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Asylum for trans woman hangs in the balance of thorny circuit split

Party lines may signal the winner in a Supreme Court case where a transgender immigrant who was raped in her home country is fighting a deportation order.

WASHINGTON (CN) — In an asylum case that puts the Biden administration's arguments at odds with its stated commitment to social justice, an attorney for the Justice Department urged the Supreme Court on Tuesday to rule against the transgender petitioner.

Leon Santos-Zacaria brought up LGBT persecution as the basis to block her deportation in 2018, but it is the position of the Justice Department that she fumbled the steps of addressing her arguments administratively. To wit, Santos-Zacaria leapfrogged to the Fifth Circuit after the Board of Immigration Appeals ruled against her, skipping the step where she was supposed to seek reconsideration of the board's ruling.

“The court should reject petitioner’s approach and hold that noncitizens cannot forego available agency procedures to raise issues in federal court in the first instance,” Yaira Dubin, assistant to the U.S. solicitor general, told the justices this morning at oral arguments.

Dubin sparred with Justice Ketanji Brown Jackson over the position.

“Can you say again why you think that is a situation in which the particular mechanism at issue is the motion for reconsideration?” Jackson asked.

“It's a procedural mechanism that you have the right to file, and it's capable of giving you some relief,” Dubin said.

Jackson replied, skeptically: “For me, I don't think ‘as of right’ is doing any work in that analysis.”

The Biden appointee's female colleagues, all Democrats, were resistant to Dubin's arguments as well.

“I just don't see how you’d get it from the text of the statute — how you're able to parse the text and say on one hand there's an obligation and on the other that obligation disappears when you've already had a first shot,” Justice Sonia Sotomayor said.

Justice Elena Kagan added onto the questioning. "If you're right about what ‘as of right’ means, Ms. Dubin, then wouldn't there be an obligation to file in every case? But, in parts of your brief," the Obama appointee pressed, "you suggest that there's only an obligation to file when the BIA itself has introduced the error. And I don't understand how the two parts of your position can coincide.”

The conservative members of the court appeared resistant meanwhile to the arguments from an attorney for the 35-year-old immigrant, Paul Hughes of McDermott Will & Emery.

“Do you think Congress could make an exhaustion requirement jurisdictional without using the word jurisdiction?” Justice Brett Kavanaugh asked, questioning Hughes on why Congress would include “special magic words,” such as "as of right
just for the exhaustion requirement.

Justice Samuel Alito likewise asked Hughes to give an example without using the term "jurisdiction" of how an exhaustion provision would have to be worded to limit the court's jurisdiction.

Hughes responded that his argument does not have to be better than the government’s, just deemed a plausible interpretation.

“If we're wrong about this, it has the effect of delegating to agencies the ability to make rules that have jurisdictional care,” Hughes said.

There is no dispute that a neighbor of Santos-Zacaria in Guatemala raped her and threatened to kill her when she was 12 years old.

She left home soon thereafter and first entered the United States for the first time when she was 20. The Justice Department is seeking to remove her now on the basis of a 2008 order of removal, but Santos-Zacaria could secure withholding of removal if she can show that she is likely to face persecution in her home country as a member of a protected group. 

Before she went to the Fifth Circuit, the Board of Immigration Appeals had affirmed the denied of protection on the basis that Santos-Zacaria rebutted her own presumption of persecution by returning to Guatemala at least three times over the years. One of the trips occurred after the death of her father, but Santos-Zacaria says would wear men's clothes, cut her short or take other steps to conceal her trans identity on these trips.

Though the Fifth Circuit considers Santos-Zacaria’s case jurisdictional, the Second and Seventh have deemed other cases with similar issues as procedural.

The First, Third, Fourth, Sixth, Ninth, 10th and 11th circuits have ruled on such cases well, reaching the same jurisdictional holding as the Fifth Circuit.

“As a matter of plain text, the Fifth Circuit’s position is doubly wrong: It is wrong as to the jurisdictional status of the exhaustion requirement, and it is wrong as the substantive content of that requirement and that the high court should rectify these issues,” Santos-Zacaria’s petition to the high court states.

“Because this is a frequently invoked statute, and because the issues addressed in these proceedings are extraordinarily grave — applicants for withholding press claims that, if meritorious, seek to avoid likely persecution or death — this Court’s resolution of these questions is imperative,” the petition continues.

Dubin argued for the government that a ruling for Santos-Zacaria “would upset Congress's judgment that appellate court should review board decisions not adjudicate arguments in the first instance.” 

“Critically, this Court has never held that a restriction like this one is not jurisdictional,” Dubin said Tuesday.

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