# Santos-Zacaria v. Garland

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.
SUPREME COURT OF THE UNITED STATES
Syllabus
SANTOS-ZACARIA AKA SANTOS-SACARIAS v. GARLAND CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT 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.
Held:
1. Section 1252(d)(1)’s exhaustion requirement is not jurisdictional. Pp. 3–11.
(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.
(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.
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