June 21, 2023
Santos-Zacaria v. Garland, No. 21-1436, 598 U.S. ___, 2023 WL 3632751 (May 11, 2023) (Jackson, J.)
Response by Cori Alonso-Yoder
Geo. Wash. L. Rev. On the Docket (Oct. Term 2022)
Slip Opinion | SCOTUSblog
Amid little fanfare, the Court allows transgender asylum seeker to continue her bid for protection
Estrella Santos-Zacaria fled Guatemala as a teenager, seeking asylum-based protections in the United States.1 On May 11, 2023, the U.S. Supreme Court decided that she could continue her bid for refuge. In a decision authored by Justice Ketanji Brown Jackson, the Court reversed the Fifth Circuit Court of Appeals’ holding that it lacked jurisdiction because Estrella had failed to exhaust remedies available before the Board of Immigration Appeals (BIA). The Supreme Court’s decision is notable for a couple of reasons. First, it comes at an inflection point for U.S. policy on asylum-seekers and administration of the border. Second, the decision reflects the Court’s affirmation of the Petitioner’s transgender identity during a time of pitched debate on questions of LGBTQ inclusion. Both in its substance and rhetoric, the Santos-Zacaria decision provides an incrementally more favorable approach toward transgender asylum seekers than the decision of the Fifth Circuit Court of Appeals.
Estrella’s legal proceedings represent the second time she has faced deportation from the United States.2 After having been removed upon her first entry in 2008, she returned in 2018 with renewed fear related to her gender identity and sexual orientation.3 While her prior removal order disqualified her from receiving a grant of asylum,4 the Department of Homeland Security referred her to an immigration judge for adjudication of her claim for the related protection of withholding of removal.5 The immigration judge denied her petition for withholding of removal6 despite evidence that Estrella had been sexually assaulted by a neighbor based on her gender identity.7 In an administrative appeal, the BIA disagreed with the immigration judge, finding that Santos-Zacaria had established past persecution but that the presumption of future persecution if she were to return to Guatemala had been rebutted.8 Appealing the BIA’s decision to the Fifth Circuit, Santos-Zacaria argued that the BIA impermissibly decided the question of the rebuttal of persecution because the immigration judge had never reached that issue.9 The Fifth Circuit dismissed her appeal, reasoning that it lacked jurisdiction under 8 U.S.C. § 1252(d)(1), which requires that a petitioner for judicial review “has exhausted all administrative reviews available as of right.”10 Because Santos-Zacaria had not filed a request for reconsideration with the BIA raising its impermissible factfinding, the Fifth Circuit reasoned that she had failed to exhaust administrative review within the meaning of § 1252(d)(1).11
The Court granted Santos-Zacaria’s petition for certiorari to resolve the Circuit Courts’ differing interpretations of 8 U.S.C. § 1252(d)(1).12 In taking up the case, the Court recognized two issues for its review: (1) whether § 1252(d)(1) presents a jurisdictional requirement; and (2) whether the statute requires exhaustion of discretionary forms of administrative review.13 In Justice Jackson’s opinion, the Court responded “no” to both questions.
In concluding that the statute does not present a jurisdictional hurdle, the Court applied the “clear statement” principle which reasons that a rule is jurisdictional “only if Congress ‘clearly states’ that it is.”14 The Court concluded that to impose a jurisdictional requirement absent a congressional statement risks “harsh consequences” for litigants.15 The Court found that no express language in the statute provided a clear statement from Congress and that its provisions are more akin to claim-processing rules; thus that it is nonjurisdictional.16
On the second issue of whether § 1252(d)(1) requires exhaustion of discretionary forms of review, the Court again found that it did not. Looking to the plain language of the statute requiring that a noncitizen exhaust all administrative remedies available “as of right,” the Court concluded the remedies available purely at the BIA’s discretion fall outside of the meaning of § 1252(d)(1).17 Because a motion for reconsideration is only granted by the BIA as an exercise of its discretion, it is not required for exhaustion under the statute.18 In rejecting the government’s contention that the statute requires filing of a motion to reconsider to qualify for judicial review in at least some cases, the Court noted that, “[t]he Government’s position presents a world of administrability headaches for courts, traps for unwary noncitizens, and mountains of reconsideration requests for the Board.”19 And, returning to the perspective of litigants like Santos-Zacaria, “how are noncitizens—already navigating a complex bureaucracy, often pro se and in a foreign language—to tell the difference?”20
This observation from the Court drives home how this otherwise dry decision on the jurisdictional and procedural parameters of an unwieldy and broken system bears critical importance for Estrella Santos-Zacaria and the hundreds of thousands of individuals she represents. The Court released the decision to coincide with the same date that the Biden Administration officially ended the pandemic-era restrictions on entry under Title 42 of the U.S. Code.21 The policy, which began under the Trump Administration in 2020, allowed U.S. officials to expel people seeking to enter the country more than 2.8 million times.22 In anticipation of the expiration of the policy rejecting entry to migrants, the Department of Homeland Security released a series of new policies intended to replace the so-called health order.23 A day ahead of the expiration of the order, the Departments of Justice and Homeland Security released a final rule, further restricting asylum eligibility for those seeking protection in the United States.24
The “complex bureaucracy” noted by Justice Jackson in Santos-Zacaria now includes new regulations further narrowing the pathways to protection and—in a twist worthy of Kafka—a required appointment with the government made available exclusively through a glitchy mobile app, CBP One.25 Given the Administration’s clear desire to replace Title 42 restrictions with a more politically palatable system of restriction, one is left wondering if the glitches are more feature than flaw. This context makes the Court’s decision to soften the harsh consequences of the bureaucracy on noncitizens seeking protection all the more remarkable.
