The U.S. Supreme Court will hear oral arguments on Jan. 17 in a case brought by a transgender illegal immigrant against the Biden administration.
At issue is a section of U.S. immigration law that states illegal aliens must exhaust “all administrative remedies available to the alien as of right” before appealing the decision in the courts. The Supreme Court will decide whether that requirement can be waived or forfeited.
The plaintiff in the case, Guatemalan native Leon Santos-Zacaria, is a twice-deported, 34-year-old transgender woman who again reentered the country illegally in 2018 and is now seeking withholding of removal on claims of persecution.
In a legal filing (pdf), attorneys for Santos-Zacaria said that their client had been raped at the age of 12 and received death threats “on account of her gender identity and sexual orientation” in Guatemala.
Under the Immigration and Nationality Act (INA) an illegal alien is eligible for withholding of removal if “the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.”
But while an immigration judge found Santos-Zacaria’s account of harm to be “credible,” the judge “inexplicably ruled that she did not suffer past persecution, and thus was not entitled to a presumption of future persecution,” the filing states.
Santos-Zacaria appealed that judge’s decision to the Board of Immigration Appeals (BIA), which reversed the immigration judge’s ruling on past persecution but still determined that the plaintiff “had not shown she would be persecuted in the future.”
At that point, Santos-Zacaria appealed the board’s decision to the Fifth Circuit Court of Appeals, holding that the BIA had made a procedural error by engaging in its own factfinding to reach its decision rather than returning the case to the immigration judge.
That appeal was denied on the grounds that Santos-Zacaria had not exhausted “all administrative remedies available” by filing a discretionary motion with the BIA to reconsider its decision.
Santos-Zacaria’s legal team, however, has argued that the exhaustion requirement is not “jurisdictional” but merely a procedural rule that could be waived by the court, and that a motion to reconsider is not a “remedy available as of right.”
In its legal brief (pdf), the Justice Department notes that Santos-Zacaria first entered the U.S. illegally in 2008 and was deported under a lawful order of removal. When Santos-Zacaria illegally entered the country a second time, the initial removal order was reinstated, resulting in a second deportation. But when the Department of Homeland Security sought Santos-Zacaria’s removal a third time in 2018, the plaintiff sought statutory withholding from removal, setting the current legal battle in motion.
According to the Department of Justice (DOJ), despite Santos-Zacaria’s alleged fears of persecution, the plaintiff voluntarily returned to Guatemala on three separate occasions in 2014, 2015, and 2018.
Additionally, the DOJ notes that, under cross-examination, Santos-Zacaria had acknowledged that “a lot has happened in Guatemala” over the past two decades, and that, legally, “she could register herself ‘as a woman’” now in the South American nation.
Santos-Zacaria also admitted under oath that “probably there is another place where I can live down there” that would be more accepting of gay and transgender individuals.
Thus, the DOJ held that the immigration judge’s denial of withholding of removal was correct.
The DOJ also argued that the court should uphold the Fifth Circuit’s determination that Santos-Zacaria had failed to exhaust all administrative remedies available.
“As the court of appeals explained, petitioner’s impermissible-factfinding claim is ‘unexhausted’ because she failed to raise it before the Board in a motion for reconsideration,” the administration asserted. “Motions for reconsideration are among the ‘administrative remedies available to [a noncitizen] as of right’ … because the INA expressly provides that a noncitizen ‘may file one motion to reconsider a decision that [she] is removable.”
The DOJ also pushed back against the plaintiff’s claims that the exhaustion requirement is not jurisdictional.
Noting that jurisdictional provisions “address ‘a court’s competence to adjudicate a particular category of cases,’” and delineate “the classes of cases a court may entertain,” the DOJ asserted that the language of the law in question satisfies those definitions.
“[A]nalysis of the text of Section 1252(d)(1) establishes that it is jurisdictional because it imposes an express limit on which cases ‘[a] court may review,’” the administration asserted. “And petitioner’s arguments to the contrary run counter to the nearly universal holdings of the courts of appeals that have addressed the issue.”
The Supreme Court is scheduled to hear oral arguments from both parties at 10 a.m. ET on Jan. 17.