Freedom for a Transsexual

A refugee from torture is finally let out of jail

Amanda Duvalle has spent the past month mostly confined to her single room at the drab Mission Hotel, recuperating from surgery to remove a blood clot in her right leg. She can't get around well or work, and passing time in bed gets her down. But Duvalle won't concede defeat after this latest setback. It is nothing compared to what she has already endured in her tumultuous 32 years.

"I remember that it used to be worse," Duvalle says. "When I was depressed in jail, I could only talk to the walls. Now, I have my friends and my freedom."

A native of Nicaragua, Duvalle fled her home country because she was brutalized by authorities there for being a transsexual. She came to the United States, but spent more than a year in jail as the U.S. Immigration and Naturalization Service tried to deport her. Duvalle appealed for the right to stay, arguing that if she was forced to return to Nicaragua she would surely be tortured again.



Torture of a Transsexual
In a landmark case, Amanda DuValle escaped deportation by invoking the U.N. Convention Against Torture. But if she won, why is she still in jail?
Joel P. Engardio
July 7, 1999

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In a landmark decision last July, Duvalle was given permission to remain in the U.S. She became one of the first illegal immigrants to escape deportation by invoking the U.N. Convention Against Torture, as SF Weeklyreported in a July 7 cover story, "Torture of a Transsexual."

But even after winning her case, Duvalle remained imprisoned, as INS officials tried to decide what to do with her. For her own protection, she was kept in an isolation cell for 23 hours a day at Oakland's North County Jail. "I was so nervous," Duvalle says. "I thought they'd keep me in there forever. I was just sitting there saying, 'God, what happened? It's been so long and I'm still here and I already won the case.'"

The INS finally released Duvalle in September. For four months now, she has enjoyed the greatest taste of freedom that she has known in years. Duvalle considers herself lucky. So do her lawyers.

"I thought it would be a very hard and uphill battle to get her out," says attorney Doug Hodder of Morrison & Foerster, one of San Francisco's largest law firms, which handled Duvalle's case pro bono.

Duvalle was not eligible for the more typical asylum process because she committed crimes while living illegally in San Francisco. Her only recourse was to invoke the torture convention, which was newly recognized by the INS and says that no one -- regardless of his deeds, even if violent -- should be subjected to torture or denied refuge from it. The torture convention, however, does not allow applicants to become permanent residents. In fact, although Duvalle was allowed to stay in the U.S., she was given no official status and the INS could have kept her in jail indefinitely.

Hodder managed to convince the INS to release Duvalle because she was not a threat and her past crimes -- larceny and prostitution -- were nonviolent. Besides, she had already served jail time for them.

"[The] INS told us, 'If you guys can provide some sort of rehabilitation and reason we won't have to pick her up for breaking the law again, we'll let her go,'" Hodder says. He found a halfway program for Duvalle that offered counseling and the INS gave her a work permit. The conditions of her release require her to continue a psychotherapy program at Mission Mental Health Services, and check in with INS regularly. Her travel outside the Bay Area is also monitored.

While ostensibly free now to live and work in the U.S., Duvalle will never enjoy the full benefits of a U.S. citizen. Instead, she will occupy a unique role in society. "It's true that torture convention people can be released as long as they are not considered a danger to the public," says INS spokesperson Sharon Rummery. "But they will never be eligible for any kind of status in the U.S. They will never be a lawful permanent resident. They will never be a citizen."

The torture convention's aim is humanitarian, Rummery says, giving people otherwise ineligible for asylum a chance to escape persecution. Work permits are granted to nonviolent aliens so they can sustain themselves in the U.S., she says. But they are not entitled to any other benefits.

"Citizenship is a reward, and the torture convention is not set up to make anyone a citizen," Rummery says. "It is for delivering people from danger who came here illegally, disobeyed our laws, and abused our system. We allow them to stay here and support themselves. But to do any more cheapens the benefit for everyone else who wants to be a citizen and respects the law."

Rummery also points out that if conditions in Nicaragua change, Duvalle might still be sent back. But Hodder says he does not foresee a future deportation. "The INS can open the case at any time, but I do know they are really overworked," he says. "So from a practical standpoint, I don't know why they would bother."

It hasn't been easy in the four months Duvalle has been free. After her release she found housing in the single room occupancy King Hotel, but it burned down only a few weeks after she moved in, leaving her homeless. After some time at the Red Cross shelter, the Tenderloin Housing Clinic found her space at the Mission Hotel on South Van Ness.

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