Transgender Guatemalan woman's deportation case to get U.S. Supreme Court review

by Reuters
Tuesday, 4 October 2022 07:50 GMT

A rainbow flag, commonly known as the gay pride flag or LGBT pride flag, blows in the wind inside Christopher Park outside the Stonewall Inn in New York, U.S., June 27, 2019. REUTERS/Shannon Stapleton

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The U.S. Supreme Court will take up a transgender Guatemalan woman's request to avoid being deported

(Reuters) - The U.S. Supreme Court said on Monday that it will take up a transgender Guatemalan woman's bid to avoid being deported after a U.S. immigration board said she did not prove that she would face persecution if she returned to her home country.

The court granted Leon Santos-Zacaria's petition for review, which presents two technical but important questions about the process immigrants must follow to appeal rulings ordering their deportation.

Benjamin Osorio, a lawyer for Santos, said he was pleased that the Supreme Court had taken up the case.

The U.S. Department of Justice, which represents the government, did not immediately respond to a request for comment.

Santos, 34, says a neighbor in Guatemala raped and threatened to kill her when she was 12 because of her gender identity and sexual orientation, and that if she is deported she would likely be subjected to further harassment and violence.

The U.S. Board of Immigration Appeals (BIA) in 2019 said the government had shown that conditions for LGBT people in Guatemala have improved, so Santos could not establish that she was likely to face persecution if she is deported.

The 5th U.S. Circuit Court of Appeals in a 2-1 decision last year said it could not hear Santos' appeal because she had raised arguments that were not made before the BIA.

The Supreme Court will decide if the 5th Circuit was correct, and whether Santos was required to first ask the BIA to reconsider its ruling before appealing.

In a May petition, Santos' lawyers said the issues presented by the case are crucial because they determine whether an immigrant's bid for asylum or other kinds of relief from deportation is subject to court review. Santos could lose any opportunity for court review if the BIA refuses to reopen her case, they said.

Santos is not eligible for asylum because she had previously been deported from the United States. She is seeking a separate form of immigration relief known as withholding of removal, which is granted to individuals who are ordered deported but are likely to face persecution based on a protected trait in their home countries.

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

For Santos-Zacaria: Paul Hughes of McDermott Will & Emery; and Benjamin Osorio of Murray Osorio

For the United States: Solicitor General Elizabeth Prelogar