led to the murder of his 16-year-old son, Alejandro, in April 2010.⁵⁸

The CJNG is also believed to be responsible for serious atrocities, including the rape and murder of a rival’s alleged 10-year-old daughter in 2013, and the filmed murder of a man and his young son, killed by detonating explosives strapped to their bodies.⁵⁹

Building further enmity between the CJNG and Sinaloa, Ivan and Jesus Alfredo Guzman, the youngest sons of “El Chapo” Guzman were kidnapped when they ventured into CJNG’s Jalisco turf in August 2016.⁶⁰

[38]     While NDP item 7.12 states:

In August 2016, two of the sons of Sinaloa Cartel leader, Joaquin Guzman Loera, alias “El Chapo,” were briefly kidnapped by the CJNG.⁶¹

[39]     The evidence establishes that cartels routinely use family members as a weapon and tool against those they wish to harm and intimidate, as a way to punish what cartels view as noncompliance or defiance.⁶²

[40]     Accordingly, the panel finds that the claimants also face a serious risk of persecution due to their membership in a particular social group, family of corrupt XXXX XXXX. Thus, the claimants have established the objective basis for their well-founded fear of persecution.

STATE PROTECTION

[41]     There is a presumption that except in situations where the state is in complete breakdown, the state is capable of protecting its citizens. To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state’s inability to protect its citizens.⁶³

[42]     A Response to Information Request indicates that in in 2015, Mexico’s Supreme Court (Suprema Corte de Justicia de la Naci6n, SCJN) “issued a ruling that bans on same-sex marriage were unconstitutional.”⁶⁴

[43]     According to sources, machismo is still embedded in Mexican culture, which increases homophobia and discrimination against sexual minorities …. Sources state that in smaller towns and rural areas, there is less acceptance than in cities.⁶⁵

[44]     With regards to societal attitudes in Mexico,

Diario de Yucatan, a newspaper based in Yucatan, reported in May 2019 that a couple was denied service at a restaurant in Monterrey for being gay; according to the source, the couple entered the restaurant holding hands and were told to leave because it is a “family environment.”⁶⁶

…

Sources indicate that most sexual minorities have experienced physical acts of violence or harassment based on their sexual orientation or gender identity.⁶⁷

[45]     The 2021 Freedom in the World report for Mexico states that,

Mexico’s justice system is plagued by delays, unpredictability, and corruption, which often lead to impunity for perpetrators of crimes.⁶⁸

Widespread bribery, limited capacity, and weak coordination undermine the lower courts’ and law enforcement’s integrity. According to a December 2020 government report, the vast majority of crimes committed in 2019 went unreported, largely because underpaid police were viewed as either inept or in league with criminals. When investigations were conducted, only a tiny handful of crimes ended in convictions.⁶⁹

Mexicans are subject to the threat of violence at the hands of multiple actors, including individual criminals, criminal gangs that operate with impunity, and police officers who are often susceptible to bribery. A missing-persons registry­ which continues to grow despite increased government efforts in recent years­ reflects an epidemic of enforced disappearances. Mexicans in police or military custody are at risk of torture by the authorities and must also navigate a prison system that respects neither due process nor physical safety.⁷⁰

[46]     In the NDP for Mexico,

Sources state that sexual minorities have reported cases of violence or aggression by the police and of being detained for their LGBT status…. According to a report on discrimination of LGBTI people regarding access to justice and security by the CEAV and Fundación Arcoiris, 31 percent of transgender women respondents and 15 percent of homosexuals said they had been detained because of their LGBTI status.⁷¹ [footnotes omitted]

…

According to sources, the government does not adequately investigate crimes against sexual minorities.⁷²

The report on discrimination against LGBTI people regarding access to justice and security notes that “the high percentage of people who don’t report the aggressions or crimes is alarming,” and indicates that the two main reasons for not reporting are mistrust and alleged inaction of the authorities.⁷³

[47]     The claimants emphasized that despite the ruling by Mexico’s Supreme Court, in 2015, progress has been slow. They testified that the reality the LGBT people face daily are primarily a homophobic society accompanied by a homophobic and corrupt police force.

[48]     The NDP⁷⁴ and the documents submitted by the claimant⁷⁵ make clear that there is widespread discrimination against the LGBTI community, and the state (police) is complicit in the hate crimes perpetrated against members of the LGBTQ community. The documentary evidence highlights the lack of the availability of effective protection for members of the LGBT population. It is evident that state protection is not forthcoming for the claimants due to their sexual orientation.

[49]     In these circumstances, it is clear and convincing evidence that the state is unable or unwilling to protect the claimant. Accordingly, the panel finds that the claimants have met their burden of proof, on a balance of probabilities, and that the presumption of state protection has been rebutted.

[50]     Given the corruption among police officers, and the government of Mexico, the PC testified that protection would not be forthcoming. XXXX testified that his father was co- operating with the CJNG corrupt practices. Accordingly, these criminal gangs are able to exert power and control among the complicit security forces. Thus, state protection is an illusion.

[51]     Objective documentary evidence states that, “[s]ources report that the various police forces in Mexico at the municipal and state level lack human and material resources in order to properly investigate crimes committed in their jurisdiction.”⁷⁶

According to National Survey on Victimization and Perception of Public Security (Encuesta Nacional de Victimizaci6n y Percepci6n sobre Seguridad Publica) the ENVIPE 2019, 93.2 percent of all crimes committed were either not reported or not investigated. The same source lists the following reasons given by respondents for not reporting a crime:

• 63.2 percent blamed the police, giving the following reasons: reporting a crime was a waste of time, lack of trust in the authorities, difficulties and length of the process, the authorities’ hostile attitude, or the fear of being victims of extorsion.
• 36.2 percent of victims gave other reasons to not report a crime, such as fearing the aggressor, the crime being not important, or lacking proof.

Regarding trust in law enforcement institutions, in 2019, 55.2 percent of the respondents thought that the federal police was corrupt, while 60.6 percent had the same perception of the Attorney General’s Office, 64.1 percent of the state police, 65.5 percent of the state Attorney General, 67.9 percent of the municipal police and 68.4 percent of the judges.⁷⁷ [footnotes omitted]

…

The CJNG has proven itself ready to challenge the government directly. CJNG forces have ambushed police killing more than 15, targeted federal police in ambushes in which five died, and even downed a Mexican military helicopter in a direct confrontation.⁷⁸

[52]     The US Department of State (DOS) Mexico Country Report on Human Rights 2020 states as follows:

Significant human rights issues included: reports of the involvement by police, military, and other government officials and illegal armed groups in unlawful or arbitrary killings and forced disappearance; torture by security forces; harsh and life-threatening prison conditions in some prisons; arbitrary arrest and lengthy pretrial detention; violence against journalists and human rights defenders; serious acts of corruption; impunity for violence against women; violence targeting persons with disabilities and lesbian, gay, bisexual, transgender, and intersex persons; and the existence of the worst forms of child labor.⁷⁹

[53]     The Jalisco Cartel New Generation (Cartel Jalisco Nueva Generación – CJNG) is a criminal group that has evolved as a result of killings, captures and rifts in older cartels. It is known for its aggressive use of violence and its public relations campaigns. Despite the capture of certain top leaders, it is now Mexico’s foremost criminal threat and appears set to continue expanding.⁸⁰

[54]     In April 2015, the CJNG killed 15 Mexican police officers during an ambush in Jalisco state, one of the single deadliest attacks on security forces in recent Mexican history. The group was also blamed for an attack in March 2015 that killed five federal police. Additionally, Mexican officials have previously indicated that the group possesses highly sophisticated armament, including machine guns and grenade launchers were used to conduct the March 2015 attack. In May 2015, the group continued its deadly streak, shooting down a military helicopter on May 1 and launching a wave of violence across Jalisco.⁸¹

[55]     According to an Amnesty International report 2020/2021, titled Mexico State of the World’s Human Rights finds that, “[e]nforced disappearances by state agents and disappearances committed by non-state actors continued to be a concern; those responsible enjoyed almost total impunity.”⁸²

[56]     Mexico. World Report 2021: Events of 2020 indicates:

The criminal justice system routinely fails to provide justice to victims of violent crimes and human rights violations. Only 1.3 percent of crimes committed in Mexico are solved, the nongovernmental group Impunity Zero reports. Causes of failure include corruption, inadequate training and resources, and complicity of prosecutors and public defenders with criminals and other abusive officials. A 2018 reform intended to give prosecutors increased independence has not been properly implemented, local human rights and rule-of-law groups report.⁸³

…

However, prosecutors and police neglect to take even basic investigative steps to identify those responsible for enforced disappearances, often telling families of the missing to investigate on their own. The CNB reported that over 7,000 people disappeared in 2019. That year, the Attorney General’s Office opened only 351 investigations into disappearances and prosecuted only 2.⁸⁴

[57]     Bertelsmann Stiftung’s Transformation Index (BTI) 2020, indicates that,

At the state level, the judiciary is totally bound to the local executives. All the governors that have been accused of fraud and corruption have been able to escape trial. Furthermore, there have been very few cases where corruption by a party, union, Congress leader or functionary is brought to justice, despite rampant corruption. ⁸⁵

…

The situation has worsened dramatically in those places where the drugs war is intense. The situation has been aggravated by the number of people in those regions that have been disappeared. We do not know if they were abducted by criminal gangs, the army or the police. The most recent estimate is that 37,000 people have been disappeared.

As a consequence of impunity and the fact that official forces are in many cases involved in criminal acts, people who are victims of crime rarely report the crime to the police. People are afraid that as the police may be involved, they will be victimized again or because they feel it is useless. 97% of crimes go unsolved and thus unpunished.⁸⁶

[58]     The report further indicates that, “[h]uman rights advocates have consistently expressed concern about a lack of accountability for rights abuses committed by members of the military, including torture, forced disappearances, and extrajudicial executions.”⁸⁷

[59]     Counsel’s country condition package highlights a media report which indicates an entire police department in Mexico’s state of Chihuahua was arrested due to corruption.⁸⁸

[60]     The panel finds that the claimants fear persecution or serious harm at the hands of organized criminal group, CJNG. Therefore, based on the objective and current documentary evidence,⁸⁹ the claimants cannot avail themselves of the protection of the authorities. The security forces are complicit.

[61]     The National Documentation Package (NDP) for Mexico⁹⁰ and the documents submitted by the claimant⁹¹ make clear that the state is ineffective and in these particular circumstances, there is clear and convincing evidence that the state is unable or unwilling to protect the claimants. Accordingly, the panel finds that the claimants have met the burden of proof, on a balance of probabilities, and the presumption of state protection has been rebutted.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[62]     The Federal Court of Appeal established a two-part test for assessing an IFA in Rasaratnam and Thirunavukkarasu: As per Rasaratnam,

(1)       “the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists”⁹² and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA.

(2)       Moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances including those particular to the claim, for him to seek refuge there.⁹³

[63]     The claimants bear the burden of proof to demonstrate that they would be persecuted on a Convention ground, or subject personally, on a balance of probabilities, to a risk to life or a risk of cruel and unusual treatment or punishment⁹⁴ in all of Mexico.

Sexual Orientation

[64]     The claimants faced verbal abuse throughout their youth at school and within their community due to entrenched homophobic attitudes. The claimants testified that given the homophobic attitude of Mexican society, reinforced by the Catholic church, the police, and the state authorities, they would not be able to live safely and openly as a bisexual and gay couple in Mexico. The claimants testified that they intend to spend their future together and they have taken the preliminary steps towards arranging their marriage in Canada.

[65]     The AC testified that. as a XXXX XXXX he has travelled to a variety of regions within Mexico. He stated that the treatment of gay men and the homophobic attitudes prevailed.

[66]     The objective and reliable documentary evidence from a variety of reputable and current sources indicates that a viable internal flight alternative is unavailable for the claimants, a same­ sex couple.⁹⁵

[67]     Having carefully considered the totality of the evidence, the panel finds that there is a serious risk of persecution throughout Mexico.

Jalisco New Generation Cartel (CJNG)

[68]     Documentary evidence indicates that the cartel has expanded rapidly, and the CJNG now has some sort of presence in every part of Mexico, except Sinaloa and the Golden Triangle of heroin production. ⁹⁶

[69]     On the issue of the geographic spread of the CJNG in Mexico, the documentary evidence indicates that there is no greater evidence to support the notion of the CJNG as highly resilient and powerful organization than to chronicle its rapid geographic spread throughout Mexico. In a relatively short rise from 2010 to early 2018, the CJNG developed a documented presence in 24 of 32 Mexican states; when including alliances and small cells the count includes all 32 Mexican states.⁹⁷

[70]     A Response to Information Request states that according to the Assistant Professor, cartels use family networks and private investigators to track people, as well as property records in the US and Mexico and placing GPS trackers on cars.⁹⁸

…

The Assistant Professor stated that in order to extend their influence beyond their areas of operation, cartels rely on the “representation” they have in other areas.⁹⁹ Reports that the Jalisco New Generation Cartel (Cartel Jalisco Nueva Generaci6n, CJNG), a splinter group of the Sinaloa Cartel, has developed “strategic alliances” with groups in other regions, including Los Zetas and Gulf Cartel splinter groups along the Gulf Coast.¹⁰⁰

[71]     The claimants stated that the police are complicit and would enable the cartel to find them.

