Santos-Zacaria v. Garland

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Leon Santos-Zacaria v. Merrick B. Garland, Attorney General  (2023) 
Supreme Court of the United States

Note: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.



No. 21–1436. Argued January 17, 2023—Decided May 11, 2023

Petitioner Leon Santos-Zacaria (who goes by the name Estrella) is a noncitizen in removal proceedings. She sought protection from removal, which an Immigration Judge denied. Santos-Zacaria appealed to the Board of Immigration Appeals, which upheld the Immigration Judge’s decision. She then filed a petition for review in the Fifth Circuit under 8 U. S. C. §1252, alleging that the Board had impermissibly engaged in factfinding that only the Immigration Judge could perform. The Fifth Circuit dismissed Santos-Zacaria’s petition in part, finding that she had not satisfied §1252(d)(1)’s exhaustion requirement. Section 1252(d)(1) provides that “[a] court may review a final order of removal only if … the alien has exhausted all administrative remedies available to the alien as of right.” The Fifth Circuit raised the exhaustion issue sua sponte based on its characterization of §1252(d)(1)’s exhaustion requirement as jurisdictional. And the Fifth Circuit concluded that Santos-Zacaria failed to exhaust because she failed to raise her impermissible-factfinding claim to the Board in a motion for reconsideration before filing her petition for judicial review.


1. Section 1252(d)(1)’s exhaustion requirement is not jurisdictional. Pp. 3–11.

(a) A “jurisdictional” prescription sets the bounds of the “court’s adjudicatory authority,” Kontrick v. Ryan, 540 U. S. 443, 455, while nonjurisdictional rules govern how courts and litigants operate within those bounds. The “jurisdictional” tag carries potentially “[h]arsh consequences.” Fort Bend County v. Davis, 587 U. S. ___, ___. For example, courts must enforce jurisdictional rules sua sponte, even in the face of a litigant’s forfeiture or waiver. Hamer v. Neighborhood Housing Servs. of Chicago, 583 U. S. 17, ___–___. To ensure that courts impose such consequences only when Congress unmistakably has so instructed, a rule is treated as jurisdictional “only if Congress ‘clearly states’ that it is.” Boechler v. Commissioner, 596 U. S. ___, ___. Pp. 3–4.

(b) Section 1252(d)(1) lacks the clear statement necessary to qualify as jurisdictional. First, exhaustion requirements are quintessential claim-processing rules, designed to promote efficiency in litigation. Treating an exhaustion requirement as jurisdictional would disserve that very interest. Second, §1252(d)(1)’s language differs substantially from more clearly jurisdictional language in related statutory provisions. Elsewhere, including in provisions enacted at the same time and in the same section as §1252(d)(1), Congress specified that “no court shall have jurisdiction” to review certain matters. See, e.g., §§1252(a)(2)(A), (a)(2)(B), (a)(2)(C), 1182(a)(9)(B)(v), (d)(3)(B)(i). Taken together, these two features of §1252(d)(1) establish that it is not clearly jurisdictional. Pp. 4–7.

(c) Given the clear-statement rule, the Government offers no persuasive reason to treat §1252(d)(1) as jurisdictional. First, merely that a statute addresses the “court” and limits “review” does not necessarily mean the statute governs the court’s jurisdiction. Second, the Government fails to show that §1252(d)(1) clearly carried forward any understanding that a prior version of §1252(d)(1) (former §1105a(c)) was jurisdictional. Finally, §1252(d)(1)’s placement within §1252 is insufficient to establish that §1252(d)(1) is clearly jurisdictional. Pp. 7–11.

2. Section 1252(d)(1) does not require noncitizens to request discretionary forms of review, like reconsideration of an unfavorable Board of Immigration Appeals determination. Pp. 11–18.

(a) Section 1252(d)(1) requires exhausting only remedies “available … as of right.” In the context relevant here—review of a legal claim—that phrase means review that is guaranteed, not discretionary. Reconsideration by the Board, however, is discretionary. Board reconsideration is therefore not available “as of right,” and §1252(d)(1) does not require a noncitizen to pursue it. Pp. 11–13.

(b) The Government cannot show that exhausting remedies “available … as of right” requires seeking Board reconsideration. The Government emphasizes a noncitizen’s right to file a motion to reconsider. But the right to request discretionary review does not make a remedy available as of right. Nor does §1252(d)(1) draw a distinction, suggested by the Government, between those remedies made discretionary by statute and those made so by regulation. In addition, although the decision whether to grant reconsideration is reviewable for abuse of discretion, it remains a matter of discretion all the same. Finally, if seeking reconsideration qualified as exhausting a remedy “available … as of right,” the statutory scheme would become incoherent. Noncitizens would need to seek reconsideration in every case. Yet the statute is designed around pursuing judicial review and agency reconsideration in parallel. The Board would be flooded with reconsideration motions that noncitizens would not otherwise file. And courts would be flooded with pre-reconsideration petitions for review that, under the Government’s interpretation, would be unexhausted and therefore pointless. Pp. 13–17.

(c) Alert to the problems with requiring noncitizens to always seek reconsideration for exhaustion purposes, the Government instead would require seeking reconsideration only sometimes: when the noncitizen is raising an issue not previously presented to the agency. But seeking reconsideration does not qualify as a remedy “available … as of right” sometimes and not others. Instead, it does not qualify at all. The Government’s approach, moreover, would not fix the problem of producing pointless, unexhausted petitions for review. And it would introduce practical difficulties for courts, noncitizens, and the Board. Pp. 17–18.

22 F. 4th 570, vacated in part and remanded.

Jackson, J., delivered the opinion of the Court, in which Roberts, C. J., and Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Alito, J., filed an opinion concurring in the judgment, in which Thomas, J., joined.
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