Transgender Woman Given Another Chance to Fight Deportation by U.S. Supreme Court

A Guatemalan transgender woman who is facing deportation from the U.S. will have another chance to argue that she should stay, thanks to a unanimous Supreme Court ruling issued Thursday.

Estrella Santos-Zacaria had said she would be persecuted if she were forced to return to Guatemala. As a teenager in that country, she was raped and threatened with murder. She fled to the U.S. shortly thereafter but was deported in 2008. She returned to the U.S. 10 years later and was detained by immigration authorities. Between 2008 and 2018, she had lived primarily in Mexico, and she was raped and assaulted by a gang there.

After her 2018 detention, she sought to remain in the U.S., but an immigration judge in the Department of Justice ruled that she had to be deported. She appealed to the Board of Immigration Appeals.

“The Board agreed with Santos-Zacaria in part, determining that she had suffered past persecution in Guatemala and was therefore entitled to a presumption of future persecution,” the newest Supreme Court justice, Ketanji Brown Jackson, wrote in her first majority opinion since joining the court. “But the Board found that this presumption was rebutted (which was an issue that the Immigration Judge had not reached).”

She then appealed to the U.S. Court of Appeals for the Fifth Circuit. “Santos-Zacaria claimed the BIA engaged in impermissible fact-finding in making the determination about future persecution,” Bloomberg Law reports. “But because Santos-Zacaria didn’t raise the fact-finding challenge before the BIA, the appellate court dismissed the appeal.”

The law requires noncitizens to exhaust all their options with administrative bodies, such as immigration authorities, before going to court. But the Supreme Court ruled that this is flexible. Not treating it as flexible would force applicants to “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,” Jackson wrote. So the Fifth Circuit can hear Santos-Zacaria’s appeal.

“The State Department has found that Guatemala has done little to protect LGBTQ people and that transgender women are subject to frequent threats of violence,” the Associated Press notes.

In her opinion, Jackson was joined by Justices John Roberts, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Justice Samuel Alito wrote a concurring opinion, in which Justice Clarence Thomas joined.

The case is Santos-Zacaria v. Garland.