[72]     The RIR further finds that the Assistant Professor stated that a large debt or a personal vendetta could motivate a gang to track someone outside their area, and that gangs can use “corrupt law enforcement agents” to obtain information about people they pursue.¹⁰¹

[73]     Documentary evidence indicates on the CJNG cartel indicates as follows:

Area of influence: present in 27 Mexican states and “asserts control over the ports of Veracruz, Mazanillo, and Lazaro Cardenas.” It has a presence in every part of the country, and is the “dominant criminal actor in Jalisco, Nayarit and Colima, at the port of Lazaro Cardenas in Michoacan, in the eastern state of Veracruz and in the oil-rich central region of Guanajuato, Puebla, Querétaro and Hidalgo”

Alliances: Tijuana Cartel Nueva Generation, a faction of the Juarez Cartel.¹⁰²

[74]     Accordingly, the objective documentary evidence before the panel indicates that there is a serious possibility of persecution throughout Mexico from the CJNG. As a result, there is no viable IFA where the claimants could reside without a risk to their lives or their safety.

[75]     Having carefully considered the totality of the evidence, the panel finds that there is a serious risk of persecution throughout Mexico. Thus, given the particular circumstances of the claimants, a same-sex couple and having family ties to XXXX father, a former XXXX XXXX having worked in alliance with the CJNG, the claimants are known to the organized criminal cartel and their corrupt counterparts within the police force, thus, an internal flight alternative is unavailable.

CONCLUSION

[76]     The claimants, XXXX XXXX XXXX XXXX, and his partner XXXX XXXX XXXX XXXX have established that there is a reasonable chance of persecution, based on their sexual orientation if they were to return to their country of nationality, Mexico, today. They have also established that there is a reasonable chance of persecution due to their membership in a particular social group, family of corrupt XXXX, if they were to return to Mexico today.

[77]     Therefore, the panel finds the claimants to be Convention refugees.

(signed) S. Seevaratnam

October 27, 2021

1 The Immigration and Refugee Protection Act, S.C. 2001, c.27, sections 96 and 97(1).

2 Exhibit 2, Basis of Claim (BOC) Form -TCl-04681, Narrative, at para. 17.

3 Chairperson ‘s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.

4 Exhibit2, BOC Form -TCl-04681.

5 Exhibit 3, Basis of Claim (BOC) Form – TCl-04721.

6 Exhibit 2, BOC Form -TCl-04681, Narrative, at para. 8.

7 Ibid., at para.9.

8 Ibid., at para. 2.

9 Ibid., at para. l 1.

10 Ibid., at para.12.

11 Ibid., at para.16.

12 Ibid.

13 Ibid., at para.13.

14 Ibid., at para.3.

15 Ibid.

16 Exhibit 3, BOC Form – TCl-04721, Narrative, at para.5.

17 Ibid., at para.6.

18 Exhibit 2, BOC Form -TCl-04681, Narrative., at para.18.

19 Ibid., at paras. 18-19.

20 Exhibit 1, Claim referral information from CBSA/IRCC.

21 Exhibit 5, ICAC-Scheduling ready package dated June 8, 2021.

22 Maldonado, Pedro Enrique Juarez v. MCI (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).

23 Exhibit 2, BOC, received March 8, 2019.

24 Exhibit 7, Disclosure received October 21, 2021, Package 1, Personal Evidence, 3 items 7 pages, items 1-2.

25 Exhibit 10, Disclosure received October 21, 2021, Package 4, photos of the claimants in Mexico and Canada, 23 pages.

26 Exhibit 6, Country Conditions, received October 12, 2021, 21 items, 117 pages.

27 Exhibit 4, National Documentation Package (NDP) for Mexico (September 29, 2021), item 2.1., s. 6 – Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity.

28 Ibid., item 2.8, s.F4.

29 Ibid., item 6.2, s.2.1

30 Ibid.

31 Ibid., item 6.4, s.2.

32 Ibid.

33 Exhibit 6, Country Conditions, received October 12, 2021, 21 items, 117 pages., item 13, at p. 44.

34 Ibid.

35 Ibid.

36 Exhibit 4, NDP for Mexico (September 29, 2021), item 6.1.

37 Ibid., at p.20.

38 Exhibit 6, Country Conditions, received October 12, 2021, 21 items, 117 pages., item 15, at p. 56.

39 Ibid.

40 Ibid., item 17, at p. 62.

41 Ibid., at p. 30.

42 Ibid.

43 Ibid., item 18, at p. 64.

44 Ibid.

45 Ibid., item 19, at p. 66.

46 Ibid.

47 Exhibit 4, NDP for Mexico (September 29, 2021), item 6.2, s. 2.1.

48 Ibid.

49 Exhibit 6, Country Conditions, received October 12, 2021, 21 items, 117 pages, item 11, at p. 41.

50 Exhibit 4, NDP for Mexico (September 29, 2021), item 6.2., s. 2.1.

51 Ibid., item 6.2, s. 3.

52 Ibid.

53 Ibid.

54 Ibid.

55 Ibid., S. 4.

56 Exhibit 4, NDP for Mexico (September 29, 2021), item 2.1. s. Executive Summary.

57 Ibid.

58 Ibid., item 7.13, at p.5.

59 Ibid., at p.13.

60 Ibid., at p.17.

61 Ibid., at item 7.12.

62 Ibid.

63 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.

64 Exhibit 4, NDP for Mexico (September 29, 2021), item 6.2, s. 1.2.

65 Ibid., S. 2.1.

66 Ibid.

67 Ibid.

68 Ibid., item 2.8, s. F2

69 Ibid.

70 Ibid., s. F3.

71 Ibid, item 6.2, s. 6.

72 Ibid., S. 7.

73 Ibid.

74 Exhibit 4, NDP for Mexico (September 29, 2021).

75 Exhibits 6, Country Conditions, received October 12, 2021, 21 items, 117 pages.

76 Exhibit 4, NDP for Mexico (September 29, 2021), item 7.18, s. 3.1.

77 Ibid., S. 3.3.

78 Ibid., item 7.17, s. State Confrontation.

79 Ibid. item 2.1, s. Executive Summary.

80 Ibid., item 7.12 at p. 1.

81 Ibid., at p. 2.

82 Ibid., item 2.2, s. Enforced Disappearances.

83 Ibid., item 2.3, s. Criminal Justice System.

84 Ibid., s. Disappearances.

85 Ibid., item 1.10, s. 3.

86 Ibid.

87 Ibid., s. F.3.

88 Exhibit 6, Country Conditions, received October 12, 2021, 21 items, 117 pages, item 7, at p.30.

89 Exhibit 4, NDP for Mexico (September 29, 2021).

90 Ibid.

91 Exhibit 6, Country Conditions, received October 12, 2021, 21 items, 117 pages.

92 Rasaratnam, Sivaganthan v. MEI (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported:

Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at para 9.

93 Thirunavukkarasu, Sathiyanathan v. MEI (F.C.A., no. A-81-92), Heald, Linden, Rolland, November 10, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).

94 Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended, section 97(1) (b) (ii).

95 Exhibit 4, NDP for Mexico (September 29, 2021); Exhibit 6, Country Conditions, received October 12, 2021, 21

items, 117 pages.

96 Exhibit 4, NDP for Mexico (September 29, 2021), item 6.12., Geography.

97 Ibid., item 7.17., at p.27.

98 Ibid., item 7.15, s. 4.2.

99 Ibid.

100 Ibid.

101 Ibid.

102 Ibid., item 7.18, s. 2.1.2.

Citation: 2020 RLLR 166
Tribunal: Refugee Protection Division
Date of Decision: October 26, 2020
Panel: François Savoie
Counsel for the Claimant(s): Émile Le-Huy
Country: Mexico
RPD Number: MB9-13609
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000048-000054

REASONS FOR DECISION

 INTRODUCTION

 [1]      XXXX XXXX XXXX XXXX, a citizen of Mexico, claims refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).

ALLEGATIONS

[2]       The claimant is a trans woman, trans rights activist and former sex worker from Mexico who fears the police and her former procurer.

[3]       The claimant was illegally detained by the police on multiple occasions. Most recently, she was detained in XXXX 2016, ahead of a press conference organized by a trans rights organization she helped found in Monterrey.

[4]       The claimant was also kidnapped and severely beaten by the police in Puebla in XXXX 2018.

[5]       The claimant fears further mistreatment from the police were she to return to Mexico.

[6]       She also fears retaliation from her former procurer for having publicly denounced her practice of charging a fee to assist trans women in changing their legal names and legal gender in Mexico City. She also fears retaliation from her for having denounced her mistreatment to the police.

[7]       The claimant left Mexico on XXXX XXXX XXXX 2018 and arrived in Montreal the next day. She filed for refugee protection on XXXX XXXX XXXX 2019.

DECISION

[8]       The Tribunal finds that the claimant is a “Convention Refugee” pursuant to section 96 of the IRPA.

ANALYSIS

[9]       In the present case, the Tribunal considered the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guidelines).

Identity

[10]     The claimant’s personal identity and her national identity as a citizen of Mexico are established, on a balance of probabilities, by a copy of her passport filed as evidence.

 Credibility

[11]     The Tribunal finds the claimant credible on the material aspects of her claim; namely that she is a trans woman from Mexico.

[12]     The claimant answered all questions put to her fully, spontaneously and without evasion.

[13]     The claimant was able to explain with great details the difference, stigma, shame, and harm she felt growing up as a transgender woman.

 [14]    The claimant also explained how she began taking hormones at a young age, and later started taking testosterone blockers. She provided details about how she procured these medications. A medical report filed as evidence also showed that she had breast implants.¹

[15]     The claimant explained at large the types of situations she frequently faced in Mexico as a transgender woman. Some of the specific examples she gave could even be largely corroborated by the objective documentary evidence. As an example, the objective documentary evidence states that “[t]ransgender women [are] frequently accused of being involved in sex work, even when they [are] simply running errands like going to buy milk.”² This is in line with the claimant’s testimony that she was once arrested and detained by the police while simply going to buy bread and milk at a depanneur.

[16]     In addition to her testimony, the Tribunal carefully reviewed and considered documents filed by the claimant in support of her allegations. The Tribunal asked the claimant to explain what the process of changing her legal gender entailed. After having heard the claimant on the matter, the Tribunal asked the claimant how the process was reflected in the documentary evidence she provided. The claimant first pointed to her national elector’s card,³ which was issued prior to the name and gender change. This card, issued in 2013, showed her former male name and showed her gender as male. She then pointed to the birth certificate which was issued following her legal name and gender change, issued in 2015.⁴ This document showed her new female name and showed her gender as female.

[17]     Other evidence also allowed the Tribunal to understand the claimant’s activism in the trans sphere. Not only did the claimant seek justice for herself, she also sought to help members of her community by lobbying governments.

Incompatible Behaviour – Travel ta Spain and Return to Mexico

[18]     According to her IMM-5669 form, the claimant travelled to Spain in 2017 to study XXXX XXXX. While in Spain, the claimant did not file for refugee protection and subsequently returned to Mexico.

[19]     The Tribunal asked the claimant why she had not filed for refugee protection in Spain. The claimant testified that she did not feel that things were so bad in Mexico at that time. She also testified that she had started her work as an activist and returned to Mexico to help her friends with their activism project.

[20]     The Tribunal notes that the claimant’s travel to Spain happened prior to the last set of events that lead the claimant to leave Mexico for Canada. The Tribunal is also mindful that, according to the Chairperson’s Guidelines 9, it may be plausible that a trans woman like the claimant would engage “in activity that might put [her] at risk in [her] country of reference.”⁵ Considering the above and the claimant’s profile as an activist, the Tribunal makes no implausibility findings in relation to her failure to file for refugee protection in Spain and in relation to her return to Mexico.

Delay in Claiming Refugee Protection in Canada

[21]     The claimant spent just shy of six months in Canada prior to filing for refugee protection.

[22]     At the hearing, the claimant testified that she had been asked by the Canada Border Services Agency (CBSA) whether she wanted to claim asylum in Canada on arrival in Montreal and that she had answered no to that question.

[23]     Considering the claimant’s personal situation as a trans woman who has been through a lot of violence, the Tribunal does not make any negative inference related to her delay in claiming. The Tribunal subscribes to the observations made by the claimant’s counsel according to which the claimant may not have been necessarily familiar with the workings of refugee claims in Canada and that it is quite possible that she may have had a psychological difficulty in taking action.

