Skip to main content

Why Biden Administration’s Efforts to Deport Transgender Immigrant Are Not What They Seem

LGBT rights rally outside the US Supreme Court

Demonstrators in favour of LGBT rights rally outside the U.S. Supreme Court on Oct. 8, 2019. (Photo by SAUL LOEB/AFP via Getty Images)

The Biden administration opposed a transgender immigrant’s claim against deportation Tuesday when it warned the Supreme Court that a ruling in the immigrant’s favor could be “destabilizing” for the federal immigration system.

Though the case seems to be a departure from the administration’s usual championing of transgender rights in matters relating to protection from discrimination, it does not indicate a change in federal LGBTQ+ policy.

The petitioner in Santos-Zacaria v. Garland is known as Estrella Santos-Zacaria, though her legal name (which is the name used in all legal proceedings and documents) is Leon Santos-Zacaria. She a 34-year-old transgender woman who is attracted to men. Santos-Zacaria has asked multiple federal courts to stop the U.S. government from deporting her to her home country of Guatemala, where she says she would be subject to persecution because of her gender identity or sexual orientation.

The administration opposes her claims, but the case does not rest on the legal significance of gender identity. Rather, her sexual orientation and identity are important in relation to her claim against deportation — but the Supreme Court is merely considering the procedure she followed in pursuing that claim.

A child’s flight from Guatemala

According to court documents, Santos-Zacaria was originally from a small town in Guatemala and was raped by a neighbor when she was 12 years old. Per the petition:

The rapist repeatedly denigrated petitioner using an anti-gay slur and threatened to kill her if she reported the rape. On account of petitioner’s expression of sexual orientation and gender identity, townspeople threatened to “kill” her. Petitioner fled Guatemala, eventually reaching the United States.

Following the attack, Santos-Zacaria lived in Mexico for a few years, then unlawfully entered the U.S. at least twice. She was deported to Guatemala in 2008 and again in 2012. In 2018, she entered the U.S. again, was detained, then applied  for “withholding of removal” under federal immigration law; she sought asylum on the basis that she would likely be persecuted for her sexual orientation and gender identity if she returned to Guatemala.

“Inexplicable” outcomes in court

When Santos-Zacaria pleaded her case, the presiding immigration judge found her account of harm “credible,” but still denied her application on the grounds that she did not suffer past persecution and therefore, was not entitled to a presumption of future persecution.

In part, the court based its findings on Santos-Zacaria’s acknowledgment that Guatemalan attitudes toward the LGBTQ+ community have changed over the years, particularly in large cities (as opposed to the small town in which she had been raised). Santos-Zacaria’s lawyers, though, call the court’s ruling “inexplicable” in that it credited her account of being raped, but still found that she did not face enough future risk to avoid deportation.

Santos-Zacaria next appealed to the Board of Immigration Appeals (BIA), and more conflicting results followed.  The BIA reversed some of the lower court’s findings, and found that the petitioner had established past persecution. However, the BIA found that she failed to properly establish the future risk of persecution. According to Santos-Zacaria’s lawyers, the BIA should not have made any findings of fact on its own at all regarding future persecution, and instead, should have simply remanded the case to the lower court once it reversed the finding on past persecution.

Santos-Zacaria took her procedure-based appeal to the U.S. Court of Appeals for the Fifth Circuit, a conservative court heavy with Donald Trump appointees. A panel of the Fifth Circuit ruled 2-to-1 that it did not have proper jurisdiction over the case at all, because Santos-Zacaria should have filed a motion for reconsideration with the BIA, rather than an appeal with the Fifth Circuit.

The justices weigh in

In the case before the Supreme Court, the justices now consider the scope of the Fifth Circuit’s authority to preside over disputes like Santos-Zacaria’s. The question — whether the BIA engaged in fact-finding that is impermissible under federal immigration law — is a narrow procedural one with significant consequences for asylum seekers.

Attorney Paul W. Hughes called his argument on behalf of Santos-Zacaria one with “tremendous practical implications.” Despite those real-life concerns, though, neither Hughes nor the justices mentioned the immigrant or the threats she might face in Guatemala during the argument.

Rather, the colloquy was confined to debates over generalized statutory interpretation. Primarily, the justices focused on the conceptual question of whether “exhaustion requirements” (legalese for the idea that a litigant must first complete a set of procedural steps at the lower tribunal before moving on to an appeal in federal court) are more about the litigant — or more about the court.

One interpretation would render exhaustion requirements a simple obligation of a litigant. Another would mean a limitation of a court’s jurisdiction — and would therefore limit the appeals a party like Santos-Zacaria could bring.

Justice Brett Kavanaugh alerted Hughes to his take on the matter, and remarked, “And this statute at least on its face speaks to the court’s power to review.”

Justice Samuel Alito was not particularly receptive to Hughes’s argument, and said the lawyer was advocating for a “magic words rule” that would settle the question before the Court.

Alito also questioned past precedent when he asked Hughes about how his argument stacks up against “the bad ol’ days when the Court was not disciplined about the use of jurisdiction.” Alito’s negative attitude toward some of the Court’s past rulings is unsurprising, given his now well-known stance on the 50-year-old Roe v. Wade precedent, which Alito called “egregiously wrong” in his ruling to overturn it.

As is often the case, Justice Sonia Sotomayor demonstrated disagreement with Alito on the issue of litigant requirement versus jurisdictional limitation.

Sotomayor called past cases involving a litigant’s responsibility to meet exhaustion requirements “very different” than “most jurisdictional cases which have to do with subject matter classifications…[which address] that the court can’t hear certain issues and it has nothing to do with what the litigant does or doesn’t do.”

Assistant to the Solicitor General Yaira Dubin argued on behalf of the Biden administration, and urged the justices to rule against Santos-Zacaria or risk a result that would be “destabilizing” for immigration cases. Dubin warned that allowing the Fifth Circuit to review Santos-Zacaria’s immigration appeal would create unmanageable outcomes in future claims against deportation.

Indeed, the Court’s decision in the case has potential to dictate procedural demands in all deportation withholding cases — not just those that are based on persecution of LGBTQ+ immigrants.

During questioning, some of the justices were noticeably skeptical of Dubin’s arguments. Justice Elena Kagan revisited Sotomayor’s earlier stance and called Santos-Zacaria’s exhaustion requirement “very different” than substantive limitations on a court’s power to hear a kind of case — an indication that the two will side with Santos-Zacaria.

Both Kagan and Sotomayor remarked at times during the proceeding that Hughes’s ability to raise a plausible reading of the relevant statute would be enough to secure a victory for Santos-Zacaria.

The underlying substantive question — whether Santos-Zacaria really would face persecution if she returned to Guatemala now — is several steps removed from the matter the justices will decide. Buried in layers of analysis over the limits of federal appellate jurisdiction lies one person’s fight to stay in the U.S. despite a history of abuse, fear, and deportation.

You can listen to the full oral arguments here.

[image via AP/Patrick Semansky]

Have a tip we should know? [email protected]

Filed Under:

Follow Law&Crime:

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos