No one really knows. Kenney says about 250 torture convention applications are already pending, and it appears that Amanda's will be the first one heard by a judge. "No cases have been decided yet, and because this is so new, we want to proceed carefully on our first decision," Kenney says. "We want it to be right."
Waiting for her court hearing in her detention cell, Amanda remembers the first time she wore a dress. She was still Oscar, a young boy in Nicaragua, when a friend let him try on her clothes.
"I was very excited and curious to see what I looked like," Amanda recalls. "But, yuck! I didn't like what I saw. I looked like a boy with a dress on. I didn't see the reflection of a woman, and that made me feel bad. It's like how I feel today. I feel embarrassed and ashamed when I appear as a man. I miss being a woman."
For nearly a year, Amanda has been locked up at the North County Jail in Oakland. Not for any of her crimes -- she's already served her time for those -- but as an INS detainee awaiting resolution to her case. The INS rents space at the jail, because there is not enough room in its own facilities.
Amanda is kept in isolation at North County, away from the general inmate population, for her own safety. She has been denied her hormone treatments. She still feels like a woman, but looking at her, it is not as certain anymore that she is one. She longs for the time when she was pretty.
At 5 a.m., a guard awakens Amanda and leads her out of her cell for breakfast. She walks with her hands cupped over her mouth and nose. Even though she is alone in her cell 23 hours of the day, Amanda is glad mealtimes only last 15 minutes. She doesn't want anyone to see she is growing facial hair. It makes her feel ugly.
When her whiskers become long enough, Amanda tries to remove them on her own. One by one, she grasps each hair with her fingers and yanks it from her face. For hours, she will sit in her cell and pluck her chin and upper lip until the skin is bare. But in a couple of weeks, the stubble returns. "It depresses me," she says. "I try to be as feminine as I can. I just forget what I look like, and think I'm a woman. Inside, I know I am."
As her hearing date gets closer, the visits from her lawyer increase. Amanda is preparing for her day in court, and is anxious about the outcome. She knows her odds are not great. She expresses remorse for her crimes.
"I recognize my mistakes, and to overcome them you have to admit you made them," she says. "I did commit crimes, but I did them to survive. I never meant to hurt anyone; it never crossed my mind. As a human being, I would like the opportunity to correct those mistakes. Everyone only sees the bad side of me, and not the good. Whenever I've asked for help, it was denied. I'm just looking for another chance, and some help."
Amanda knows that even if she wins, she may not win much. Certainly no chance for U.S. citizenship. And her case may never be resolved, with the INS able to review and challenge it an unlimited number of times, making her prove, over and over again, that she will probably be tortured if she is returned to Nicaragua. She knows that even if she wins, she may never get to leave her isolation cell. Because of her past crimes, a favorable ruling would mean indefinite detention.
"Winning will make me happy and sad at the same time," Amanda says. "Jail life is very sad for me, because I'm not treated like a normal person. But I would prefer being in jail, because I don't want to return to my country."
Amanda pauses. She looks around the jail's sterile visiting room, at the guard, her lawyer, a reporter. Her eyes well and she begins to cry.
"I've been thinking a lot. My dream is to be able to yell to the wind, and be free to say, 'I'm a woman now,' " she says. "But I'm afraid of what's going to happen."
As U.S. Immigration Judge Polly Webber presides over a hearing that officially involves Oscar Serrano, she refers to the detainee as Amanda. In the closed session, Judge Webber listens to just under two hours of testimony and cross-examination, and makes her decision from the bench.
She is unsure, but thinks it is the first ruling of its kind. Its implications are unclear; at least for the moment, Amanda will not be sent to Nicaragua, but it is entirely uncertain whether she will ever be released from INS detention, and if she is to gain release, when it might come, and under what legal authority.
In fact, the form on which Judge Webber signs her orders does not yet accommodate the new law. So the judge hand writes her decision:
The Court grants deferral of removal pursuant to the Convention Against Torture.
