Federal court overturns American transgender woman's persecution-based refugee claim

Canada's Federal Court has overturned a decision granting refugee status to an American transgender woman who successfully argued that a combination of gun culture and rising transphobia left her at risk of persecution in the United States.

In a decision released this week, Judge Christine Pallottasaid the Refugee Appeal Division erred in finding Colorado authorities were incapable of protecting Daria Bloodworth from a roommate she accused ofstalking her and that her safety couldn't be guaranteed elsewhere in the U.S.

Bloodworth who now lives in Whitehorse saysshe plans to appeal the ruling to the Federal Court of Appeal in the hopes of reinstating theOctober 2022 decision affirming her status as a convention refugee.

"It was made pretty clear from the get go that this was going to be an uphill battle winning this thing, or even staying in Canada a little bit longer and not get murdered in the U.S.," Bloodworth told the CBC.

"I was incredibly happy that I won at the [Refugee Appeal Division] level. And it also increased my confidence in winning this case permanently, because I know, based on the evidence that I've submitted that I have a strong case."

'The general climate of anti-trans hatred'

Bloodworth came to Canada in 2019, seeking refugee protection in relation to claims that she was the target of threats and violence from a former roommate, her former landlord and a debt collection agency.

According to court documents, Bloodworth complained to police after her ex-roommate at Colorado State University threatened her with a gun.He was initially charged with menacing, and Bloodworth was given aprotection order.

But the case against the roommate was dismissed a few months later and a judge declined to keep the protection order in place. Bloodworth claimed the ex-roommate continued to stalk her, andsaid police did not respond to her calls for action.

The 36-year-old's initial claim was unsuccessful, but in 2022 Refugee Appeal Division member Dilani Mohan concluded Bloodworth had a legitimate fear of persecution.

While Mohansaid the initial police response appeared reasonable, she faulted the Refugee Protection Division (RPD) where claims are first heard for failing to consider that Bloodworth was denied police protection for her subsequent complaints.

Mohan also surveyed a patchwork of U.S. state laws concerning the right to equal treatmentbefore concluding that relocation within the U.S.was not an option.

She noted high rates of "discrimination and violence" in Maine, New Jersey, Illinois and Nevada and said that while New York City might be an option, the move would throw Bloodworth into poverty which is a risk factor for violence in the U.S. itself.

"The RPDfailed to consider how Colorado's open carry gun laws combined with the general climate of anti-trans hatred growing in the US could make [her]perpetually vulnerable and at risk to her life," Mohan wrote.

"I further find that [she]does not have an [internal flight alternative]in the U.S. because relocation for a person with her profile, in her circumstances, would be unreasonable."

'I honestly feel like this is home'

Bloodworth,who joked that she has become somewhat of a "jailhouse lawyer,"has represented herself at all levels of proceeding to this point. Mohan commended her for doing "an impressive job in corralling evidence to support her claim."

Vancouver immigration lawyer Zool Suleman who is not involved in the case said Bloodworth'sshort-lived victory at the Refugee Appeal Division is noteworthy.

"It is unusual for cases from the United States to be approved as refugee cases in Canada. Generally speaking, the U.S. is not seen a refugee-producing country," he told the CBC.

"In this specific case, clearly the federal court felt that further thought needed to be placed upon the kinds of protections available to the claimant. And we would need to keep an eye on it to see if it is turning into an area of growing persecution claims from the United States."

Mohan notedthe Minister of Citizenship and Immigration didn't intervene in the Refugee Appeal Division proceedings "in any way."

But that changed with the granting of refugee status.

The minister argued in federal court that Mohanhad erred in "imposing a standard of perfect state protection" and by failing to identify "any gap in Colorado's laws, which include state-level laws to protect transgender individuals."

Pallotta agreed, finding that Mohan had failed to assess whether Bloodworth had "demonstrated with clear and convincing evidence that she exhausted the course of action reasonably available to her, without success."

The federal court ruling also says the appeal division failedto determine that internal flight wasimpossible saying that "more than evidence demonstrating hardship and disadvantage" was needed to take New York City off the list.

Bloodworth who is now studying biological sciences at Yukon University said she hopes to stay in Canada, either by convincing the Federal Court of Appeal to overturn Pallota's decision or by making her case for refugee status before a new Refugee Appeal Division tribunal.

"I honestly feel like this is home.I'm not going to say Canada's perfect,but at least since I've moved here I haven't been threatened witha gun or threatened with a knife. I haven't been discriminated against because I'm transgender," she said.

"I feel like I could actually live here if I was allowed to live here."