Santos-Zacaria v. Garland

• Decision Date: 11 May 2023
• Docket Number: 21-1436
• Parties: LEON SANTOS-ZACARIA aka LEON SANTOS- SACARIAS, PETITIONER v. MERRICK B. GARLAND, ATTORNEY GENERAL
• Court: U.S. Supreme Court

1

598 U.S.___

LEON SANTOS-ZACARIA aka LEON SANTOS- SACARIAS, PETITIONER v. MERRICK B. GARLAND, ATTORNEY GENERAL

No. 21-1436

United States Supreme Court

May 11, 2023

Argued January 17, 2023

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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.

(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.

OPINION

JACKSON, JUSTICE

Under 8 U.S.C. §1252(d)(1), a noncitizen who seeks to challenge an order of removal in court must first exhaust certain administrative remedies. This case presents two questions regarding that statutory provision. For the reasons explained below, we hold that §1252(d)(1) is not jurisdictional. We hold further that a noncitizen need not request discretionary forms of administrative review, like reconsideration of an unfavorable Board of Immigration Appeals determination, in order to satisfy §1252(d)(1)'s exhaustion requirement.^[1]

I

Petitioner Leon Santos-Zacaria (who goes by the name Estrella) fled her native Guatemala in her early teens. She has testified that she left that country, and fears returning, because she suffered physical harm and faced death threats as a transgender woman who is attracted to men.

Santos-Zacaria eventually sought refuge in the United States. Her first stay in the country was brief, and she was removed by immigration authorities in 2008. In 2018, she returned and was apprehended again by immigration authorities.

At that point, Santos-Zacaria sought protection from removal, including withholding of removal based on the likelihood she would be persecuted in Guatemala. See 8 U.S.C. §1231(b)(3)(A). An Immigration Judge within the Department of Justice entered an order reinstating Santos-Zacaria's prior removal order and denying the protection she sought.

On appeal within the Department, the Board of Immigration Appeals upheld the Immigration Judge's denial of withholding of removal. The Board agreed with Santos-Zacaria in part, determining that she had suffered past persecution in Guatemala and was therefore entitled to a presumption of future persecution. But the Board found that this presumption was rebutted (which was an issue that the Immigration Judge had not reached).

Santos-Zacaria then filed a petition for review in the U.S. Court of Appeals for the Fifth Circuit under 8 U.S.C. §1252. Her petition contended, among other things, that when the Board concluded that the presumption of future persecution was rebutted, it had impermissibly engaged in factfinding that only the Immigration Judge could perform.

In a 2-to-1 decision, the Court of Appeals dismissed Santos-Zacaria's impermissible-factfinding challenge for lack of jurisdiction, on the ground that she had failed to exhaust administrative remedies under §1252(d)(1). 22 F. 4th 570, 573 (2022). The Government had not raised exhaustion, but the Court of Appeals did so sua sponte because it characterized §1252(d)(1) as establishing a jurisdictional requirement. The court further held that, because Santos-Zacaria had not raised the impermissible-factfinding challenge in a motion for reconsideration before the Board prior to filing her petition with the court, she had not satisfied §1252(d)(1)'s exhaustion requirement.

There is disagreement among the Courts of Appeals concerning the two issues presented in this case: (1) whether §1252(d)(1)'s exhaustion requirement is jurisdictional,^[2] and (2) whether §1252(d)(1) requires seeking discretionary administrative review, like reconsideration by the Board of Immigration Appeals.^[3] We granted certiorari to resolve these conflicts. 598 U.S.___ (2022).

II

Section 1252(d)(1) provides: "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...