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High court revives trans immigrant’s deportation protest

The judgment was unanimous for a trans woman who says she would be persecuted if sent back to Guatemala.

WASHINGTON (CN) — A transgender immigrant who was raped in her home country can go directly to a federal appeals court to fight a deportation order, the Supreme Court ruled Thursday, vacating an order that said she had to exhaust administrative remedies.

There was no dispute that a neighbor of Leon "Estrella" Santos-Zacaria raped her and threatened to kill her in Guatemala 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. 

Eager to continue the fight for his client, Santos-Zacaria’s attorney Paul Hughes of McDermott Will & Emery applauded the Supreme Court’s ruling Thursday.

“We are gratified that the Supreme Court completely vindicated Ms. Santos-Zacaria’s position,” Hughes said in a statement. “The government urged a result that would have created administrative traps for unsophisticated and under-resourced litigants in immigration proceedings. This result ensures that noncitizens may fairly obtain judicial review, just as Congress intended.”

An immigration judge had previously found 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.

After the Board of Immigration Appeals affirmed the ruling against her, she went to the Fifth Circuit U.S. Court of Appeals. This time she lost on the basis that she had skipped the step where she was supposed to ask the board to reconsider its ruling against her.

“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 at January oral arguments.

Siding with Santos-Zacaria, however, Justice Ketanji Brown Jackson wrote for the unanimous court Thursday that the rule for exhaustion cannot be considered jurisdictional since its point is to "promote[] efficiency, including by encouraging parties to resolve their disputes without litigation.

"But jurisdictional treatment can result in the opposite: If exhaustion is jurisdictional, litigants must slog through preliminary nonjudicial proceedings even when, for example, no party demands it or a court finds it would be pointless, wasteful, or too slow. Similarly, an exhaustion objection raised late in litigation (as jurisdictional objections can be) might derail 'many months of work on the part of the attorneys and the court.' Thus, jurisdictional treatment could disserve the very interest in efficiency that exhaustion ordinarily advances."

To adopt the government’s approach, Jackson added, would present practical difficulties moving forward.

“If motions to reconsider are required only sometimes, what cases qualify? In this very case, the members of the Court of Appeals panel disagreed about whether a motion to reconsider was required under the Government’s rule, largely because they differed over whether Santos-Zacaria had asserted adequately to the Board earlier that new factfinding would be impermissible,” the ruling states. “And how are noncitizens — already navigating a complex bureaucracy, often pro se and in a foreign language — to tell the difference?”

The justice expressed the court’s confidence that Congress wouldn’t have signed on to such chaos.

“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),” she said.

Thursday's ruling resolves a circuit split. Both the Second and Seventh had previously deemed other cases with similar issues as procedural, rather than jurisdictional. Like the Fifth Circuit, however, the First, Third, Fourth, Sixth, Ninth, 10th and 11th Circuits considered exhaustion issues jurisdictional.

The U.S. Department of Justice did not immediately respond to a request for comment about the ruling.

Justice Samuel Alito, joined by Justice Clarence Thomas, noted in a concurring opinion that they agreed with the outcome of the case but that they would not go so far as to decide whether the law at hand is jurisdictional.

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Categories / Appeals, Government

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