Although the court was ruling on a procedural question, the language in the opinion was notable given all the anti-trans measures being adopted in Republican-led states across the country. Data compiled by the American Civil Liberties Union shows that as of May 2, more than 470 anti-LGBTQ bills have been introduced in state legislatures so far in 2023.
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The court’s opinion is also noteworthy because it referred to Santos-Zacaria as a “non-citizen,” rather than as an “illegal alien,” a dehumanizing term that has been used in previous conservative opinions. The only mention of “alien” in Alito’s 100-word concurring opinion was a direct quote from a previous ruling.
As MSNBC legal analyst Joyce Vance tweeted:
Interestingly, the use of the proper pronouns wasn’t noted in news reports until Thursday, a day after the ruling. The Associated Press, CNN and The Guardian made no mention of this in their initial reports on the ruling on Wednesday.
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This opinion has no bearing on Title 42, the pandemic-era restrictions on migration to the U.S., which ended on Thursday. CBS News reported that President Joe Biden has finalized restrictions on asylum to ramp up swift deportation of migrants who cross the U.S.-Mexico border, which has upset progressives.
Essentially, the court’s opinion removes a procedural barrier for a non-U.S. citizen to appeal a denial of protection-from-removal decision. It means that Santos-Zacaria can now appeal her deportation order to the 5th U.S. Circuit Court of Appeals. But she has no guarantee of success before the nation’s most conservative appellate court.
CNN provided this background on how her case ended up before the Supreme Court:
Santos-Zacaria has already been removed from the US twice before and lost her bid before an immigration judge and before the board of immigration appeals. She sought to appeal her deportation before the 5th US Circuit Court of Appeals but was blocked from doing so when the court said she had not exhausted remedies available to her in the immigration proceedings.
The government argued that she had not made a clear case that she would be persecuted.
The AP notes that other appellate courts have ruled in favor of immigrants on the same issue. When there are conflicting appellate court decisions, the Supreme Court usually has to step in.
Santos-Zacaria previously testified that she was raped by a neighbor in the small town in which she was born and that residents threatened to kill her because of both her gender identity and her attraction to men, the AP reported.
After leaving Guatemala as a teenager, Santos-Zacaria made her way to the U.S., but her stay was brief and she was deported in 2008. She spent most of her time between 2008 and 2018 in Mexico, but decided to try to return to the U.S. after a Mexican gang raped and assaulted her. Today, she is threatened with deportation.
A 2022 State Department Human Rights Report on Guatemala found “significant human rights issues” in the Central American nation, including “crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, or intersex persons,” including abuse by police and “a lack of will on the part of police to fully investigate hate crimes and violence” against members of the LGBTQ community.