Supreme Court hears transgender migrant’s claim of procedural unfairness

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The Supreme Court seemed resistant to the Biden administration arguments Jan. 17 that could lead to the deportation of a transgender illegal alien from Guatemala seeking asylum.

The issue is whether noncitizens have to petition the Board of Immigration Appeals to reconsider its alleged errors before they ask federal courts of appeals for review. Those courts of appeals are split on the issue and “the Supreme Court’s answer could significantly impact noncitizens facing deportation and the immigration courts tasked with hearing their pleas for relief,” according to a SCOTUSblog summary.

The case is Santos-Zacaria v. Garland, court file 21-1436.

The U.S. government tried to deport Leon Santos-Zacaria, 34, a Guatemalan citizen who was born male but identifies as a woman and uses the first name Estrella in everyday life. Santos-Zacaria entered the United States illegally at least twice and was removed to Guatemala in 2008 and 2012. He came back to the United States in 2018 and, after being detained, applied for something called withholding of removal under the Immigration and Nationality Act (INA) and for sanctuary under the Convention Against Torture.

The INA states that an alien unlawfully present in the country may be deported after the U.S. Department of Justice issues a final order of removal, but Congress restricts the deportation destination. An alien may not be removed to a country where his or her “life or freedom would be threatened … because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” LGBT individuals are included in the “particular social group” category.

Individuals who have been previously deported and then reentered the country, or who have failed to seek asylum within one year of arriving in the United States, may not apply for asylum. Those individuals are generally allowed to apply for withholding of removal.

This means that at the end of the adjudication process, an immigration judge signs a deportation order and then advises the government that it may not carry it out. The “removal” of the person is said to be “withheld.” The person may still be removed if the destination country agrees to accept the individual.

At the withholding hearing, Santos-Zacaria told the immigration judge he experienced persecution in Guatemala for being a gay and transgender person. He said he had been raped at age 12 because he was homosexual, ridiculed for behaving like a woman, and threatened with death if he did not move away from the community. He did not report these incidents to authorities because he did not believe they would help him, according to the summary.

In court, he appeared to admit that there may be places in Guatemala where he might be better accepted than in his hometown.

The immigration judge acknowledged the rape but ruled Santos-Zacaria did not suffer past persecution.

On appeal, the Board of Immigration Appeals reversed, accepting that the rape constituted past persecution. But instead of remanding the case to the immigration judge, the board then “embark[ed] on new factfinding of its own, concluding that Santos-Zacaria had not shown she would be persecuted in the future.” The board’s factfinding on the question of the possibility of future persecution was “impermissible,” according to the petition (pdf) filed with the Supreme Court.

At the U.S. Court of Appeals for the 5th Circuit, the government failed to invoke the exhaustion doctrine, which holds that a plaintiff must exhaust all possible administrative remedies before seeking judicial review. Despite this, the 5th Circuit found that Santos-Zacaria’s impermissible-factfinding argument was “unexhausted” and that if the board committed an error he must return to the same board for a remedy before moving on to a federal court, the petition stated.

During oral arguments at the Supreme Court, neither the petitioner’s sexual orientation nor gender identity was discussed. Instead, the hearing focused on issues related to procedural law.

U.S. Department of Justice attorney Yaira Dubin urged the court to reject the petitioner’s appeal.

“The INA creates an adversarial scheme that authorizes judicial review only after agency procedures are exhausted. That reflects Congress’s judgment on how best to manage the high volume of immigration cases to achieve uniformity, efficiency, and fairness in an overburdened system,” she said.

Santos-Zacaria’s arguments “conflict with that judgment,” Dubin added.

But the justices did not appear to accept the Biden administration’s position that Santos-Zacaria must exhaust all available administrative remedies before the 5th Circuit could hear the case.

Justice Elena Kagan said the high court “has consistently said that when the key thing is what the party has to do, that’s non-jurisdictional.”

Kagan was referring to jurisdictional rules, which take away the authority of courts to entertain a case, as opposed to the more flexible claims processing rules.

Justice Brett Kavanaugh asked Dubin if it would “be better for us for clarity purposes to say exhaustion requirements are not jurisdictional unless the word ‘jurisdiction’ is used, just so the lower courts don’t thrash around in this unnecessarily for years on end?”

Dubin said the court “has been pursuing clarity … in this area, and I do think that this provision comes as close as you can to saying this is a limitation on a court authority without using the word ‘jurisdiction.’ So, if you disagree with that, I do think it would be very helpful.”

Justice Amy Coney Barrett asked Dubin how the court should proceed.

“Let’s say that we disagree with you about jurisdiction … shouldn’t we just remand to the 5th Circuit for it to address the impermissible fact-finding claim?” the justice asked.

Justice Sonia Sotomayor appeared skeptical that the court would deal with both the issue of jurisdiction and impermissible fact-finding.

“Is there any way we reach both?” she said to Paul Hughes, attorney for Santos-Zacaria.

“Well, if the court were to disagree with us on one, I think it would have to reach the other,” he said.

Justice Neil Gorsuch suggested to Dubin the court should rule on jurisdiction and stop there.

Gorsuch asked the government lawyer if the court should deal with the factfinding issue now “so that everybody has clarity on the playing field.” The issue “seems to me pretty important and likely to impact a very, very large number of immigration appeals.”

Dubin said, “yes, so the … courts of appeal all agree that … issue exhaustion … is required under the INA.”

The Supreme Court is expected to rule on the case by June.

This article by Matthew Vadum appeared Jan. 17, 2023, in The Epoch Times.

Photo: Supreme Court Justice Amy Coney Barrett in an undated photograph before she was confirmed to the high court.