Access to Justice

US Supreme Court allows transgender migrant to challenge deportation order over risk of anti-LGBT persecution

The US Supreme Court unanimously held Thursday that a transgender migrant may appeal a Board of Immigration Appeals (BIA) decision that denied her relief from deportation. The court reversed the US Court of Appeals for the Fifth Circuit’s ruling that it did not have jurisdiction over Estrella Santos-Zacaria’s request for judicial review.

Santos-Zacaria petitioned the Fifth Circuit to review the BIA’s decision to deny her “withholding of removal.” Santos Zacaria told an immigration judge that she was sexually assaulted in Guatemala at the age of 12 because of her sexual orientation.

Under §241(b)(3) of the Immigration and Nationality Act (INA), noncitizens who face threats to their life or freedom because of their “membership in a particular social group” generally may not be deported. However, both the immigration judge and, on appeal, the BIA rejected Santos-Zacaria’s claims.

The Fifth Circuit then denied Santos-Zacaria’s petition for review in a 2–1 ruling, claiming that it lacked jurisdiction even though neither party raised the issue. The majority said that because Santos-Zacaria did not petition the BIA to reconsider its denial, she did not “[exhaust] all administrative remedies available… as of right” under 8 U.S.C.§1252(d)(1), thereby depriving the court of jurisdiction over the matter.

The Supreme Court reversed the Fifth Circuit’s ruling, finding that 8 U.S.C.§1252(d)(1) does not limit appeals courts’ jurisdictions and that Santos-Zacaria did exhaust all remedies available to her “as of right.”

Justice Ketanji Brown-Jackson said in her opinion that exhaustion requirements are usually “claim processing rules” instead of jurisdictional matters and that 8 U.S.C.§1252(d)(1) lacked language characteristic of other jurisdictional requirements. She also wrote that:

Jurisdictional treatment of an exhaustion requirement could undo the benefits of exhaustion. That is, exhaustion promotes 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.

Justice Brown-Jackson also held that since Santos-Zacaria was not entitled to a BIA review of its own decision, she did exhaust all administrative remedies available to her “as of right.”

Justice Samuel Alito wrote a concurring opinion, joined by Justice Clarence Thomas, saying that he agreed that Santos-Zacaria exhausted administrative remedies but did not want to rule on whether 8 U.S.C.§1252(d)(1) is a jurisdictional requirement.

The Constitutional Accountability Center, which filed an amicus curiae in the case, hailed the court’s ruling as “an important victory for noncitizens trying to navigate our complicated immigration system—and for access to the courts.” The organization also said the ruling removed “some of the many roadblocks facing noncitizens seeking review of the government’s decision to remove them from the country.”

The Supreme Court similarly ruled in March that a deaf student could sue his school district for not providing an interpreter despite the fact that he did not exhaust administrative remedies.

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