The Supreme Court on Tuesday will hear the case of a Guatemalan transgender woman who is seeking to avoid deportation from the U.S. after a lower court said she didn’t go through the proper process to demonstrate she would be persecuted in her home country if she were deported.
The nine justices will ultimately be deciding a technical requirement of U.S. immigration law that says migrants must exhaust “all administrative remedies available” before appealing their immigration decisions in the courts.
The Biden administration, a champion for LGBTQ rights, finds itself at odds with a transgender immigrant who entered the U.S. illegally and is trying to stay, claiming fear of persecution because of her sexual identity.
The plaintiff, Leon Santos-Zacaria, is a transgender woman who claims she was raped and received death threats because of her gender identity and sexual orientation in her native Guatemala.
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She allegedly fled to the United States and sought to remain permanently under a statute that offers protection to immigrants if they can prove they are or will be persecuted in their native country because of “race, religion, nationality, membership in a particular social group or political opinion.”
An immigration judge found Santos-Zacaria’s claims “credible” but her court documents say the judge “inexplicably ruled that she did not suffer past persecution, and thus was not entitled to a presumption of future persecution.”
Santos-Zacaria appealed to the Board of Immigration Appeal (BIA), which disagreed with the judge’s ruling on past persecution but still denied her appeal and determined that she “had not shown she would be persecuted in the future.”
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Santos-Zacaria appealed to the Fifth Circuit, which denied her claim because she didn’t follow a U.S. statute that says she needed to exhaust all remedies with the BIA and that she should have filed what’s known as a “motion to reconsider” with the BIA.
The Justice Department is arguing that Santos-Zacaria, even after making claims about persecution, had testified she was open to voluntarily returning to Guatamala on three separate occasions since leaving as a teenager, undermining her arguments about possible persecution.
“She specifically acknowledged that she could now register herself ‘as a woman’ in Guatemala “if [she] want[s] to be a woman now legally,’ the DOJ brief stated.
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DOJ’s brief also said the Fifth Circuit judge observed that Santos-Zacaria “‘agreed that there was probably a place where she could safely relocate within Guatemala,’ a concession that was sufficient to rebut the presumption that petitioner’s life or freedom would be threatened if she returned there.”
DOJ argues that Santos-Zacaria didn’t raise her claims through the proper channel with the BIA and says the Supreme Court should uphold the Fifth Circuit’s decision.
Lawyers for Santos-Zacaria said DOJ’s position “creates a treacherous trap for vulnerable litigants, setting up landmines of administrative procedure …”
The Supreme Court will hear oral arguments Tuesday at 10 a.m. ET.