Supreme Court decision is a victory for transgender and immigrant justice
Estrella Santos-Zacaria has come a long way from San Pedro Soloma, Guatemala, a village nestled in the Sierra de los Cuchumatanes mountains and known as El Valle del Ensueño, or the Valley of Dreams.
For years, Santos-Zacaria dreamed desperately – of escape.
In 2008, she attempted to immigrate to the U.S., fearing that the violence she had experienced because of her sexual orientation and identity as a transgender woman could get her killed. Since then, she has been deported twice.
But in January, her case made its way to the U.S. Supreme Court. And on May 11, Santos-Zacaria won the right to further challenge her deportation – and the potential to start a new life in the U.S. Other immigrants facing deportation could benefit, as well, because the ruling helps clear a procedural obstacle for noncitizens seeking judicial review of rulings by the Board of Immigration Appeals (BIA), an administrative appellate body within the U.S. Department of Justice.
The Supreme Court’s decision, authored by Justice Ketanji Brown Jackson, also marks a notable step in its acknowledgment of transgender people. Santos-Zacaria’s chosen name, Estrella, was referenced alongside her former given name, and her proper pronouns were used throughout.
The case was the first initiated by the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative (SIFI) to reach the U.S. Supreme Court. SIFI provides pro bono legal representation to asylum seekers who are being held at immigrant detention centers in the Deep South.
“What Estrella’s won is the right to keep fighting,” said Peter Isbister, senior lead attorney for SIFI. “And that would not have been possible without her team of volunteer attorneys. Cases and clients like Estrella are why SIFI believes so deeply in having a pro bono program.”
‘Living in fear’
In the video: Estrella Santos-Zacaria, a transgender woman from Guatemala seeking asylum in the U.S., talks about the number of setbacks over the past few years.
Santos-Zacaria hasn’t set foot in Guatemala for about seven years. That was for a week, to bury her father. She was constantly looking over her shoulder.
“I was nervous the entire time,” she said. “I couldn’t be at peace, and after a couple of days I told my mom that I wanted to leave. But she asked me to stay for the funeral, so I stayed. Then, I left quickly because I couldn’t stop thinking about my rapist.”
From an early age, Santos-Zacaria knew that the gender she had been assigned at birth didn’t reflect who she was. By age 7, she remembers hunting through her sister’s clothing, reaching for dresses and holding them up against her chest to see how they flattered her. Her sister encouraged her, telling Santos-Zacaria how beautiful she looked dolled up in her clothes and shoes.
“Now that I think about it, I laugh, because my feet could barely fit in them,” she said.
Santos-Zacaria’s family was loving, though they may not have been initially ready to accept her true identity. Her brothers teased her, annoyed that she would rather play with her sister’s dolls than join them on the soccer field.
“I knew I was different, and my mother knew it too. I remember one time she said to me, ‘I would’ve loved if you were a woman.’”
Outside of their home, things were more complicated.
Santos-Zacaria found a friend in a neighborhood boy who, like her, also felt attracted to boys. They played together often in the lush green fields that surrounded the village. Then one day he moved away. She felt lonely, unsure that she would find another friend who shared the same feelings. Sometime later, when another boy asked her to join him for a game in the fields, she agreed.
“That’s when I was raped for the first time,” Santos-Zacaria said. “He said he would kill my mom and my family if I ever said something. I didn’t want anything bad to happen to them, so I just kept it to myself.”
Her mother noticed a change. When she asked why Santos-Zacaria didn’t want to go outside, she feigned illness or invented other excuses. She became frightened and withdrawn. By the time she turned 16, she had left Soloma for fear her attacker might make good on his threats. She headed for the northwestern border of Guatemala and entered Chiapas, Mexico, a state that in recent years has faced an onslaught of violence fueled by organized crime. Chiapas has become a waystation for immigrants and people who are seeking asylum because of political turmoil, persecution and a paucity of jobs.
Under threat of violence, and barely earning enough money to survive, Santos-Zacaria grew more fearful.
