Supreme Court to Review Immigration Case

Photo from the U.S. Supreme Court website

On the first day of the 2022 Term today, the Supreme Court granted certiorari in Santos-Zacaria v. Garland, No. 21-1436.  The issue in the case as identified by SCOTUSBlog.com:

"Whether the court of appeals correctly determined that 8 U.S.C. 1252(d)(1) prevented the court from reviewing petitioner's claim that the Board of Immigration Appeals engaged in impermissible factfinding because petitioner had not exhausted that claim through a motion to reconsider."

 

The Fifth Circuit describes the facts of the case as follows:

 

"Santos, who is a transgender woman and is attracted to men, alleged that she was sexually assaulted by a neighbor in Guatemala at the age of 12 for being gay and asserted that she was likely to face persecution if she returned to Guatemala due to her sexual orientation and gender identity. The immigration judge (IJ) denied her application for withholding of removal, concluding that Santos’s prior assault was insufficient to establish past persecution. The IJ also denied Santos’s claim for relief under the CAT.  Santos appealed to the BIA.

The BIA dismissed her appeal. First, the BIA concluded that Santos’s allegation of sexual assault was sufficient to establish past persecution on account of membership in a particular social group. Consequently, Santos was entitled to a presumption of future persecution. However, the BIA ruled that the government had rebutted the presumption. The BIA also affirmed the IJ’s ruling that Santos had not established eligibility for relief under the  CAT. Finally, the BIA rejected an argument that the IJ ignored or failed to consider relevant evidence."

 

UPDATE (Oct. 4):  A Reuters report reviews the issues in the case.

 

KJ