Summary
The Supreme Court held that 8 U.S.C. § 1252(d)(1)'s exhaustion requirement is not jurisdictional and therefore is subject to waiver and forfeiture. The Court also held that the provision does not require noncitizens to seek discretionary administrative review, such as reconsideration by the Board of Immigration Appeals, before seeking judicial review. The judgment of the Fifth Circuit was vacated in part and the case was remanded.
Topics
Practice areas
Questions Presented
- Whether 8 U.S.C. § 1252(d)(1)'s exhaustion requirement is jurisdictional.
- Whether § 1252(d)(1) requires a noncitizen to seek discretionary reconsideration or reopening by the Board of Immigration Appeals before obtaining judicial review.
- Whether the Fifth Circuit could dismiss Santos-Zacaria's challenge for failure to seek Board reconsideration.
Holdings
- Section 1252(d)(1)'s requirement that a noncitizen exhaust administrative remedies available as of right before seeking review of a final removal order is not jurisdictional; it is a nonjurisdictional claim-processing rule.
- Section 1252(d)(1) requires exhaustion only of administrative remedies available as of right and therefore does not require a noncitizen to seek discretionary reconsideration or reopening by the Board of Immigration Appeals.
- The Fifth Circuit erred in treating § 1252(d)(1)'s exhaustion requirement as jurisdictional, and Santos-Zacaria had satisfied the provision without seeking discretionary Board reconsideration.
Key quotations
“We treat a rule as jurisdictional “only if Congress ‘clearly states’ that it is.”” (slip op. at 4)
“because §1252(d)(1) requires exhausting only remedies available “as of right,” it does not require exhausting discretionary review.” (slip op. at 12–13)
“The Government’s position presents a world of administrability headaches for courts, traps for unwary noncitizens, and mountains of reconsideration requests for the Board” (slip op. at 18)
Factual background
Santos-Zacaria, a transgender woman from Guatemala who is attracted to men, testified that she fled Guatemala after suffering physical harm and death threats. After a prior removal in 2008, she returned to the United States in 2018 and sought protection from removal, including withholding of removal. The Board of Immigration Appeals found past persecution but determined that the resulting presumption of future persecution had been rebutted, and Santos-Zacaria challenged that determination as impermissible factfinding by the Board.
Procedural history
An Immigration Judge reinstated Santos-Zacaria's prior removal order and denied withholding of removal. The Board of Immigration Appeals affirmed, concluding that although Santos-Zacaria had suffered past persecution, the presumption of future persecution was rebutted. The Fifth Circuit dismissed her impermissible-factfinding challenge sua sponte, reasoning that 8 U.S.C. § 1252(d)(1) imposed a jurisdictional exhaustion requirement and that she had not sought reconsideration by the Board. The Supreme Court vacated that portion of the judgment and remanded.
Remand instructions
The portion of the Fifth Circuit's judgment dismissing Santos-Zacaria's petition for review is vacated, and the case is remanded for further proceedings consistent with the Supreme Court's opinion.