Lopez Berera v. Holder, Brief of Amici Curiae, United States Court of Appeals for the Ninth Circuit, Lambda Legal and Winston & Strawn LLP (2013)

This Amici Curiae brief, filed by Lambda Legal and Winston & Strawn LLP, concerns a transgender Mexican woman living with HIV who was denied asylum in the United States. Filed in the Ninth Circuit, the brief was supported by organizations including the American Civil Liberties Union, the HIV & AIDS Legal Services Alliance, and the HIV Law Project. Its chief argument is that Ms. Lopez Berera would face a unique form of persecution in Mexico, where violence against people who are perceived to be HIV positive and against transgender women is rampant.

The brief addressed the lower court's erroneous conclusions – namely, "(1) that legislative advancements for gays and lesbians indicated that Ms. Lopez Berera – a transgender woman with HIV/AIDS – no longer faced a likelihood of future persecution; (2) that Ms. Lopez Berera reasonably could relocate in Mexico to avoid persecution . . . and (3) that Ms. Lopez Berera's late asylum application could not be excused despite the changed circumstance of her HIV/AIDS diagnosis." The brief dismantled these findings by first discussing the country conditions in Mexico, a country that even the Ninth Circuit has recognized as unsafe for transgender people with HIV. It cites to the widespread hatred of HIV positive people and transgender individuals in Mexico to explain why it would be unreasonable to assume that Ms. Lopez Berera would be treated better in another part of her home country. Lastly, the brief argues that these additional factors should qualify her situation as a "changed circumstance" that increases the likelihood of getting asylum and excuses the lateness of her application.