The Supreme Court unanimously ruled May 11 in favor of a transgender illegal alien from Guatemala seeking asylum who claims he would face persecution if forced to return to his home country.
The ruling, a defeat for the Biden administration, is expected to make it easier for those challenging deportation to make their case.
The highly technical ruling also gives the person concerned another opportunity to fight deportation. During oral arguments at the Supreme Court on Jan. 17, neither the petitioner’s sexual orientation nor gender identity was discussed. Instead, the hearing focused on issues related to procedural law.
The decision is not related to the administration’s plan to end the so-called Title 42 policy at 11:59 p.m. on May 11. The Trump-era edict allows the rapid expulsion of illegal aliens crossing the U.S.-Mexico border on public health grounds.
In the case, the U.S. government tried to deport Leon Santos-Zacaria, a Guatemalan citizen who was born male but identifies as a woman and uses the first name Estrella in everyday life. Santos-Zacaria entered the United States illegally at least twice and was removed to Guatemala in 2008 and 2012. He came back to the United States in 2018 and, after being detained, applied for something called withholding of removal under the Immigration and Nationality Act (INA) and for sanctuary under the Convention Against Torture.
The INA states that an alien unlawfully present in the country may be deported after the U.S. Department of Justice issues a final order of removal, but Congress restricts the deportation destination. An alien may not be removed to a country where his or her “life or freedom would be threatened … because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” LGBT individuals are included in the “particular social group” category.
Individuals who have been previously deported and then reenter the country, or who have failed to seek asylum within one year of arriving in the United States, may not apply for asylum. Those individuals are generally allowed to apply for withholding of removal.
This means that at the end of the adjudication process, an immigration judge signs a deportation order and then advises the government that it may not carry it out. The “removal” of the person is said to be “withheld.” The person may still be removed if the destination country agrees to accept the individual.
At the withholding hearing, Santos-Zacaria told the immigration judge he experienced persecution in Guatemala for being a gay and transgender person. He said he had been raped at age 12 because he was homosexual, ridiculed for behaving like a woman, and threatened with death if he did not move away from the community. He said he did not report these incidents to authorities because he did not believe they would help him.
The immigration judge, the Board of Immigration Appeals, and the U.S. Court of Appeals for the 5th Circuit ruled against Santos-Zacaria. The 5th Circuit specifically found that he had failed to exhaust all available remedies under the INA. The exhaustion rule holds that a plaintiff must exhaust all possible administrative remedies before seeking judicial review.
The Supreme Court found in its new ruling that the INA does in fact require individuals to exhaust their administrative remedies but held that the rule was not “jurisdictional.”
“Harsh consequences attend the jurisdictional brand,” the court said, adding that labeling a rule jurisdictional means the judiciary “cannot grant equitable exceptions.”
The court found that despite the exhaustion requirement, the rule here does not meet a high enough bar to be considered “jurisdictional.”
“Indeed, we have yet to hold that any statutory exhaustion requirement is jurisdictional when applying the clear-statement rule,” Jackson wrote.
“[E]xhaustion promotes efficiency, including by encouraging parties to resolve their disputes without litigation,” the court added.
Under a contrary rule, “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.”
When an exhaustion objection is raised late in litigation it could derail “many months of work on the part of the attorneys and the court,” and waste “judicial resources and … unfairly prejudice litigants,” Jackson wrote, quoting a Supreme Court precedent.
The Supreme Court remanded the case to the lower courts “for further proceedings consistent with this opinion.”
Justice Samuel Alito filed a brief statement concurring with the judgment of the court, saying he did not believe it was necessary to decide if the exhaustion rule was jurisdictional.Justice Clarence Thomas joined the statement.
