Santos-Zacaria v. Garland
598 U. S. ____ (2023) (2023)
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Rule of Law:
The administrative exhaustion requirement in 8 U.S.C. §1252(d)(1) is a non-jurisdictional claim-processing rule. Furthermore, it does not require a noncitizen to seek discretionary forms of review, such as a motion to reconsider before the Board of Immigration Appeals (BIA), because such remedies are not "available to the alien as of right."
Facts:
- Leon Santos-Zacaria, a transgender woman who goes by Estrella, is a native of Guatemala.
- She fled Guatemala in her early teens, stating she suffered physical harm and faced death threats due to her identity.
- After a brief stay in the United States, she was removed by immigration authorities in 2008.
- In 2018, Santos-Zacaria returned to the U.S. and was apprehended again by immigration authorities.
- She sought protection from removal, including withholding of removal, based on the likelihood of persecution if she were to return to Guatemala.
Procedural Posture:
- An Immigration Judge reinstated Santos-Zacaria’s prior removal order and denied her application for protection.
- Santos-Zacaria, the appellant, appealed the Immigration Judge's decision to the Board of Immigration Appeals (BIA).
- The BIA upheld the denial of withholding of removal, finding that although Santos-Zacaria was entitled to a presumption of future persecution, that presumption had been rebutted.
- Santos-Zacaria, as petitioner, filed a petition for review in the U.S. Court of Appeals for the Fifth Circuit, challenging the BIA's decision.
- The Fifth Circuit, acting on its own initiative (sua sponte), dismissed part of her petition for lack of jurisdiction, holding that §1252(d)(1) was jurisdictional and she had failed to exhaust her remedies by not filing a motion for reconsideration with the BIA.
- The U.S. Supreme Court granted certiorari to review the Fifth Circuit's decision.
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Issue:
First, is the administrative exhaustion requirement in 8 U.S.C. §1252(d)(1) a jurisdictional rule that courts must raise sua sponte? Second, does §1252(d)(1)'s requirement to exhaust all administrative remedies "available to the alien as of right" obligate a noncitizen to file a motion for reconsideration with the Board of Immigration Appeals before seeking judicial review?
Opinions:
Majority - Jackson, J.
No, the administrative exhaustion requirement in 8 U.S.C. §1252(d)(1) is not a jurisdictional rule, and no, it does not require a noncitizen to file a motion for reconsideration before seeking judicial review. The exhaustion requirement is a non-jurisdictional claim-processing rule because Congress did not provide a clear statement that it should be treated as jurisdictional. Exhaustion requirements are quintessentially non-jurisdictional, and the language of §1252(d)(1) contrasts sharply with nearby statutory provisions where Congress explicitly used jurisdictional language like 'no court shall have jurisdiction.' Because it is not jurisdictional, it is subject to waiver and forfeiture. Furthermore, the statute only requires exhaustion of remedies 'available... as of right.' A remedy is not available 'as of right' if it is discretionary. Since the BIA's decision to grant reconsideration is discretionary by regulation, a noncitizen is not required to file such a motion to satisfy §1252(d)(1).
Concurring in the judgment - Alito, J.
I would not decide the first issue, but the answer to the second issue is no. The Court correctly holds that 8 U.S.C. §1252(d)(1) does not require a noncitizen to file a motion for reconsideration because the decision to grant such a motion is discretionary, not a remedy 'available... as of right.' This determination fully disposes of the case. Therefore, it is unnecessary to decide the broader question of whether §1252(d)(1) is a jurisdictional requirement for the administrative remedies to which it does apply.
Analysis:
This decision significantly clarifies immigration procedure by resolving a circuit split on two key issues. By classifying §1252(d)(1) as a non-jurisdictional claim-processing rule, the Court aligns immigration law with its broader jurisprudence narrowing the scope of jurisdictional rules, meaning the government can forfeit an exhaustion defense if not timely raised. The ruling also streamlines the appellate process for noncitizens by clarifying they do not need to file discretionary (and often futile) motions for reconsideration with the BIA before seeking judicial review. This prevents a procedural trap and ensures more direct access to federal courts for noncitizens challenging removal orders.
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