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Clifford Chance
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Reflections on a transgender asylum case

Partner Jessica Springsteen reflects on a recent transgender asylum case which had a profound effect on her.

In 2016, I was a mid-level associate at Clifford Chance. I was deep into my life at the firm, working on complex energy and infrastructure transactions predominantly in Latin America. My ability to speak English and Spanish with native fluency was critical to my ability to work in two cultures and draft and negotiate sophisticated documents written in both languages. I was growing in my career, but part of me felt unfulfilled by the daily grind of conference calls and legal drafting.

I had worked on a few small pro bono matters, including one case where I was appointed guardian ad litem for a young girl living in the Washington, DC area. It was a delicate situation: my client was approximately six years old, and she spent time each week with each of her parents under an alternating custody arrangement. The parents were not getting on well at all, as each believed she or he was entitled to full custody. This was clearly outside my legal comfort zone, but in time, I was able to help the girl’s parents agree on a custody arrangement that gave her access to both parents, and the court added its blessing to the agreed terms.

Shortly afterwards, I was approached by a Clifford Chance colleague in the litigation group who had recently taken up an asylum case involving a transgender woman who had been born in rural Mexico and travelled to the US. She had known about my work in the guardianship case and asked me if I would be interested in helping her. She also knew I was a fluent Spanish speaker, and she needed help simply communicating with Karina, who spoke no English.

Karina had been born male in Mexico but left her country of birth because of unrelenting abuse and prejudice directed toward her (even by her own family) simply because she could not conform to the gender assigned to her at birth. In March of 2014, she fled Mexico and lawfully entered the United States, but stayed in the U.S. past the expiry date of her visa. Under US law, the deadline to apply for asylum is one year after entering the United States. Karina missed this deadline, but based on an exception for “changed circumstances”, sought asylum on the basis that she began transitioning to become a woman after the deadline.

As it happened, I had recently finished reading Becoming Nicole: The Transformation of an American Family by Amy Ellis Nutt, which had radically altered my view of what it means to be a transgender person. The book chronicles a family’s struggle with their son, who from a very early age felt he had been born into a body of the wrong gender. It describes with great tenderness how each family member comes to terms with the fact of the son’s profound feelings about his gender identity and his and his family’s journey to his “becoming Nicole”, a transgender woman.

It was with this recent experience in mind that I agreed to work on Karina’s case. I could never have imagined how profoundly I would be affected by it. Karina is a profile in courage. She came to the US and put her hopes into an asylum system she could not possibly understand. She would leave her family behind and try to make her way with virtually no resources in a country whose language she did not speak. She had no intellectual frame of reference for what she felt about herself. No one in her community could even be openly homosexual, let alone transgender. But she knew in her heart who she wanted to become and where she needed to live in order to do that.

Under US law, to qualify for asylum, an applicant must establish that she is a “refugee”, meaning she is unable or unwilling to return to her country of nationality either because: (1) she was persecuted in the past; or (2) she has a well-founded fear of future persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.”

In presenting Karina’s case, we laid out the history of Karina’s life and experience in Mexico so as to establish her feelings, from a young age, of not fitting the normal gender stereotype of a male, of her persecution over a protracted period of time and, finally, of her decision to leave Mexico and seek a new home in the US. Once in the US, it was important for us to prove that her decision to transition to being a woman met the standard of “changed circumstances” to be entitled to seek asylum. Despite the many twists and turns in Karina’s case over six long years, on 23 May 2022, Karina was granted asylum by a federal immigration judge. The ruling grants her the right to live permanently and lawfully in the US. That night, for perhaps the first time in Karina’s adult life, she slept soundly and without fear of what tomorrow would bring.

I would like to think that our team’s skill and preparation made the difference in her case, but it’s not that simple. Karina was one of the lucky ones. For many others, the immigration system is equally likely to deny asylum requests under very similar circumstances, due to the predilections of individual judges. Moreover, the system is so overwhelmed with cases that it’s rare for someone like Karina to have such a skilled team in her corner.

I am grateful to so many people I have worked with on this journey. First, to Karina herself, who showed me what real courage was. Next, to my incredible colleagues at Clifford Chance: Colette Carman, Mary Elizabeth Bultemeier, Rob Price, Eva Kurban and, especially, Rebecca Hekman (a Clifford Chance alum) with whom I spent countless hours preparing Karina’s case. And, finally, to the lawyers at Immigration Equality, whose counsel about the intricacies of the US immigration law has been invaluable.