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Trans Woman’s Deportation Fight Resonates With Supreme Court (1)

Jan. 17, 2023, 5:02 PMUpdated: Jan. 17, 2023, 7:08 PM

A majority of the justices on the US Supreme Court on Tuesday seemed to agree that a federal appeals court had the authority to hear the appeal of a Guatemalan transgender woman who’s facing deportation.

The case raised two tricky questions about the procedural rules immigrants must follow under the Immigration and Nationality Act in order to appeal a deportation order and whether those requirements must be met to give the court jurisdiction to hear the case.

During an hour of oral arguments, the justices seemed unconvinced that Leon Santos-Zacaria was required to exhaust all of the administrative remedies available in order for the US Court of Appeals for the Fifth Circuit to hear her appeal.

Justice Sonia Sotomayor pointed out that the court has never held that exhaustion is jurisdictional. Adding to Sotomayor’s point, Justice Elena Kagan said the court “has consistently said that when the key thing is what the party has to do, that’s non-jurisdictional.”

Santos-Zacaria’s is the latest in a string of cases that attempt to distinguish truly jurisdictional rules, which deprive courts of the authority to hear a case, and those that are mere “claims processing rules,” which provide more flexibility.

Justice Brett Kavanaugh wanted to know exactly what the court should do if it were to rule against the government and say it’s not.

“If you were to lose this case on the first issue, would it be better for us for clarity purposes to say exhaustion requirements are not jurisdictional unless the word jurisdiction is used just so lower courts don’t thrash around in this unnecessarily for years on end?” he asked Yaira Dubin, an assistant US solicitor general.

Dubin said the court has pursued clarity, but argued the statutory provision in question comes as close to saying there’s a limitation on the court’s authority without using the word jurisdiction.

“If you disagree with that, I do think it would be very helpful,” she said.

In addition to that jurisdictional question raised, the justices were asked if Santos-Zacaria should have asked the Board of Immigration Appeals (BIA) to reconsider its decision to send her back to Guatemala before filing an appeal.

Santos-Zacaria claimed the BIA has engaged in impermissible fact-finding when it determined the presumption that she’d face future violence if deported had been rebutted instead of remanding her case to an immigration judge to make that finding.

The Fifth Circuit said her argument that the BIA’s deportation ruling was based in part on an alleged error, was one that had to first be raised with the BIA in a motion to reconsider. And because she hadn’t exhausted all of her available administrative remedies by making that argument, the Fifth Circuit said it couldn’t consider her appeal.

Congressional Intent

Santos-Zacaria first entered the country illegally in 2008 and was twice returned to Guatemala before illegally re-entering the US again in 2018. The Homeland Security Department tried to reinstate her initial removal order, but Santos-Zacaria applied for humanitarian relief known as a withholding of removal based on her status as transgender woman. She alleged she was raped at 12 by a neighbor, who threatened to kill her because of her sexual orientation, and wouldn’t be safe if sent back to Guatemala.

The US government argued the exhaustion requirement is a jurisdictional rule not a claims processing rule. The text, structure, and statutory context of a provision in the law “make clear that Congress intended for the provision to withdraw the courts’ jurisdiction over unexhausted issues arising from removal proceedings,” attorneys with the Justice Department said in a brief.

Justice Amy Coney Barrett wanted to know what the court should do with the second question if it rules against the government on the first question of jurisdiction. “If we disagree with you about jurisdiction, shouldn’t we just remand to the Fifth Circuit for it to address the impermissible fact-finding claim?” she asked.

Sotomayor seemed to doubt the court would resolve both questions raised in the case.
“Is there any way we reach both?” she asked Santos-Zacaria’s attorney Paul Hughes.

He said if the court disagrees with his client’s position on the first question, it would have to reach the second. But if the court agrees with his clients, Hughes said it would be at the court’s discretion whether it resolves both the jurisdictional question and the statutory question.

Justice Neil Gorsuch said the court could stop at the first question, say it’s not jurisdictional and remand the case. But he asked if the court should address the second question now “so that everybody has clarity on the playing field.”

Federal appeals courts are divided over both questions Santos-Zacaria raised in her case.

The case is Santos-Zacaria v. Garland, U.S., No. 21-1436, arguments.

— With assistance from Kimberly Robinson.

(Updates with more quotes and details from argument.)

To contact the reporter on this story: Lydia Wheeler in Washington at

To contact the editor responsible for this story: John Crawley at