Nexus

[24]     For the claim to succeed under section 96 of the IRPA, the persecution must be linked to a Convention ground, in other words, there must be a nexus.

[25]     The Tribunal finds that the claimant has established a nexus to the Convention, as the harm feared is on account of her membership in a particular social group (trans women).

[26]     For the reasons set out under the State Protection and Internal Flight Alternative sections below, the Tribunal also finds that, on a balance of probabilities, the claimant has a serious possibility of facing serious harm should she return to Mexico. The objective documentary evidence tendered into evidence by the board supports this finding.

State Protection

[27]     Canada’s responsibility to provide international protection to the claimant only becomes engaged when national or state protection is unavailable to the claimant. The claimant has the burden of rebutting the presumption of state protection. The Tribunal must now determine whether the claimant has presented clear and convincing evidence to rebut the presumption of state protection.

[28]     According to the objective documentary evidence, transgender women often do not report hate crimes or police abuse because the authorities rarely investigate these crimes.⁶ Crimes committed towards trans women are frequently minimized and mischaracterized by authorities.⁷

[29]     The objective documentary evidence also reports that police officers subject transgender women to arrest, extortion, physical abuse, arbitrary detention, torture, and other human rights violations that are often unpunished.⁸

[30]     While the Mexican government has enacted laws aimed at protecting sexual minorities, such laws only provide explicit protections based on sexual orientation and not based on gender identity.⁹ The fact that the claimant was able to have her name and gender changed on her birth certificate does show that the government is making steps in the right direction, however, legal recognition does not necessarily translate into adequate protection. According to the objective documentary evidence, “federal antidiscrimination laws do not protect transgender communities from persecution because the Mexican government is unable to enforce them, especially because the police themselves are often the perpetrators of violence against transgender people.”¹⁰ Moreover, it is far from clear whether the enactment of antidiscrimination laws “has actually led to an improvement in the treatment of LGBT people generally or transgender women in particular.”¹¹

[31]     Having considered the claimant’s testimony and the objective documentary evidence regarding the availability of state protection for trans women in Mexico, the Tribunal is of the view that evidence of Mexico’ s inability to protect trans women is clear and convincing. The Tribunal therefore finds that, on a balance of probabilities, the state protection afforded to trans women in Mexico is inadequate and that the claimant has rebutted the presumption that state protection is available in her country.

Internal Flight Alternative (IFA)

 [32]    According to the objective documentary evidence, Mexico has the second-highest index of crimes motivated by transphobia in Latin America after Brazil.¹² Geographically, transphobic murders occur throughout the country including in areas with more progressive laws such as Mexico City.¹³

[33]     Nothing in the evidence suggests that the claimant could be safe outside of her home area. The claimant testified that she moved across the country on several occasions, yet always ended up being badly treated by the police everywhere she went.

[34]     The Tribunal finds that there is, on a balance of probabilities, a serious probability of the claimant being persecuted throughout Mexico. There are no internal flight alternatives available to the claimant.

CONCLUSION

[35]     Having considered all the evidence, the Tribunal determines that there’s a serious possibility that the claimant would be persecuted in her country.

[36]     The Tribunal concludes that the claimant is a Convention refugee.

[37]     The claim of XXXX XXXX XXXX XXXX is accepted.

(signed) François Savoie      

October 26, 2020

¹      Document 4 – Exhibit D-6.

²      Document 3 – National Documentation Package (NDP), Mexico, 30 September 2020, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT            Clinic. May 2016, page 13.

³      Document 4 – Exhibit D-10.

⁴      Document 5 – Birth Certificate issued on XXXX XXXX, 2015 (Submitted during the hearing).

⁵      Guidelines 9 – 7.5.1 Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and     Gender Identity and Expression. Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the               Immigration and Refugee Protection Act. Effective date: May 1, 2017.

⁶      Supra, note 2, page 12.

⁷      Idem.

⁸      Supra, note 2, page 18.

⁹      Ibid, page 11.

¹⁰     Idem.

¹¹     Ibid, page 10.

¹²     Ibid, page 15.

¹³     Idem.

Citation: 2021 RLLR 29
Tribunal: Refugee Protection Division
Date of Decision: March 17, 2021
Panel: Vandana Patel
Counsel for the Claimant(s): Adrienne C. Smith
Country: Mexico
RPD Number: TB9-32419
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000141-000150

REASONS FOR DECISION

[1]     XXXX XXXX XXXX XXXX XXXX XXXX (the claimant), a citizen of Mexico, seeks refugee protection, under sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).¹

ALLEGATIONS

[2]     The claimant’s allegations are set out fully in her Basis of Claim (BOC) forms.² The claimant fears persecution from her family and society generally because of her gender identity. She fears that, if forced to return to the transphobic environment in Mexico, she will be subjected to persecution based on her gender identity from members of Mexican society, including certain members of her family, prospective employers and the authorities. The claimant alleges that she has been verbally, emotionally, psychologically and physically abused by members of her family and others, during her adolescence and adulthood, in Mexico. The claimant also alleges that she suffered discrimination and violence due to her gender identity.

DETERMINATION

[3]     The panel finds that the claimant would face a serious possibility of persecution on a Convention ground upon return to Mexico. She is a Convention refugee and the claim is accepted.

ISSUES

Nexus

[4]     The claimant alleges that the persecution she faces is due to her membership in a particular social group in Mexico, namely trans women. The panel accepts that gender identity is a particular social group and has, therefore, assessed this claim against section 96 of the IRPA.

Identity

[5]     The claimant’s identity as a citizen of Mexico is established, on a balance of probabilities, as per her passport.³

Credible Subjective Fear

[6]     In considering credibility, the panel is aware of the difficulties that may be faced by the claimant, a 45 year old trans woman, in establishing a claim, namely, the setting of the hearing room and the stress inherent in responding to questions. The panel has also considered the contents of the medical report.⁴

[7]     Most importantly, the panel has considered and applied Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guidelines)⁵ and in this regard it has carefully examined the claimant’s oral testimony in line with the factors to be considered when applying this Guideline.

[8]     The claimant was not reluctant to discuss her gender identity. She was born a male but she has openly identified as a trans female for many years, since at least when she was a teenager. She testified about her fears, including having to hide her gender identity, based on her past experiences in Mexico, if she must return to Mexico. The claimant testified that when she lived in Mexico, including in Mexico City, she had to bide her identity as a trans woman. Members of her family and other members of the community have made transphobic comments about her gender identity.

[9]     The claimant had great difficulty testifying about being abducted and sent to a “conversion therapy” clinic by her family to change her gender identity. In this regard, the panel was cognizant of the claimant’s XXXX health issues, adding to the marginalization factor. The claimant was deemed to be a vulnerable person based on medical evidence and the panel made accommodations. Guideline 8 – Concerning Procedures with Respect to Vulnerable Persons Appearing Before the Immigration and Refugee Board of Canada⁶ was considered and applied. She testified about her fears about being misgendered. violence and being killed because of her gender identity. She fears for her safety living as a trans woman anywhere in Mexico.

[10]   The claimant’s history of social isolation, mistreatment and lack of social support and mental disabilities were considered in terms of the way she testified. The report by the XXXX resident submitted was considered; in particular the diagnosis of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (in remission) and XXXX XXXX XXXX (in remission); and the significant impact of the claimant’s experience of emotional and physical violence as a result of her gender identity.⁷ The report states, “On assessment, she reports a significant trauma history, involving a forced institutionalization while living in Acapulco, Mexico several years ago, which has resulted in symptoms of XXXX XXXX XXXX XXXX, including reexperiencing, XXXX XXXX XXXX and negative XXXX in XXXX XXXX and XXXX.

[11]   Given that the claimant was straightforward and gave many details in other areas of her testimony, the panel accepts that she experienced a traumatic experience, involving some kind of conversion therapy that had a link to her gender identity. For example, she testified about them cutting her hair.

[12]   The claimant gave evidence as to why she had re-availed herself of Mexico after years in the U.S., why she did not make an asylum claim in the U.S. and why she took so long to make a refugee claim in Canada. The panel accepts this as not being determinative of the claim,⁸ given her residual profile, a trans woman, for which there is a serious possibility of forward-looking persecution in Mexico, based on the National Documentation Package for Mexico⁹ and the claimant’s documentary disclosure.¹⁰

[13]   Although credibility, persecution versus discrimination and whether she has a subjective fear of return to Mexico (delay and re-availment) were identified at the hearing along with other issues, in keeping with the SOGIE Guidelines, the panel does not find that these issues detract from the claimant’s credibility. In totality, the panel was satisfied that the claimant’s testimony was credible and that she has identified as a female for years. The panel accepts that the claimant is a transgender woman and that she has a subjective fear of persecution in Mexico.

[14]   Moreover, the claimant’s testimony was corroborated by copious amounts of corroborative documentary evidence,¹¹ including medical reports from XXXX 2020, letter of support from the Hola Group dated XXXX XXXX XXXX 2020, letter of support from XXXX XXXX XXXX XXXX XXXX Neighbourhood Centre, letter of support from XXXX XXXX XXXX, The 519 (dated XXXX XXXX XXXX 2020), letter of support from XXXX XXXX, The 519 (dated XXXX XXXX XXXX 2021), several other support letters from her friends, emails related to her asylum application in the U.S., an email from the claimant to Adam House requesting assistance in refugee and legal aid process dated XXXX XXXX XXXX 2019, other emails relating to making her claim in Canada, photographs, and media articles confirming the situation for LGBTQ communities in Mexico and in illegal rehab centres in Mexico. Thus, the panel finds, on a balance of probabilities, that the claimant has subjective fear.

Objective Basis

[15]   Transgender women in Mexico still face pervasive persecution based on their identity gender identity and expression. Documentation notes the following:

Indeed, violence against LGBT people has actually increased, with transgender women bearing the brunt of this escalation. Changes in the laws have made the LGBT communities more visible to the public and more vulnerable to homophobic and transphobic violence. Increased visibility has actually increased public misperceptions and false stereotypes about the gay and transgender communities. This has produced fears about these communities, such as that being gay or transgender is “contagious” or that all transgender individuals are HIV positive. These fears have in turn led to hate crimes and murders of LGBT people, particularly women.

[…]

Transgender women continue to face beatings, rape, police harassment, torture and murder in Mexico.¹²

[16]   It is reasonable to conclude from a review of the country conditions that while there has been some improvement in terms of attitudes towards LGBTQ issues, many challenges remain, particularly for persons with the claimant’s profile.

[17]   While unprecedented political and legal gains have been made in Mexico, the religious, cultural and social environment in most of Mexico remains repressive, and often dangerous.¹³ Machista ideals of manly appearance and behavior contribute to extreme prejudices against sexual minorities, and violence against them.

[18]   Moreover, as the claimant testified, she is fearful of the police. This is also supported in the documentary evidence. In this regard, the panel has considered the personal circumstances of this claimant which includes her age and health status, along with her history which is well­ documented. The panel further accepts that in the claimant’s circumstances, it may be unreasonable for her to approach the state for protection, keeping in mind that the state protection must be adequate at the operational level.

[19]   Furthermore, issues such as employment, secure housing, access to medical treatment as well as treatment related to the transition process must be considered, along with mental health issues and equal access to social services:

Vulnerable communities, including transgender women, are often victims of drug cartel and gang violence. Transgender women fall victim to cartel kidnappings, extortions, and human trafficking. One transgender woman described how cartel members forced her into sex work in Merida. Another transgender woman was targeted for rape and robbery while traveling by bus. In another case, a transgender woman named Joahana in Cancun was tortured to death by drug traffickers who carved a letter “Z” for the Zeta cartel into her body. If a cartel targets a transgender woman, it is nearly impossible to escape the cartel’s power. An immigration attorney in the U.S. described in an interview how his transgender female client unknowingly dated a cartel member. After doing so, she could not escape persecution from the cartel.¹⁴

[20]   A recent Response to Information Request further notes from various sources that despite the president creating the National Guard, which began its activities to fight organized crime on June 30, 2019, “at the expense of the local police forces that are experiencing precarious conditions”, “the organization has failed to address criminality in a measurable way” and “violence has not decreased in the three states with the greatest National Guard contingent.”¹⁵

[21]   The documentation indicates that antidiscrimination laws do not prohibit discrimination on the basis of gender identity. The lack of protection leaves transgender women especially vulnerable to employment discrimination.¹⁶ Transgender women in Mexico often lack access to gender health care and are generally denied the ability to change their name and/or gender on identity documents to match their gender presentation. It is indicated:

It should be noted that transgender people cannot simply “hide” who they are and thereby escape persecution by living in accordance with their birth-assigned gender role. Gender dysphoria is a serious condition. recognized by every major medical association, the only trea1rnen1 for which is to live in accordance with the gender with which they identify, rather than the gender assigned at birth. Attempting to suppress one’s gender identity can have dire health consequences. Moreover, a person’s gender identity is a fundamental component of identity. which cannot be required io be changed or hidden as a condition of protection under asylum. laws.