Of course, the Court is painfully aware of this context having approached Title 42 litigation in a series of much more-widely reported decisions earlier this term. In dueling claims filed by conservative states and immigrant advocates in separate respective circuits, the Court first granted a stay of a lower court’s decision to set aside and vacate the orders under Title 42,26 and then dismissed the litigation as moot following the government’s announcements of its intentions with the winddown of Title 42.27 Its decision to dismiss the litigation as moot came a mere three days before the Court’s observations of the bureaucratic hurdles faced by Estrella Santos-Zacaria.
In comparison to the massive impact of the Court’s interventions on Title 42, its decision in Santos-Zacaria may easily fly under the radar as niche and unimportant. But this comparatively smaller case also has a big impact for the Court’s approach to language and rhetoric regarding the Petitioner. In the decision, Justice Jackson goes out of her way to name the Petitioner “Estrella” in the first line of the Court’s syllabus of the case.28 In this first line the Justice also takes care to refer to the Petitioner as a “noncitizen.”29 In the first footnote of the decision, Justice Jackson notes that the term noncitizen is equivalent to the statutory term “alien.”30 The rhetorical choice to conscientiously use the humanizing alternative to the label otherwise found in statute along with the efforts to avoid misnaming or misgendering the Petitioner are important and commendable. By contrast, the Fifth Circuit’s decision only refers to the Petitioner’s name assigned at birth. I have written about the ability to name oneself as a civil right and how courts have a rule to play in promoting that right.31 While he took no part in the Santos-Zacaria litigation, Fifth Circuit Judge Kyle Duncan’s refusal to recognize transgender litigants’ pronouns and names was among the reasons cited by protestors of his remarks at Stanford Law earlier this year.32 Judge Duncan’s refusal is a recent example of judges denying litigants’ name changes based on bias and without legal support.33 By contrast, Justice Jackson’s method reflects a more inclusive approach, particularly coming as it does within the weeks leading up to national celebrations of LGBTQ Pride.
As the culture wars rage on with boycotts of beer34 and retailers,35 Santos-Zacaria offers a humble yet critically timed lesson on trans inclusion. Backlash to LGBTQ rights has led to a flurry of state and local legislation leveled against the community, even pushing some Americans to consider fleeing the United States for refuge in other countries.36 Indeed, in its most recent term, the Court also toyed with the idea of deciding a case that could have major policy implications for transgender students.37 Given the magnitude of the immigration and civil rights legal issues we face, it seems easy to ignore or dismiss Estrella Santos-Zacaria’s court victory as a minor decision. But when I think about the case, I am instead reminded of a parable told by attorney Marty Rosenbluth regarding his work with detained immigrants:
There was a little girl and she was walking down the beach and there were hundreds of starfish stranded on the beach . . . And this little girl was throwing starfish back into the ocean, one by one. And this old man comes up behind her and says, “Little girl, why are you bothering? You can’t possibly make a difference. You can’t save all of them.” And she says, “Well, it made a difference to that one.”38
Cori Alonso-Yoder is an Associate Professor of the Fundamentals of Lawyering at the George Washington University Law School. Professor Alonso-Yoder’s commentary on immigration law and immigrants’ rights has been featured by ABC News, The Hill, Washington Post, and Law360, among others.
Recommended Citation
Cori Alonso-Yoder, Response, Santos-Zacaria v. Garland, Geo. Wash. L. Rev. On the Docket (June 21, 2023), https://www.gwlr.org/santos-zacaria-v-garland-amid-little-fanfare-the-court-allows-transgender-asylum-seeker-to-continue-her-bid-for-protection.
