Supreme Court Win Gives Hope to Transgender Immigrant, Clarifies Legal Requirements - McDermott Will & Emery

Supreme Court Win Gives Hope to Transgender Immigrant, Clarifies Legal Requirements


As a transgender woman, Estrella Santos-Zacaria faced relentless persecution in her home country of Guatemala. She fled to the United States after surviving sexual assaults, attacks, death threats and regular harassment because of her gender identity.

Following a removal order, Estrella had to leave the United States in 2018. She seeks relief from deportation so she can re-enter and remain in the country.


The Immigration and Nationality Act (INA) required Estrella to exhaust all administrative remedies before she could challenge the removal order in court.

An immigration judge denied her relief from removal in a decision so riddled with errors that the Board of Immigration Appeals (BIA) overturned its substantive reasoning. But the BIA denied her protection from removal anyway, finding new facts not identified by the immigration judge, which is contrary to governing law. Estrella thus petitioned the US Court of Appeals for the Fifth Circuit for review, contending that the BIA’s impermissible factfinding was procedurally and substantively erroneous.

The Fifth Circuit held that, because she had not raised this argument before the BIA in an optional motion to reconsider, she had not exhausted the administrative remedies as required by the INA. The court cited lack of jurisdiction and denied her petition for review.

Estrella’s loss in the Fifth Circuit highlighted two broader questions about the process:

  1. Was the INA’s exhaustion requirement jurisdictional (a question that lower courts had been divided over for years)?
  2. Was a noncitizen really required to file an optional motion to reconsider before she could seek judicial review in federal court?

For support, Estrella’s lawyer reached out to a McDermott pro bono team with vast experience in appellate and immigration cases.


Working in partnership with the Yale Supreme Court Clinic, Paul Hughes, Andrew Lyonsberg, Alex Boota, Emmett Witkovsky-Eldred and Charlie Seidell petitioned the Supreme Court of the United States to review Estrella’s case.

In addition to turning around the Fifth Circuit loss, the team aimed to resolve the questions about the exhaustion requirement. Establishing the correct rule of law would make the process more straightforward and allow thousands of noncitizens each year appropriate access to the federal courts.


In a unanimous decision, the Supreme Court handed down a complete victory for Estrella that will also ease the procedural burdens of immigrants trying to navigate complex bureaucracy without counsel.

The Supreme Court determined that the INA’s exhaustion requirement is a claims-processing rule rather than a jurisdictional requirement, and therefore it can be waived by the government. Separately, the Court concluded that a noncitizen does not need to file a motion to reconsider before the BIA in order to meet the exhaustion requirement.


For years, courts had referenced old case law to determine that the INA’s exhaustion requirement was a jurisdictional issue. Estrella’s McDermott team researched and applied newer case law to fortify their position and make a strong case before the Supreme Court. They particularly focused on principles that had been adopted in other areas of administrative law but had never been applied in the immigration context.

The Court adopted the novel arguments just as the team framed them.

Key to the success was the McDermott team’s understanding of the justices’ disparate perspectives and ability to structure their arguments to appeal to a wide range of interests.

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