As noted, only Mexico City permits transgender people to legally change their name and gender to correspond to their gender identity. Even where such mechanisms are technically available, however, legal name changes are not accessible in practice for many transgender women. This is in part due to “lengthy delays and high costs-at least six months and approximately 70,000 pesos… are required, and completion sometimes depend[s] on the ‘good will’ of some civil servants.”…

[…]

Transgender women lack adequate health care in Mexico. Many transgender women resist seeking medical help because they must disclose their transgender status and subsequently face hostility and threats of violence from medical providers. Medical care providers often do not want to provide medical attention to transgender patients. Providers have mocked and humiliated transgender patients using offensive language, threats, aggression, and hostility. Consequently, transgender women do not routinely access preventive or emergency care.

In particular, medical care to support gender transition-such as hormones or surgeries­ is almost entirely unavailable to most transgender women in Mexico. While medical authorities uniformly recognize the medical necessity of transition related treatment, such care is not covered under Mexico’s national health plan and licensed providers (for those who can afford to pay out of pocket) are scarce.211 Even where it is available, such care can be prohibitively expensive for transgender women already suffering the effects of economic marginalization discussed earlier.212 Without access to gender-affirming medical care, many transgender women permanently damage their skin and muscles by injecting dangerous black-market feminizing liquid silicone or other fillers.¹⁷

[22]     Further documentation notes:

The May 2016 report of the Cornell Law School LGBT Clinic and the Transgender Law Center also specifies that there are “no federal laws that explicitly protect transgender individuals from discrimination on the basis of their gender identity (i.e., their transgender status) as opposed to sexual orientation”…

[…]

In a short overview of, among others, hate crime legislation in different countries, the same report indicates, however, that in Mexico there is no such legislation. The report, in contradiction to the above cited explanation, states that the federal law neither criminalises hate speech nor hate crimes. The report in this context mentions article 149 Ter of the Federal Criminal Code of Mexico which refers to discrimination…

[…]

In its query response about the situation and treatment of sexual minorities, particularly in Mexico City, Cancun, Guadalajara, and Acapulco of August 2015, the Immigration and Refugee Board of Canada (IRB) writes:

A report on crimes against transgendered women sent to the Research Directorate by a representative at the Support Centre for Transgender Identities…, an NGO that advocates for the rights of transgendered women in Mexico …, indicates that transgendered women are discriminated against by the police and judicial authorities … The representative from Colectivo León Gay, A.C. indicated that LGBT persons are [translation] ‘frequently’ harassed and arbitrarily detained due to their physical appearance, the way they dress, or for expressing affection in public… The representative also indicated that they are barred from assembling in public because they are seen as ‘engaging in prostitution or giving a ‘bad example’ or ‘bad image’ to society … ¹⁸ [footnotes omitted]

[23]   Thus, the panel finds, on a balance of probabilities, that there is an objective basis for the claimant’s subjective fear.

No State Protection

[24]   In light of the above documentary evidence regarding similarly situated persons in Mexico who did not receive adequate state protection, there is sufficient evidence before the panel to conclude that, despite efforts made by the state, at this time, the state is not able to offer adequate protection¹⁹ to trans women, like the claimant.

[25]   Therefore, the panel finds that there exists clear, convincing and cogent proof that state protection is not available to trans women, like the claimant, in Mexico. The panel, therefore, finds that the claimant has rebutted the presumption of state protection and has established that her fear is objectively well-founded since the harm she fears cumulatively amounts to persecution.

Internal Flight Alternative (IFA)

[26]   With respect to an IFA, it is clear from the documentary evidence that societal prejudices against transgender persons are found all over Mexico, including Mexico City. Documentation reports as follows:

Police harassment against the LGBT community remains high in Mexico City as well. Despite the reputation of the Zona Rosa district of Mexico City as an LGBT neighborhood, extortion and harassment particularly of transgender women continues there. As described above, Mexico City also has the highest rate of transphobic murders in the country. Moving to Mexico City will therefore not protect transgender women from persecution: they will remain vulnerable no matter where they reside in Mexico.²⁰ [footnotes omitted]

[27]   There is blatant disregard for the safety and wellbeing of trans women, like the claimant. Homicides and assaults against these groups continue under a backdrop of religious and cultural tolerance and moral condemnation. Having to hide her gender identity amounts to a serious interference with a basic human right, constituting persecution.²¹ Based on the evidence adduced, the panel finds that there is no viable IFA for trans women in Mexico City or throughout Mexico.

[28]   Based on the totality of the evidence adduced, the panel finds, on a balance of probabilities, that there is a serious possibility, based on her evidence, that she would be persecuted due to her gender identity as a trans woman should she return to Mexico.

CONCLUSION

[29]   Accordingly, the panel accepts the claimant as a Convention refugee. The claim is accepted.

(signed) Vandana Patel

March 17, 2021

1 Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).

2 Exhibit 2, Basis of Claim (BOC) form; and Exhibit 2.1, BOC amendment.

3 Exhibit 1, package of Information from CBSA/CIC, certified true copy of the claimant’s passport.

4 Exhibit 5.

5 Chairperson ‘s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.

6 Chairperson ‘s Guideline 8 – Concerning Procedures with Respect to Vulnerable Persons Appearing Be/ore the Immigration and Refugee Board of Canada.

7 Exhibit 5, disclosure, pp. 28 to 34.

8 Rajudeen v. Canada (Minister of Employment & Immigration), [1984] F.C.J. No. 601, 55 N.R. 129 (F.C.A); and

Sukhu v. Canada (Minister of Citizenship & Immigration), 2008 FC 427.

9 Exhibit 3.

10 Exhibit 5.

11 Exbibit 5.

12 Exhibit 3, item 6.3.

13 Ibid., 6. 4.

14 Ibid., 6.3.

15 Ibid., item 7.18.

16 Ibid., item 6.4.

17 Ibid., item 6.3.

18 Ibid., item 6.1.

19 Ibid., item 6.4.

20 Ibid., item 6.3.

21 Sadeghi-Pari v. Canada (Minister of Citizenship and Immigration), 2004 FC 282; See also, Rocha Cortes v. Canada (Citizenship and Immigration), 2020 FC 661; and A.B. v. Canada (Citizenship and Immigration), 2020 FC203.

Citation: 2021 RLLR 13
Tribunal: Refugee Protection Division
Date of Decision: June 17, 2021
Panel: Jodie Schmalzbauer
Counsel for the Claimant(s): Mary Jane Campigotto
Country: Mexico
RPD Number: VC1-02663
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000044-000050

REASONS FOR DECISION

INTRODUCTION

[1]     This is the decision of the Refugee Protection Division (“RPD”) in the claim of XXXX XXXX XXXXA.K.A XXXX XXXX XXXX (the “claimant”) as a citizen of Mexico who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “Act”).¹

[2]     The panel has applied the Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE) to understand cases involving sexual orientation, gender identity and expression, and the harm individuals may face due to their non-conformity with socially accepted SOGIE norms.²

DETERMINATION

[3]     The panel finds that the claimant is a Convention refugee, as she does have a well-founded fear of persecution related to a Convention ground in Mexico.

ALLEGATIONS

[4]     The following is a brief synopsis of the allegations that the claimant put forth in the Basis of Claim (BOC) form and narrative.³ The claimant submits that she will continue to face serious discriminations amounting to persecution for her gender identity in Mexico.

[5]     The claimant submits that she has identified as a woman since her childhood. Her family had done their best when it came at first to “treating” the claimant with hormones to later supporting her, for who she is. The claimant has campaigned since her youth to educate and promote acceptance among children and the community. She continued studying education to support her passion in anti­bullying and inclusivity. The claimant decided to leave Mexico after her father had passed away, losing both of her parents, who were here “pillars” of support helped her to decide to move to a country that would accept her and let her live a peaceful life.

ANALYSIS

Identity/Country of Reference Mexico

[6]     The panel is satisfied on a balance of probabilities, in the claimant’s identity and his citizenship, considering the certified copy of Mexico passport on file.⁴

Well-Founded Fear of Persecution

[7]     The claimant fears persecution due to her membership in a particular social group, due to her sexual orientation and gender identity. The duty of this panel is to find if there is sufficient credible or trustworthy evidence to determine that there is more than a mere possibility that this claimant would be persecuted if she returned to Mexico.

[8]     The claimant testified in a very genuine, straightforward, emotional, and unassuming manner. She was passionate about her educational activities, she provided photos and testimony about the events in question.⁵ She spoke about her challenges and violence directed towards due to her gender identity. She submitted support letters, attesting to her personal history and her socially non­conforming gender identity.

[9]     According the Repot on Human Rights Conditions of Transgender Women:

Despite the legal changes for same-sex couples in recent years, transgender women in Mexico still face pervasive persecution based on their gender identity and expression. Indeed, violence against LGBT people has actually increased, with transgender women bearing the brunt of this escalation. Changes in the laws have made the LGBT communities more visible to the public and more vulnerable to homophobic and transphobic violence. Increased visibility has actually increased public misperceptions and false stereotypes about the gay and transgender communities. This has produced fears about these communities, such as that being gay or transgender is “contagious” or that all transgender individuals are HIV positive. These fears have in turn led to hate crimes and murders of LGBT people, particularly transgender women.⁶

Negative attitudes towards the LGBT community remain very common in Mexico.165 Homophobic and transphobic comments from public figures, such as former President Felipe Calderon, diminish the quality and dignity of transgender women’s lives by perpetuating widespread hatred and violence. There is also a nationwide backlash against advances in LGBT rights, resulting in increased levels of persecution against transgender women who tend to be the most visible and marginalized members of the LGBT community.⁷

[10]   Transgender women lack adequate healthcare in Mexico, many hide their transgender status to avoid hostility or threats from medical practitioners. There almost no availability of medical care for gender transition.⁸ The lack of positive protections on the basis of gender identity, leave transgender women vulnerable to employment discrimination. Few transgender women are able to sufficiently support themselves and end up resorting to sex work to survive, which results in yet more violence.⁹ Given the significant infringements upon the basic human rights of transgender women, the panel finds that evidence before it, establishes a systemic and pervasive treatment of transgender women, amounts to persecution.

[11]   Given the claimant’s credibility as to her gender identity and the unequivocal country condition evidence of the treatment of individuals similar to the claimant, the panel finds the claimant would face more than a serious possibility of persecution if she were to return to Mexico.

State Protection

[12]   State protection would not be reasonably forthcoming in this particular case. The panel has reviewed the country condition evidence of the situation of those with diverse SOGIE in Mexico and does recognize the Federal and some state protections in place.

[13]   In response to the growing public profile of sexual and gender minorities:

Some Mexican communities have explicitly targeted transgender women by enacting morality laws that criminalize “cross-dressing.” Local transgender women reported a dramatic increase in police harassment following the law’s passage. Transgender women stopped by the police frequently faced extortion; “[t]he police used… the threat of arrest… to secure money or sexual favors from [transgender women]. The passage of morality laws like those in Tecate criminalizes transgender women and sanctions police harassment and private discrimination. The passage and retention of these laws reflect continued societal hostility towards transgender people.¹⁰

[14]   Persons seeking protection from harassment and violence are routinely re-victimized by police their claims downplayed. Regular harassment by police is also reported. LGBTIQ+ individuals are frequently beaten, mocked, and forced to pay bribes in order to escape custody and in the recent years, have also reported physical assaults against them.¹¹

[15]   Despite the existence of these formal protections around sexual orientation, advocates maintain that these laws have not prevented discrimination and violence. LGBT individuals face many barriers in exercising their rights under the antidiscrimination statutes. LGBT individuals who experience discrimination may be afraid to disclose their sexual orientation or gender identity to a federal agency and may be concerned about potential retaliation by public officials. This concern is especially relevant since the law does not have a clear enforcement mechanism or any provision that protects against retaliation.¹²

[16]   Considering the lack of any positive respect for the rights of LGBTIQ+ persons, and numerous reports of mistreatment of those persons with diverse SOGIE by law enforcement in evidence, the panel finds there is clear and convincing evidence that claimant, or persons similarly situated to the claimant, are unable to obtain adequate state protection.

Internal Flight Alternative

[17]   The first prong of this assessment is to determine on a balance of probabilities if there is a serious possibility of persecution in the internal flight alternative (IFA) or no risk to life, cruel and unusual treatment or punishment or danger of torture in the IFA.

