Last week, the U.S. Supreme Court unanimously ruled in favor of a transgender asylum seeker who claimed she would face persecution if forcibly deported back to her native country of Guatemala.
Estrella Santos-Zacaria, 33, claimed that she fled from Guatemala to the United States as a teenager after being raped multiple times, receiving death threats, and facing harassment and discrimination due to her gender identity.
Over the course of the next decade, Santos-Zacaria entered the United States unlawfully at least three separate times. She was deported in 2008 and 2012, but instead of returning to live in Guatemala, fled to Mexico for the bulk of the next decade before crossing the U.S.-Mexico border once again in 2018 after being raped by a Mexican gang.
After being detained by immigration authorities, she sought asylum, citing concerns that she would be persecuted due to her gender identity if forced to return to Guatemala — where the government has been passive about cracking down on anti-transgender discrimination and violence against LGBTQ people, especially trans women, remains common, reports The Associated Press.
Despite finding her account of the harms she suffered “credible,” an immigration judge denied her application for asylum on the grounds that she failed to provide sufficient evidence proving that she had faced persecution due to her transgender status.
The judge noted, in that decision, that attitudes within Guatemala have changed over time, especially in urban or more cosmopolitan areas, and suggested she could relocate elsewhere within Guatemala, citing Santos-Zacaria’s own admission, under cross-examination, that societal mores have changed, albeit slowly, since she first fled.
Santos-Zacaria appealed the judge’s decision, and the Board of Immigration Appeals reversed part of the judge’s findings, finding that she had established evidence of past persecution, but had not given enough evidence to suggest she would face future persecution in her home nation if deported back to Guatemala. Her lawyers argued that the BIA should have remanded the case back to the lower court, rather than issuing its own findings of fact.
Santos-Zacaria then appealed to the 5th U.S. Circuit Court of Appeals, which ruled 2-1 that it did not have proper jurisdiction over the case, because Santos-Zacaria should have filed a motion for reconsideration with the BIA rather than appealing to the circuit court. She subsequently appealed to the U.S. Supreme Court, which determined last Thursday that Santos-Zacaria should be granted another chance to argue that immigration officials were wrong to reject her application for asylum.
Writing on behalf of the court, Justice Ketanji Brown Jackson found that the 5th Circuit was wrong to decline ruling on the case on its merits.
“Under the plain language of [U.S. law], a noncitizen must ‘exhaus[t] all administrative remedies available to the alien as of right.’ The parties here dispute whether, to fulfill this requirement, Santos-Zacaria had to seek a certain form of review of her legal claim: reconsideration by the Board of Immigration Appeals. … Because Board reconsideration (like reopening) is a discretionary form of review, it is not available to the noncitizen ‘as of right.’ [The law] therefore does not require a noncitizen to pursue it,” Brown Jackson wrote in an opinion dated May 11.
Brown Jackson also noted that the government’s interpretation of “exhausting all administrative remedies” would “flood the courts with pointless premature petitions” by noncitizens seeking to comply with a flawed statute.
“The Government’s approach would also introduce practical difficulties. If motions to reconsider are required only sometimes, what cases qualify? … And how are noncitizens — already navigating a complex bureaucracy, often pro se and in a foreign language — to tell the difference?” Brown Jackson added.
“The Government’s position presents a world of administrability headaches for courts, traps for unwary noncitizens, and mountains of reconsideration requests for the Board (filed out of an abundance of caution by noncitizens unsure of the need to seek reconsideration). … [W]e are confident that Congress did not adopt such a scheme.”
Paul Hughes, an attorney from the law firm McDermott Will & Emery LLP and a co-director of the Yale Supreme Court Advocacy Clinic, who is part of Santos-Zacaria’s legal team, told Metro Weekly that the team believes both the immigration judge and the Board of Immigration Appeals issued “deeply flawed” decisions. Specifically, they believe those authorities erred in opining that Santos-Zacaria could safely relocate to a different part of Guatemala.
“We don’t think the record remotely supports that conclusion. And instead, it really took one sentence of testimony entirely out of context to arrive at that conclusion,” Hughes said, adding that he also believed the 5th Circuit erred by not deciding the case on its merits — which is precisely the action it will now take following the Supreme Court’s decision.’
“I will say, I think now that this case has had far more attention, the equities are so strong and the arguments are so strong in our favor, we’d be hopeful that the Biden administration would revisit its position on this case. That certainly would be within the power of the Biden administration and DHS [the Department of Homeland Security] to take the position that relief should in fact be granted and support us on this. To date, they have not,” he added. “If anything, are signaling that they will continue to fight the merits of Ms. Santos-Zacaria’s individual case, which I find a bit disheartening.”
Hughes said he hopes that, if the Biden administration doesn’t reverse course, the 5th Circuit will ultimately decide that Santos-Zacaria cannot be deported to Guatemala and will be allowed to remain in the United States without fear of being sent back to countries where her gender identity would put her at risk of persecution, violence, or death.
“It’s a different status than asylum. It does have some less rights than somebody who is granted asylum status would have, but it’s still among the last would provide her the ability to remain and work and live in the United States and establish a life here free from the persecution that that she’s suffering in other countries,” he noted.
“I think the interesting angle here is what the DHS is going to do, because they could do a lot,” Hughes said. “Previously, they were not interested in supporting us on the broader legal questions about jurisdiction. But now that it is about one individual who has a very sympathetic case, I just hope that the administration can find that this is a case where relief is warranted and not continue to fight us in court. But certainly we will see.”
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