“I suffered a lot. I was assaulted, raped,” she said. “I was brutally attacked last year – to the point that the people who witnessed the attack thought I was going to die. After that, I asked my boss to allow me to go home before dark every day because my attacker was out and still looking for me. I couldn’t finish my shifts, so my boss reduced my salary.
“I can’t imagine going back to Chiapas or Guatemala and living in fear all the time.”
Detained and deported
Santos-Zacaria first attempted to enter the U.S. in 2008, when she was 17. That same year, she was deported by U.S. Immigration and Customs Enforcement (ICE). In 2018, she tried again and was detained at LaSalle Detention Facility in Jena, Louisiana, one of nearly a dozen facilities across the Southeast where SPLC attorneys provide free legal services to people in detention.
Isbister, the SPLC attorney, contacted Benjamin Osorio, a private immigration attorney who had worked as pro bono counsel on prior SPLC cases. Osorio, who previously lived in Guatemala, took on the case after learning more about Santos-Zacaria’s background. He said he understood how a lack of government resources and corruption could make it difficult for her to live safely there.
“I knew that she had suffered horrific sexual violence and discrimination on account of both her gender identity and sexual orientation,” Osorio said. “The country is not as progressive on LGBTQ+ issues.”
Santos-Zacaria is of Indigenous heritage, and her first language is Q’anjob’al, a branch of the Mayan language. “In some of these places they only speak Mayan languages, and there’s still racism against Indigenous people in Guatemala. Her going to the police and seeking active protection – I don’t think there’s a chance in the world that would happen,” Osorio said.
Osorio took on Santos-Zacaria’s case in the fall of 2018. He fought her removal and lost, then appealed to the Board of Immigration Appeals. There, he lost again. While the BIA noted that Santos-Zacaria had endured persecution in Guatemala, it argued that conditions in the country had changed since then. ICE deported Santos-Zacaria in late 2019. She returned to Chiapas and waited for a glimmer of hope.
Eventually, she got it.
‘Safety is what I’ve always wanted’
Osorio brought the case before the U.S. Court of Appeals for the 5th Circuit, arguing that the BIA had created a new legal error in its decision by finding changed circumstances, a factual finding the immigration judge never made and something the BIA lacks authority to address. But because Osorio hadn’t raised this issue before the BIA, the appellate court dismissed the appeal.
The case, in essence, turned on a procedural issue – specifically whether Santos-Zacaria had exhausted her legal remedies before appealing to the 5th Circuit.
“The issue at the heart of the case was whether it was possible to go to the Circuit Court of Appeals without filing a motion for reconsideration at the Board of Immigration Appeals,” Isbister said.
Osorio kept fighting. He partnered with Paul Hughes, a Supreme Court attorney at McDermott Will & Emery, to take the case to the nation’s highest court. In May, it delivered a unanimous decision in Santos-Zacaria’s favor.
The Supreme Court ruled that although noncitizens are required to exhaust all administrative options, including immigration courts, before moving to the Circuit Court of Appeals, the Circuit Court should have more flexibility when it hears a case. The decision allows the Circuit Court to consider more issues than it previously had jurisdiction over and allows appellants to have more access to judicial review, Osorio said.
“I was shocked – just based off numbers [of cases appealed to the Supreme Court]. You don’t have a right to have your case heard by the Supreme Court,” he said.
In fact, the court receives more than 7,000 appeals each year and chooses to accept, at most, about 150 cases.
Santos-Zacaria returned to the U.S. in late summer, living in Southern California where she awaits her next opportunity at the 5th Circuit. She feels more settled, living nearby her two brothers.
“I am beyond happy. We get together and I just feel safe. Safety is what I’ve always wanted and looked for. It feels good to socialize with the LGBTQ community and to feel support from people.”
Photo at top: A U.S. Supreme Court ruling has cleared the way for Estrella Santos-Zacaria to challenge her deportation. (Credit: Philip Cheung)