[18]   The situation for individuals with diverse SOGIE is prevalent throughout Mexico. Although there are support groups in the larger centers in particular Mexico City, they have little impact in assisting members from violence or harassment. Negative attitudes towards the LGBT community remain very common in Mexico. Homophobic and transphobic comments from public figures, such as former President Felipe Calderon, diminish the quality and dignity of transgender women’s lives by perpetuating widespread hatred and violence. There is also a nationwide backlash against advances in LGBT rights, resulting in increased levels of persecution against transgender women who tend to be the most visible and marginalized members of the LGBT community.¹³

[19]   Although Mexico City, has been making serious efforts in assisting transgender women, including in documentation and identity changes, Mexico City also leads Mexico in the number or missing and murdered transgender women in Mexico. Considering, the evidence before this panel, there is no place in Mexico where the claimant would not face a serious possibility of persecution.

CONCLUSION

[20]   For the foregoing reasons, the panel concludes that the claimant is a Convention refugee and therefore accepts her claim. As the claim is accepted pursuant to Section 96 of the Act, there is no need to assess the claim made under Section 97(1)(b).

(signed) J. Schmalzbauer

June 17, 2021

¹ Immigration and Refugee Protection Act, S.C. 2001, c. 27.

² Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE), May 1, 2017.

³ Exhibit 2.

⁴ Exhibit 1.

⁵ Exhibit 4.

⁶ National Documentation Package, Mexico, 30 April 2021, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016.

⁷  National Documentation Package, Mexico, 30 April 2021, tab 6.3.

⁸  National Documentation Package, Mexico, 30 April 2021, tab 6.3.

⁹ National Documentation Package, Mexico, 30 April 2021, tab 6.3.

¹⁰ National Documentation Package, Mexico, 30 April 2021, tab 6.3.

¹¹ National Documentation Package, Mexico, 30 April 2021, tab 6.3.

¹² National Documentation Package, Mexico, 30 April 2021, tab 6.3.

¹³ National Documentation Package, Mexico, 30 April 2021, tab 6.3.

Citation: 2021 RLLR 13
Tribunal: Refugee Protection Division
Date of Decision: June 17, 2021
Panel: Jodie Schmalzbauer
Counsel for the Claimant(s): Mary Jane Campigotto
Country: Mexico
RPD Number: VC1-02663
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000044-000050

REASONS FOR DECISION

INTRODUCTION

[1]     This is the decision of the Refugee Protection Division (“RPD”) in the claim of XXXX XXXX XXXXA.K.A XXXX XXXX XXXX (the “claimant”) as a citizen of Mexico who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “Act”).¹

[2]     The panel has applied the Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE) to understand cases involving sexual orientation, gender identity and expression, and the harm individuals may face due to their non-conformity with socially accepted SOGIE norms.²

DETERMINATION

[3]     The panel finds that the claimant is a Convention refugee, as she does have a well-founded fear of persecution related to a Convention ground in Mexico.

ALLEGATIONS

[4]     The following is a brief synopsis of the allegations that the claimant put forth in the Basis of Claim (BOC) form and narrative.³ The claimant submits that she will continue to face serious discriminations amounting to persecution for her gender identity in Mexico.

[5]     The claimant submits that she has identified as a woman since her childhood. Her family had done their best when it came at first to “treating” the claimant with hormones to later supporting her, for who she is. The claimant has campaigned since her youth to educate and promote acceptance among children and the community. She continued studying education to support her passion in anti­bullying and inclusivity. The claimant decided to leave Mexico after her father had passed away, losing both of her parents, who were here “pillars” of support helped her to decide to move to a country that would accept her and let her live a peaceful life.

ANALYSIS

Identity/Country of Reference Mexico

[6]     The panel is satisfied on a balance of probabilities, in the claimant’s identity and his citizenship, considering the certified copy of Mexico passport on file.⁴

Well-Founded Fear of Persecution

[7]     The claimant fears persecution due to her membership in a particular social group, due to her sexual orientation and gender identity. The duty of this panel is to find if there is sufficient credible or trustworthy evidence to determine that there is more than a mere possibility that this claimant would be persecuted if she returned to Mexico.

[8]     The claimant testified in a very genuine, straightforward, emotional, and unassuming manner. She was passionate about her educational activities, she provided photos and testimony about the events in question.⁵ She spoke about her challenges and violence directed towards due to her gender identity. She submitted support letters, attesting to her personal history and her socially non­conforming gender identity.

[9]     According the Repot on Human Rights Conditions of Transgender Women:

Despite the legal changes for same-sex couples in recent years, transgender women in Mexico still face pervasive persecution based on their gender identity and expression. Indeed, violence against LGBT people has actually increased, with transgender women bearing the brunt of this escalation. Changes in the laws have made the LGBT communities more visible to the public and more vulnerable to homophobic and transphobic violence. Increased visibility has actually increased public misperceptions and false stereotypes about the gay and transgender communities. This has produced fears about these communities, such as that being gay or transgender is “contagious” or that all transgender individuals are HIV positive. These fears have in turn led to hate crimes and murders of LGBT people, particularly transgender women.⁶

Negative attitudes towards the LGBT community remain very common in Mexico.165 Homophobic and transphobic comments from public figures, such as former President Felipe Calderon, diminish the quality and dignity of transgender women’s lives by perpetuating widespread hatred and violence. There is also a nationwide backlash against advances in LGBT rights, resulting in increased levels of persecution against transgender women who tend to be the most visible and marginalized members of the LGBT community.⁷

[10]   Transgender women lack adequate healthcare in Mexico, many hide their transgender status to avoid hostility or threats from medical practitioners. There almost no availability of medical care for gender transition.⁸ The lack of positive protections on the basis of gender identity, leave transgender women vulnerable to employment discrimination. Few transgender women are able to sufficiently support themselves and end up resorting to sex work to survive, which results in yet more violence.⁹ Given the significant infringements upon the basic human rights of transgender women, the panel finds that evidence before it, establishes a systemic and pervasive treatment of transgender women, amounts to persecution.

[11]   Given the claimant’s credibility as to her gender identity and the unequivocal country condition evidence of the treatment of individuals similar to the claimant, the panel finds the claimant would face more than a serious possibility of persecution if she were to return to Mexico.

State Protection

[12]   State protection would not be reasonably forthcoming in this particular case. The panel has reviewed the country condition evidence of the situation of those with diverse SOGIE in Mexico and does recognize the Federal and some state protections in place.

[13]   In response to the growing public profile of sexual and gender minorities:

Some Mexican communities have explicitly targeted transgender women by enacting morality laws that criminalize “cross-dressing.” Local transgender women reported a dramatic increase in police harassment following the law’s passage. Transgender women stopped by the police frequently faced extortion; “[t]he police used… the threat of arrest… to secure money or sexual favors from [transgender women]. The passage of morality laws like those in Tecate criminalizes transgender women and sanctions police harassment and private discrimination. The passage and retention of these laws reflect continued societal hostility towards transgender people.¹⁰

[14]   Persons seeking protection from harassment and violence are routinely re-victimized by police their claims downplayed. Regular harassment by police is also reported. LGBTIQ+ individuals are frequently beaten, mocked, and forced to pay bribes in order to escape custody and in the recent years, have also reported physical assaults against them.¹¹

[15]   Despite the existence of these formal protections around sexual orientation, advocates maintain that these laws have not prevented discrimination and violence. LGBT individuals face many barriers in exercising their rights under the antidiscrimination statutes. LGBT individuals who experience discrimination may be afraid to disclose their sexual orientation or gender identity to a federal agency and may be concerned about potential retaliation by public officials. This concern is especially relevant since the law does not have a clear enforcement mechanism or any provision that protects against retaliation.¹²

[16]   Considering the lack of any positive respect for the rights of LGBTIQ+ persons, and numerous reports of mistreatment of those persons with diverse SOGIE by law enforcement in evidence, the panel finds there is clear and convincing evidence that claimant, or persons similarly situated to the claimant, are unable to obtain adequate state protection.

Internal Flight Alternative

[17]   The first prong of this assessment is to determine on a balance of probabilities if there is a serious possibility of persecution in the internal flight alternative (IFA) or no risk to life, cruel and unusual treatment or punishment or danger of torture in the IFA.

[18]   The situation for individuals with diverse SOGIE is prevalent throughout Mexico. Although there are support groups in the larger centers in particular Mexico City, they have little impact in assisting members from violence or harassment. Negative attitudes towards the LGBT community remain very common in Mexico. Homophobic and transphobic comments from public figures, such as former President Felipe Calderon, diminish the quality and dignity of transgender women’s lives by perpetuating widespread hatred and violence. There is also a nationwide backlash against advances in LGBT rights, resulting in increased levels of persecution against transgender women who tend to be the most visible and marginalized members of the LGBT community.¹³

[19]   Although Mexico City, has been making serious efforts in assisting transgender women, including in documentation and identity changes, Mexico City also leads Mexico in the number or missing and murdered transgender women in Mexico. Considering, the evidence before this panel, there is no place in Mexico where the claimant would not face a serious possibility of persecution.

CONCLUSION

[20]   For the foregoing reasons, the panel concludes that the claimant is a Convention refugee and therefore accepts her claim. As the claim is accepted pursuant to Section 96 of the Act, there is no need to assess the claim made under Section 97(1)(b).

(signed) J. Schmalzbauer

June 17, 2021

¹ Immigration and Refugee Protection Act, S.C. 2001, c. 27.

² Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE), May 1, 2017.

³ Exhibit 2.

⁴ Exhibit 1.

⁵ Exhibit 4.

⁶ National Documentation Package, Mexico, 30 April 2021, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016.

⁷  National Documentation Package, Mexico, 30 April 2021, tab 6.3.

⁸  National Documentation Package, Mexico, 30 April 2021, tab 6.3.

⁹ National Documentation Package, Mexico, 30 April 2021, tab 6.3.

¹⁰ National Documentation Package, Mexico, 30 April 2021, tab 6.3.

¹¹ National Documentation Package, Mexico, 30 April 2021, tab 6.3.

¹² National Documentation Package, Mexico, 30 April 2021, tab 6.3.

¹³ National Documentation Package, Mexico, 30 April 2021, tab 6.3.

Citation: 2019 RLLR 152
Tribunal: Refugee Protection Division
Date of Decision: November 5, 2019
Panel: Bonita Small
Counsel for the Claimant(s): Michael Murray Aytenfisu
Country: Mexico
RPD Number: VB9-04275
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000169-000177

REASONS FOR DECISION

INTRODUCTION

[1]       This is the decision of the Refugee Protection Division in the claim of XXXX XXXX (AKA XXXX) XXXX XXXX XXXX, a citizen of Mexico.

[2]       The claimant, who is a minor, claims refugee protection under s. 96 and 97(1)(a) and 97(1)b) Immigration and Refugee Protection Act (IRPA).¹

[3]       The panel has appointed XXXX XXXX XXXX as designated representative of the claimant. In rendering its reasons, the panel has considered and applied the Chairperson’s Guideline 3 on Child Refugee Claimants: Procedural and Evidentiary Issues and the Chairperson’ Guideline 9 on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression

DETERMINATION

[4]       I find that the claimant is a Convention Refugee pursuant to section 96 of the IRPA.

ALLEGATIONS

[5]       The claimant is a XXXX XXXXyear-old transsexual male from a suburb of Mexico City in Mexico. His biological father is still in Mexico. His mother is now deceased, after being killed by the claimant’s mother’s partner at the time. The claimant now lives in Canada under the auspices of a guardian.

[6]       The claimant calls himself a transsexual male. When asked why, the claimant explained that his goal is to transition into a male. However, since he hasn’t had any surgeries yet to start that process, he calls himself transsexual as opposed to transgender. He does identify as a male and in that regard, now calls himself XXXX, as opposed to his birthname, XXXX. He stated for the most part, his friends in school refer to him as XXXX, as does his guardian, XXXX and his sister, with whom he lives.

[7]       The claimant testified that he started noticing that he didn’t want to be a woman when he was XXXX years old; he felt like “he was living his life inside a body where he didn’t belong.” He was confused because to be a female in Mexico was to act like a “princess” and to be “delicate like a woman”. However, he recalls that since he was four that he liked to play rough with everyone and that he didn’t like dressing the “way they wanted him to.”

[8]       These thoughts started becoming more important to him and at age XXXX XXXX he started asking people at school to call him by a different name. Several of his friend’s mothers thought he was weird and complained to his mother. The claimant remembers his mother crying and asking him why he was causing her so many problems. The claimant also remembers being told not to come to school because of who he was.

[9]       When asked about where he is in the process of transition, the claimant explained that he wears a “binder” to flatten his breasts, that his hair is cut short in the style of a man and that he wears male clothing. He wanted to start testosterone treatment and have breast surgery but the doctor he spoke about this told him he was too young.

[10]     When asked about what he fears if he goes back to Mexico, the claimant stated that he would have many problems. He would have to use the name he was given at birth, XXXX XXXX and the people in Mexico “wouldn’t accept him because they’re close-minded.”

[11]     He saw and heard of people who were transvestites that were either beaten or killed. He stated if he went back, he “couldn’t be himself” for fear of talking about what he wants to be and being killed.

ANALYSIS

Identity

[12]     I find that identity has been proven on the balance of probabilities by the proffering of a passport in the name of the claimant, XXXX XXXX XXXX XXXX XXXX, who wishes to be called XXXX. (see Exhibit #1)

Credibility

[13]     The determinative issue in this matter is whether or not the claimant has credibly demonstrated that he was born a female but is undergoing the process of transitioning to a male. On that issue, the panel has found there is more than enough evidence on the balance of probabilities to make that finding, based on the credible testimony of the claimant, corroborative statement documents and a document from the Gender Program stating that the claimant is on a waiting list. (Exhibit 5) The claimant stated that he went to see a doctor about having surgery which would help to transition him into a male, however he was told that he was too young. All of the above demonstrates the claimant’s clear intentions to transition despite being advised that it was not possible at this juncture due to his young age. As well, the panel has taken note that the claimant is on a waiting list to attend the Gender Program at the University of XXXX. It is reasonable to conclude, that by proceeding with such a project, that the claimant’s gender issues continue to dominate his life and further bolster his claim that he wishes to transition into a male.

[14]     The panel has noted that the Minister provided written submissions in this claim on the issue of credibility. Although it is not clear from reviewing the submissions and the documents, it would appear that the issue of credibility is based on the fact that the claimant originally applied to Canada for a student visa, which was rejected. A few months later, he arrived in Canada and applied for refugee protection. The panel has not been provided with the reasons for the rejection of the student visa application.

[15]     In arriving at a decision on credibility, the panel is unable to conclude that the minister’s submission negatively impacts the claimant’s credibility. The panel found the claimant to be credible in his testimony. He was consistent in his narrative and sincere in his beliefs. In particular, he described his past experiences identifying as a male, trying to express his gender identity as such and being met with a lack of support in his community; for example, having to miss school due to complaints made by his friends’ mothers regarding his request to be called a different name.

Nexus

[16]     I find that the claimant has satisfied the panel that he meets one of the five grounds set out in the Convention Refugee definition by meeting the criterion of being a member of a particular social group, more specifically as a transsexual male with intent to transition into a transgender man.

Well-Founded Fear

[17]     I find that the claimant has established that he has a well-founded fear of persecution.

[18]     Country conditions from the National Documentation Package demonstrate that Mexico is taking some positive steps with respect to public tolerance of lesbian, gay, bisexual, transgender or questioning (LBBTQ) individuals.²

[19]     However, according to a report by the transgender law centre in Cornell University Law School lesbian, gay, bisexual, and transgender (LGBT) clinic, it is noted that “it is important for adjudicators to be aware that sexual orientation and gender identity are distinct components of identity”.³

Gender identity describes “each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body… and other expressions of gender, including dress, speech and mannerisms.” Sexual orientation, on the other hand, is “each person’s capacity for… sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.” Transgender women are as diverse in their sexual orientations as non-transgender women. They may identify as straight, lesbian, bisexual, queer, or any other sexual orientation. When asylum decisions refer to transgender women as gay men with female sexual identities, it is important to be aware that this may be an inaccurate and therefore disrespectful way of describing the individual’s gender identity. This inaccuracy can have serious and harmful consequences as it may contribute to misunderstandings regarding the deadly dangerous country conditions for transgender women in Mexico, as described below.⁴

[20]     As well, the same report’s Executive Summary states that despite the legal changes for same-sex couples in recent years, transgender women in Mexico still face pervasive persecution based on their identity gender identity and expression. It notes the following:

Indeed, violence against LGBT people has actually increased, with transgender women bearing the brunt of this escalation. Changes in the laws have made the LGBT communities more visible to the public and more vulnerable to homophobic and transphobic violence. Increased visibility has actually increased public misperceptions and false stereotypes about the gay and transgender communities. This has produced fears about these communities, such as that being gay or transgender is “contagious” or that all transgender individuals are HIV positive. These fears have in turn led to hate crimes and murders of LGBT people, particularly women. rans–women continue to face beatings, rape, police harassment, torture and murder in Mexico.⁵

[21]     It is reasonable to conclude from a review of the country conditions that while there has been some improvement in terms of attitudes towards LGBTQ issues, there is still a long way to go, particularly for persons with the claimant’s profile.

[22]     The claimant is still quite young. He encountered negative attitudes and even some discrimination while he was living in Mexico and while he was commencing his transition. Since coming to Canada he wears his hair very short, has changed his name, wears a “binder” to hide his female breasts and has inquired into having surgery to complete the transition. It is clear to the panel that the claimant is sincere in his desire to transition. I find that the country conditions demonstrate that the claimant would face a serious possibility of persecution if he were to return to Mexico and continue with the transition that he has begun. Notably, this is not a situation where the claimant would be specifically targeted by his family if he returned; in fact, he quite frankly stated that his family which includes his grandmother and even his father to a certain extent, have expressed support for the claimant’s gender transition.

[23]     I therefore find that the claimant would have a forward-facing serious possibility of persecution if he were to return to Mexico as a transgendered woman.

STATE PROTECTION

[24]     States are presumed to be capable of protecting their citizens, except in situations where the state is in a state of complete breakdown. To rebut the presumption of state protection, a claimant must provide “clear and convincing” evidence that state protection is inadequate. I find that the claimant has done so in this case.

[25]     The report referred to earlier from the Cornell University Law School states the following as it pertains to protections in Mexico for Transgender people:

As described earlier, transgender women have limited formal legal protections in Mexico against discrimination and hate crimes. Only Mexico City has an antidiscrimination law that explicitly protects against gender identity discrimination. Other protections that exist exclusively in Mexico City include name changes, legal recognition of gender changes, and specialized healthcare for transgender people. Transgender women continue to experience pervasive discrimination in public and in their private lives. Even a representative of CONAPRED stated that “tolerance towards groups such as homosexuals is still ‘practically the same’ even after the State [Mexico] recognized their rights.” The 2013 U.S. State Department Human Rights Report on Mexico stated that “discrimination based on sexual orientation and gender identity was prevalent[.]” It also noted that “the government did not always investigate and punish those complicit in abuses.” Transgender women often do not report hate crimes or police abuse because the authorities rarely investigate these crimes. When the police do get involved, they frequently minimize the crime and mischaracterize it. For example, in violent murder cases the police usually determine that the cases are “crimes of passion” instead of hate crimes. Holding police and military abusers accountable is also difficult. The process for punishing the police and military is “extremely slow and inadequate.” Transgender women avoid reporting police abuse out of fear of police retaliation against them or their family members. Further, human rights commissions tend to be anti-LGBT and will often disregard complaints by transgender women. Transgender women cannot depend on inadequate and ineffective laws penalizing hate crimes to protect their rights.

[26]     The same report referred to above also references a case of a transgender woman fleeing persecution and torture. The report finds that the court’s decision to grant asylum to the transgender woman was explicit in acknowledging that laws recognizing same-sex marriage do little to protect a transgender woman from discrimination, harassment and violent attacks in daily life in Mexico.⁶

[27]     I find based on the objective evidence referred to above demonstrates inadequate protection to transgendered persons and therefore rebuts the presumption of state protection

Internal Flight Alternative (IFA)

[28]     For an IFA to be exist, the panel must be satisfied on a balance of probabilities that (1) the claimant would not face a serious possibility of persecution in that location and (2) that conditions in that location are such that it would be objectively reasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there.

[29]     Given the panel’s previous analysis of the objective evidence, which indicates that the problems faced by those in the claimant’s situation are widespread and tied to pervasive negative societal attitudes about the claimant’s particular social group, I find that the claimant would face a serious possibility of persecution throughout Mexico. Therefore, I find that an IFA does not exist for the claimant.

CONCLUSION

[30]     Based on these considerations I conclude that the claimant is a Convention refugee and I accept his claim.

(signed) “Bonita Small”

¹  Immigration and Refugee Protection Act, S.C. 2001, c. 27.

² Exhibit 3, National Documentation Package, Mexico, 30 August 2019, tab 2.1: Mexico. Country Reports on Human Rights Practices for 2018. United States. Department of State. 13 March 2019.

³ Exhibit 3, National Documentation Package, Mexico, 30 August 2019, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016, at p. 7.

⁴ Exhibit 3, National Documentation Package, Mexico, 30 August 2019, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016, at p. 7.

⁵ Exhibit 3, National Documentation Package, Mexico, 30 August 2019, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016, at p. 5.

⁶ Exhibit 3, National Documentation Package, Mexico, 30 August 2019, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016, at p. 7.

Citation: 2020 RLLR 165
Tribunal: Refugee Protection Division
Date of Decision: September 17, 2020
Panel: Elise Escaravage
Counsel for the Claimant(s): Robert J Hughes
Country: Mexico
RPD Number: VB9-07141
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000191-000194

DECISION

[1]       MEMBER: These are the reasons for the decision in the claim of XXXX XXXX XXXX XXXX XXXX XXXXakaXXXX XXXX or the claimant, a citizen of Mexico who is claiming refugee protection pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act the IRPA.

[2]       In rendering my reasons, I have considered and applied the Chairpersons Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution as well as the Chairperson’s Guideline 9 proceedings before the IRB involving SOGIE throughout the hearing and in my decision.

[3]       This claim was heard as part of the remote hearing pilot project via video conference on a secured platform called Microsoft Teams. Ali of the parties present, the claimant, the interpreter, counsel, and myself confirmed that we were alone in our respective location and that we could see and hear the parties clearly.

Allegations

[4]       The claimant detailed her allegations in her basis of claim form which can be summarized as follows. The claimant alleges fear of persecution at the hands of state authorities in Mexico on account of her membership in a particular social group as a transgender woman.

Decision

[5]       I find that the claimant is a Convention refugee pursuant to Section 96 of the IRPA as she has established facing a serious possibility of persecution on account of her gender identity as a transgender woman if she returns to Mexico.

ANALYSIS

Identity

[6]       I find that the claimant’s identity as a national of Mexico has been established by her testimony and the supporting documents provided. Notably a certified copy of her passport at Exhibit 1.

Credibility

[7]       I find the claimant to be a credible witness and therefore believe what she alleged in support of her claim. She testified in a straightforward manner and there were no relevant inconsistencies in her testimony or contradictions between her testimony and the other evidence before me. She did not embellish or exaggerate her claim and was forthcoming when answering my questions even if it did not benefit her claim. She admitted for example that she had not been victim of persecution herself as a transgender woman so she could only speak to what she had learned on the media about the treatment of other transgender women in Mexico. Moreover, I find that the series of photographs she submitted along with support letters and a medical report from her doctor in Canada to corroborate her allegations.

Well-Founded Fear of Persecution

[8]       The claimant testified that she did not feel as a boy for as long as she can remember. At the age of XXXX she was sent away to Tampico, Tamaulipas to go to school. She believes that her parents sent her three hours away from home because they did not agree of her feminine ways and different behavior. To this day her family still refuses to acknowledge her gender, her mother continues to refer to her as him or he and uses her name as at birth XXXX. The claimant has suffered significant hardship throughout her life, including bullying, intimidation, sexual abuse as a child and discrimination in the workplace as an adult. She began her journey to transition at the end of 2018, she was working at the time as an XXXXat XXXX, external to XXXX in Monterrey, Nuevo León. When her boss received her doctor’s note explaining her leave of absence, he spread the news around the company about her gender transition. The claimant suffered severe repercussions, including bullying and intimidation by co-workers and her boss for transitioning to become her real self. Although the claimant started to use the pronouns, she/her only three months ago after starting hormonal treatments in Canada, she has always felt as a woman. The claimant fears to be humiliated, discriminated against, assaulted, or even killed if she return to Mexico as a transgender woman.

[9]       According to the objective evidence that counsel submitted at Exhibit 4, Mexico is said to be the deadliest country in the world after Brazil for transgender persons. Perpetrators of violence, torture, and murder of transgender persons in Mexico benefit from great impunity as most murders go unsolved and are unpunished. As corroborated in the Human Rights Watch report Item 2.3 of the NDP and the SOGIE compilation Item 6.1, the agents of persecution include state authorities and the judiciary system that uses vague legislations to incriminate transgender persons. Transgender women in particular are painted as-, by politicians and policymakers as paedophiles or as a danger to public order. In sum, the objective evidence overwhelmingly points to systemic persecution against transgender persons in Mexico, particularly transgender women which manifests itself in ail spears of society and is perpetrated with impunity by civilians, state authorities, political figures who incentivize hate against transgender persons and members of the judiciary system who manipulate the law to incriminate them. For these reasons I find that the claimant has established an objectively well-founded fear of persecution if she returns to Mexico.

State Protection

[10]     I find that it would be objectively unreasonable for the claimant to seek the protection of the State in this particular case. There is ample objective evidence painting to state authorities, politicians, and policymakers as well as judges and members of the judiciary system as being part of the agent of persecution who persecute, incriminate, torture, and kill transgender persons in Mexico. As such I find that there is clear and convincing evidence that the State is part of the agents of persecution along with civilians who benefit from great impunity. It would not be reasonably forthcoming for the claimant to seek state protection where the State is the agent of persecution. For this reason, I find that the presumption of adequate state protection has been rebutted.

Internal Flight Alternative or IFA

[11]     I have examined whether a viable IFA exists for the claimant. As mentioned above, I find that the State is part of the agents of persecution in this case. The State has effective control throughout the country and there have been accounts of judges using their legislation to incriminate transgender persons as indicated at Item 6.1 of the NDP. As the IFA test fails on the first prong of the test, I find that there is no viable IFA available to the claimant. Consequently, I find that the claimant faces a serious possibility of persecution throughout Mexico.

CONCLUSION

[12]     In light of the proceeding, I conclude that the claimant is a Convention refugee pursuant to Section 96 of the IRPA; accordingly, I accept her claim.

———- REASONS CONCLUDED ———-

Citation: 2020 RLLR 153
Tribunal: Refugee Protection Division
Date of Decision: March 11, 2020
Panel: Roslyn Ahara
Counsel for the Claimant(s): Sheau Lih Vong
Country: Mexico
RPD Number: TB7-23117
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000095-000104

REASONS FOR DECISION

[1]       XXXX(a.k.a. XXXX) XXXX XXXX (the claimant), who is a citizen of Mexico, is seeking refugee protection, pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).¹

ALLEGATIONS

[2]       The claimant’s allegations are set out fully in her amended Basis of Claim Form (BOC).² The claimant fears persecution from her family and society generally as a result of her sexual orientation and gender identity. The claimant alleges that she has been verbally, emotionally, and sexually abused by members of her family, and others, during her adolescence and adulthood, in both Mexico and United States (US). The claimant also alleges that she suffered discrimination and violence due to her sexual orientation and gender identity. She further fears harm at the hands of her older brother, who is a violent criminal.

DETERMINATION

[3]       The panel finds that the claimant would face a serious possibility of persecution on a Convention ground upon return to Mexico.

ISSUES

Nexus

[4]       The claimant alleges that the persecution she faces is due to her membership in a particular social group in Mexico, namely transgender women. The panel accepts that gender identity is a particular social group and has, therefore, assessed this claim against section 96 of the IRPA.

Identity

[5]       The claimant’s identity as a citizen of Mexico is established, on a balance of probabilities, as per her passport.³

Credibility

[6]       In considering credibility, the panel is aware of the difficulties that may be faced by the claimant in establishing a claim, namely, the setting of the hearing room, and the stress inherent in responding to questions. The panel has also considered the contents of the medical report.

[7]       Most importantly the panel has considered and applied Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE Guidelines),⁴ and in this regard it has carefully examined the claimant’s oral testimony in line with the factors to be considered when applying this guideline. The panel examined the challenges faced by this particular claimant.

[8]       Although the claimant was not deemed to be a vulnerable person in the absence of medical evidence, the panel made accommodations. Counsel questioned the claimant, and the panel stressed to the claimant that whatever breaks were required, would be granted. In fact, this did occur when the claimant’s demeanour was such that two breaks were immediately suggested by the panel.

[9]       The panel considered the factors of mistrust or fear of repercussion by state and non-state actors. More importantly, the panel accepts that the claimant was reluctant to discuss her change in gender identity and therefore, this late information, is not called into question as per the panel’s analysis below.

[10]     The panel was also cognizant of the claimant’s XXXX health issues, adding to the marginalization factor. The claimant’s history of social isolation, mistreatment, and lack of social support and XXXX XXXX XXXX XXXX XXXX were considered in terms of the manner in which the claimant testified. The Clinical XXXX Health Assessment submitted was considered; in particular the XXXXof XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and the significant impact on the claimant’s experience of emotional and physical violence as a result of her gender identity.⁵

[11]     Since submitting her initial BOC, the claimant has provided new documentation in which she indicates that she has begun identifying openly as a woman.⁶ She asked that the panel consider her name to be XXXX, and refer to her by the pronouns she and her. The details of why her initial BOC did not reflect this information are described in detail, but in essence, the claimant has had difficulty in expressing her true feelings to counsel until she met with her current counsel in preparation for her hearing. The panel has provided more specific detail in this regard, relating to the SOGIE Guidelines.

[12]     The claimant testified that she could not come forward in terms of her gender identity in the US, as she was undocumented and had no support. Even in Canada, according to the claimant, she had trust issues. As enunciated above, the panel accepted the fact that initially the claimant did not disclose her gender identity until the late disclosure with new counsel. She testified that she has considered herself a woman for the past twelve years and has changed her name on Facebook to XXXX.⁷

[13]     She further testified as to why she had re-availed, and as stated above, the panel accepts this as not being determinative of the claim, as there were serious family issues at this time.

[14]     She further testified with respect to her reluctance to divulge her female identity with most individuals. More importantly, she explained why she had not taken any steps to express her female identity in the US, due to her lack of documentation and her lack of family support at the time; her father now knows. She elaborated on this that even in Canada, there are trust issues, along with lack of support.

[15]     Although delay and re-availment were identified at the hearing along with other issues, in keeping with the SOGIE Guidelines, the panel does not find that these issues detract from the claimant’s credibility. In totality, the panel was satisfied that the claimant’s testimony was credible and that she has identified as a female for 12 years. The panel accepts that the claimant is a transgender woman and that she has a subjective fear of persecution in Mexico.

[16]     Moreover, her testimony was corroborated by copious amounts of corroborative evidence, including the late disclosures, anticipating a resumption. These late disclosures included:

• A letter from her friend, SS.
• A copy of her Facebook page in which her name is indicated as XXXX XXXX, not XXXX.
• A certificate from a XXXX Health Counsellor.⁸
• The claimant’s BOC has been amended to reflect her gender identity. This evidence was preceded by letters from former partners, photographs, a letter from 519, BOC amendments, a letter corroborating her relationship with XXXX in the U.S, a legal opinion to apply for asylum in the U.S., photographs, and a clinical report indicating that the claimant suffers from XXXX XXXX XXXX XXXX XXXX.⁹
• A letter from the Toronto Western Family Health Team dated XXXX XXXX XXXX 2020, indicating a referral to the Gender Identity Clinic.¹⁰

[17]     The panel acknowledges that much of the above disclosures were submitted on the day of the hearing, in fact, during lunch prior to the afternoon hearing. However, the panel had the opportunity to analyze the claimant’s testimony, in conjunction with further study of this new evidence, coupled with the objective evidence before rendering its decision.

[18]     The panel received a motion for recusal subsequent to the hearing,¹¹ which was refused. The panel notes that there was some confusion caused by the late disclosure, and by the panel having received materials at the last minute. However, as noted above, the panel has had the opportunity to consider all the disclosure carefully after the hearing in accordance with the SOGIE Guidelines. For these reasons, the panel finds that a reasonable, fully-informed person, thinking the matter through, would conclude that it is more likely than not that the decision­ maker in this case would act fairly in the circumstances.

Objective basis

[19]     Transgender women in Mexico still face pervasive persecution based on their identity gender identity and expression. It notes the following:

Indeed, violence against LGBT people has actually increased, with transgender women bearing the brunt of this escalation. Changes in the laws have made the LGBT communities more visible to the public and more vulnerable to homophobic and transphobic violence. Increased visibility has actually increased public misperceptions and false stereotypes about the gay and transgender communities. This has produced fears about these communities, such as that being gay or transgender is “contagious” or that all transgender individuals are HIV positive. These fears have in turn led to hate crimes and murders of LGBT people, particularly women.

[…]

Transgender women continue to face beatings, rape, police harassment, torture and murder in Mexico.¹²

[20]     It is reasonable to conclude from a review of the country conditions that while there has been some improvement in terms of attitudes towards LGBTQ issues, there is still a long way to go, particularly for persons with the claimant’s profile.

[21]     While unprecedented political and legal gains have been made in Mexico, the social environment in most of Mexico remains repressive, and often dangerous. Machista ideals of manly appearance and behavior contribute to extreme prejudices against sexual minorities, and often to violence against them.

[22]     Moreover, as the claimant testified, she is fearful of the police. This is also supported in the documentary evidence. In this regard, the panel has considered the personal circumstances of this claimant which includes her age and health status, along with her history which is well­ documented. The panel further accepts that in the particular circumstances of this claimant, it may be unreasonable for her to approach the state for protection, keeping in mind that the state protection must be adequate at the operational level.

[23]     Furthermore, issues such as employment, secure housing, access to medical treatment as well as treatment related to the transition process must be considered, along with mental health issues and equal access to social services:

Vulnerable communities, including transgender women, are often victims of drug cartel and gang violence. Transgender women fall victim to cartel kidnappings, extortions, and human trafficking. One transgender woman described how cartel members forced her into sex work in Merida. Another transgender woman was targeted for rape and robbery while traveling by bus. In another case, a transgender woman named Joahana in Cancun was tortured to death by drug traffickers who carved a letter “Z” for the Zeta cartel into her body. If a cartel targets a transgender woman, it is nearly impossible to escape the cartel’s power. An immigration attorney in the U.S. described in an interview how his transgender female client unknowingly dated a cartel member. After doing so, she could not escape persecution from the cartel.¹³

[24]     A recent Response to Information Request further notes that:

Amnesty International (AI) indicates that enforced disappearances, including those committed by state and non-state actors, are “widespread” …

[…]

The U.S. Country Reports 2016 indicates that the investigation, prosecution and sentencing for disappearance-related crimes “remained rare”… AI characterizes the investigation of disappearances as “flawed and unduly delayed,” with authorities failing to immediately search for victims… ¹⁴ [footnotes omitted]

[25]     The documentation indicates that antidiscrimination laws do not prohibit discrimination on the basis of gender identity. The lack of protection leaves transgender women especially vulnerable to employment discrimination. Transgender women, in Mexico often lack access to gender health care and are generally denied the ability to change their name and/or gender on ID documents to match their gender presentation. It is indicated that:

It should be noted that transgender people cannot simply “hide” who they are and thereby escape persecution by living in accordance with their birth-assigned gender role. Gender dysphoria is a serious condition, recognized by every major medical association, the only treatment for which is to live in accordance with the gender with which they identify, rather than the gender assigned at birth. Attempting to suppress one’s gender identity can have dire health consequences. Moreover, a person’s gender identity is a fundamental component of identity, which cannot be required to be changed or hidden as a condition of protection under asylum laws.

As noted, only Mexico City permits transgender people to legally change their name and gender to correspond to their gender identity. Even where such mechanisms are technically available, however, legal name changes are not accessible in practice for many transgender women. This is in part due to “lengthy delays and high costs-at least six months and approximately 70,000 pesos… are required, and completion sometimes depend[s] on the ‘good will’ of some civil servants.”…

[…]

Transgender women lack adequate health care in Mexico. Many transgender women resist seeking medical help because they must disclose their transgender status and subsequently face hostility and threats of violence from medical providers. Medical care providers often do not want to provide medical attention to transgender patients. Providers have mocked and humiliated transgender patients using offensive language, threats, aggression, and hostility. Consequently, transgender women do not routinely access preventive or emergency care.

In particular, medical care to support gender transition-such as hormones or surgeries-is almost entirely unavailable to most transgender women in Mexico. While medical authorities uniformly recognize the medical necessity of transition related treatment, such care is not covered under Mexico’s national health plan and licensed providers (for those who can afford to pay out of pocket) are scarce. Even where it is available, such care can be prohibitively expensive for transgender women already suffering the effects of economic marginalization discussed earlier. Without access to gender-affirming medical care, many transgender women permanently damage their skin and muscles by injecting dangerous black-market feminizing liquid silicone or other fillers.¹⁵

[26]     Further documentation notes that:

The May 2016 report of the Cornell Law School LGBT Clinic and the Transgender Law Center also specifies that there are “no federal laws that explicitly protect transgender individuals from discrimination on the basis of their gender identity (i.e., their transgender status) as opposed to sexual orientation”…

[…]

In a short overview of, among others, hate crime legislation in different countries, the same report indicates, however, that in Mexico there is no such legislation. The report, in contradiction to the above cited explanation, states that the federal law neither criminalises hate speech nor hate crimes. The report in this context mentions article 149 Ter of the Federal Criminal Code of Mexico which refers to discrimination…

[…]

In its query response about the situation and treatment of sexual minorities, particularly in Mexico City, Cancun, Guadalajara, and Acapulco of August 2015, the Immigration and Refugee Board of Canada (IRB) writes:

“A report on crimes against transgendered women sent to the Research Directorate by a representative at the Support Centre for Transgender Identities… , an NGO that advocates for the rights of transgendered women in Mexico… , indicates that transgendered women are discriminated against by the police and judicial authorities … The representative from Colectivo León Gay, A.C. indicated that LGBT persons are [translation] ‘frequently’ harassed and arbitrarily detained due to their physical appearance, the way they dress, or for expressing affection in public… The representative also indicated that they are barred from assembling in public because they are seen as ‘engaging in prostitution or giving a ‘bad example’ or ‘bad image’ to society’ … ¹⁶ [footnotes omitted]

[27]     In light of the cited documentary evidence regarding similarly situated persons in Mexico who did not receive adequate state protection, there is sufficient evidence before this panel to conclude that, despite efforts made by the state, at this time, the state is not able to offer adequate protection to transgender individuals like the claimant. Accordingly, the panel finds that there exists clear and convincing proof that state protection is not available to transgender individuals like the claimant in Mexico. The panel, therefore, finds that the claimant has rebutted the presumption of state protection and has established that her fear is objectively well-founded since the harm she fears cumulatively amounts to persecution.

[28]     With respect to an internal flight alternative (IFA), it is clear from the documentary evidence that societal prejudices against transgender persons are found all over Mexico, including Mexico City. There is blatant disregard for the safety as well as the wellbeing of transgender individuals like the claimant. Homicides and assaults against these groups continue under a backdrop of religious and cultural tolerance and moral condemnation. Based on the evidence adduced, the panel finds that there is no viable IFA for transsexual/transgender persons in Mexico City, or for that matter any part of Mexico.

[29]     Based on the totality of the evidence adduced, the panel finds that there is a serious possibility, based on her evidence, that she would be persecuted due to her gender identity should she return to Mexico.

CONCLUSION

[30]     Accordingly, the panel accepts the claimant as a Convention refugee.

(signed) Roslyn Ahara

March 11, 2020          

¹ The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).

² Exhibit 2, Basis of Claim Form (BOC).

³ Exhibit 1, Package of Information from the Referring CBSA/CIC, Certified True Copy of Passport.

⁴ Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(l)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.

⁵ Exhibit 4, Personal Disclosure #1, at pp. 28-34.

⁶ Ibid., BOC Addendum.

⁷ Exhibit 6, Personal Disclosure #3, at pp. 3-5.

⁸ Ibid., at pp. 1-6.

⁹ Exhibit 4, Personal Disclosure #1.

¹⁰ Exhibit 8, Personal Disclosure #4, at p. 1.

¹¹ Exhibit 7, Recusal Application.

¹² Exhibit 3, National Documentation Package (NDP) for Mexico (August 30, 2019), item 6.3.

¹³ Ibid.

¹⁴ Ibid., item 7.18.

¹⁵ Ibid., item 6.3.

¹⁶ Ibid., item 6.1.

Citation: 2020 RLLR 151
Tribunal: Refugee Protection Division
Date of Decision: February 5, 2020
Panel: Krystle Alarcon
Counsel for the Claimant(s): (no information available)
Country: Mexico
RPD Number: MB9-12276
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000083-000089

[1]       This is deci… the decision for XXXX XXXX XXXX. I would like to note that the claimant’s identity documents indicate that she is male and the name on the passport submitted as evidence is “XXXX XXXX XXXX”. The claimant is now transitioning to a woman and therefore identifies as a woman and would now like to be addressed as XXXX, though she has not gone through any formal name changes yet. The claimant’s file number is MB9-12276. At the hearing, and in rendering this decision, I have considered and applied both the Chairperson’s guidelines four, women refugee claimants fearing gender-related persecution, and Chairperson’s guidelines nine, proceedings before the IRB involving sexual orientation and gender identity and expression. I have considered your testimony and the other evidence in the case, and I am ready to render my decision orally. I would like to add that when written reasons are issued, they may be edited for spelling, syntax, and grammar. You are a citizen of Mexico and you are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

DETERMINATION

[2]       I find that you are a “Convention refugee” based on your gender as a transgender woman.

ALLEGATIONS

[3]       You allege the following. In your… In your original Basis of Claim form, or your… or your BOC, you stated that you fear serious harm or death at the hands of cartels, because at least three of your family members have been kidnapped for ransom in Mexico, as you hail from a well-to-do family. In your amended Basis of Claim form, you stated that you have now come out as a woman and that you fear returning to Mexico with your new identity as a woman, because of the horrible discrimination that the LGBTQ+ people face.

ANALYSIS

IDENTITY

[4]       Your personal identity and nationality as a citizen of Mexico has been established on a balance of probabilities by a certified true copy of your valid Mexican passport.

CREDIBILITY

[5]       I find you to be generally credible Madam. You testified in a straightforward, open and detailed manner. For example, you described how since you were eight years old you felt like you were in the wrong body. That you enjoyed playing with dolls and other girls, and at first you thought you were gay, but then you realized that you were jealous of other girls because you wanted to be born a girl. You provided a compelling testimony about how you came out to your mother recently, and she didn’t accept that you wanted to transition. You said that she called you repetitively since then, and talked to you for hours trying to change your mind. You said that she told you that no matter what, you would always be her son. I also note that you asked me not to tell your father about your transition as he initially was supposed to testify as a witness regarding the targeting of your relatives by cartels in Mexico. You said that you haven’t spoken to him yet about your transition and you fear his reaction if he finds out today about it. You also went into significant detail about how it hurts you when people address you as “Sir” or “Monsieur”. You gave the example about how earlier today you approached a stranger for help with something, and this person referred to you immediately as “Sir”. You testify that you accept that no matter what you will never be fully accepted by society, excuse me, society, even if you don’t wear makeup or dress like a woman. You also went into detail about how you sought support from an organisation in Montreal called Action Santé Transves … Transvestite and Transsexuel du Québec, who have whole heartedly encouraged you to go through hormone therapy and to come to terms with your gender identity. I would also like to note that indeed, today, in front of me, you are dressed as a woman, in a squirt, and you are wearing makeup.

[6]       There were no significant inconsistencies, omissions or incompatible behaviours that were not reasonably explained. Of course, I would like to address why you omitted from your first Basis of Claim form that you identify as a woman. Your initial Basis of Claim form was signed on XXXX XXXX XXXX 2019, and you testified that you have only started hormone therapy in XXXX 2019, which is corroborated by your doctor’s note labelled P-2. You said that you were initially even afraid of talking about your transition to your lawyer, worried that she might not want to retain you and represent you as a transgender woman. Given that indeed you submitted an amendment signed on XXXX XXXX XXXX 2019, which is shortly after you started the medical transition, we do not draw a negative inference in regards… I do not draw a negative inference in regards to your credibility for this omission, as it is reasonable that you only included it in your narrative after you actually started the treatment.

[7]       I also asked you about your failure to claim refuge in the U.S.A. Given that you knew at a young age that you wanted to become a woman and that Mexicans are hostile towards transgender women, you said that you only transitioned recently, so your fear of Mexican society at large has become real and apparent only now. You said that you started your transition in XXXX 2019, as noted earlier, and given that indeed you only commenced XXXX recently, and given that you had a valid Visitor Visa until XXXX 2022 according to your U.S. Visa in your expired Mexican passport, labelled document seven, I find your explanation reasonable and I do not find your failure to apply for asylum in the U.S.A. to be incompatible behaviour with someone fleeing persecution.

[8]       In support of your claim, you provided the following documents. A letter from the non­ profit that you approach to support you, labelled P-2. A letter from your doctor regarding your hormone therapy, which was noted earlier, labelled P-3. And, documents from your pharmacist regarding the drugs you are taking, labelled P-4. I therefore find the following to be credible. You sought the help of a non-profit that supports transgender people in XXXX 2019. You started hormone treatment in XXXX 2019, and that you identify as a woman and you want to be called XXXX from now on and addressed with the pronouns associated with women, such as “she” and “her”

NEXUS

[9]       I find that there is a nexus with your fear and one of the five Convention grounds, which is gender. Therefore, your claim is assessed under Section 96 of the Immigration and Refugee Protection Act.

PERSECUTION

[10]     The objective documentation supports your allegations that individuals in your circumstance face persecution or death in Mexico. According to the Transgender Law Center of Cornell Law School LGBT Clinic, in tab 6.3 of the National Documentation Package, transgender women regularly experience harassment and hate crimes at the hands of members of the public. The following are only a few examples of the many atrocities that transgender women have experienced in Mexico. A prosecutor in Chihuahua belittled a transgender woman who sought redress for abuse and violence she experienced, asking her “So, why are you not… So, why are you walking in the streets?” In November 2011, in Chihuahua, a group of men kidnapped two transgender women in Hotel Carmen. Days later, the dismembered bodies of these women were found in a van. In June 2012 in Mexico City, the body of a transgender woman was dismembered. Her remains were found abandoned in different neighbourhoods in the Bonito Juares District. In June 2013, a police found the body of a transgender woman who headed a special unit for attention to members of the lesbian, gay, bisexual, transsexual, transgender, transsexual, and intersex community of the Attorney General of the Federal District. In July 2013, two attackers released pepper spray into a crowd of 500 at a beauty contest for transgender women.

[11]       Mexico has the second highest index of crimes motivated by transphobia behind Brazil. Reports of hate crimes, particularly transpho … transphobic murders, continue to rise including in Mexico City. Most hate crimes against the LGBT community go uninvestigated. In many instances, police dismiss investigations of homophobic and transphobic murders by cate… categorizing them as “crimes of passion”. Indeed, it is estimated that almost 90% ofc rimes in Mexico go unreported. It follows then, that the actual number of transphobic murders in Mexico are likely much higher. Research conducted by the Immigration and Refugee Board of Canada in 2019, at tab 6.2, reiterates this, that transgender individuals are regularly victims of violent hate crimes that often end in murder. It cites research that indicates the 66% of transgender women, 41% of transgender men, and 41% of intersex people who responded to the survey on LGBTQ+ discrimination regarding the rights to safety and to justice declare they were victims of physical assault. A Trans-respect Versus Transphobia Worldwide Project reported that in 2008 four transgender people were murdered in Mexico, while in 2017 the number was 65.

[12]     Tab 6.3 also states that transgender people have limited access to healthcare. A representative of Fundación Trans Amor stated that there are very few cases in which a transgender person who has been denied healthcare has managed to carry out the applicable protocols such as successfully requesting a consultation with an Endocrinologist, a laboratory analysis, or obtaining a hormonal assessment, without proprieting … without providing further details. Sources reported cases of transgender and non-binary people having to stop hormonal treatment against their will or being denied access to gender confirmation medical treatment. The same document also states that transgender people also face a lot of discrimination in the workplace in Mexico. According to the Alliance for Diversity and Inclusion in the Workplace, transgender and non-binary people are less on average than lesbians, gay men, and bisexuals. According to another non-profit, 25% of transgender women respondents engage in sex work. The same source states… The same so… The same source, being the Executive Commission for Care of Victim… of Victims, states that almost all respondents who engaged in sex work were transgender, noting that this may be related to the lack of other employment options by the lack of acceptance. Given all these conditions, the cases of violence and murder of transgender women, the lack of access to medical care, and the lack of employment opportunities that leads transgender women to sex work, I find that the claimant established a subjective fear that is objectively well-founded.

STATE PROTECTION

[13]       I find that adequate State protection would not be available to you were you to seek it in Mexico. The objective documentary evidence in tab 6.4 indicates that police are sometimes complicit themselves in the violence that transgender people and sexual minorities face. The U.N. Special Rapporteur on extraju … extrajudicial or arbitrary executions noted that there is an alarming pattern of grotesque homicide of lesbian, gay, bisexual, and transgender individuals, and the broad impunity for these crimes, sometimes with the suspected complicity of investigative authorities. The Executive Commission of Attention to Victims and the Fundación Arcoiris report found that transwomen and homosexuals represent the group most affected by motivated physical assaults.

[14]       Furthermore, according to the U.S. Country Reports 2016, civil society groups claim police routinely subjected LGBTQ+ people to mistreatment while in custody. Even in Mexico City, where the Zona Rosa gay district is located, police harassment against LGBTQ+ members remains high. In 2016, a Federal Agency that supports those who have been victim of a federal crime or whose human rights have been violated, reported some forms of abuse by authorities, including delays in or refusal to provide services, violence and insults. In light of the objective documentary evidence, I find that you have rebutted the presumption of State protection, and that adequate State protection would not be available to you in Mexico.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[15]       Considering your profile as a trans… as a transgender woman, the documentary evidence of uninvestigated murders of transgender women in Mexico, the rampant discrimination and violence that transgender women face, and the lack of State protection and the complicity of State officials in the violence transgender women go through, I find that it is unsafe for you to lo… to relocate anywhere in Mexico. I therefore find that there is no viable internal flight alternative for you anywhere in Mexico.

CONCLUSION

[16]       Based on the totality of the evidence, I find that the claimant is a “Convention refugee”. Your claim XXXX XXXX XXXX is therefore accepted.