Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes cases granted review on October 3, 2022
Case Granted Review: Santos-Zacaria v. Garland, 21-1436
Santos-Zacaria v. Garland, 21-1436. This case concerns the exhaustion requirements for persons seeking review of the denial by the Board of Immigration Appeals of applications for withholding of removal. Petitioner Leon Santos-Zacaria filed a petition for review of a BIA denial, which the Fifth Circuit sua sponte dismissed in part for lack of jurisdiction pursuant to 8 U.S.C. §1252(d)(1). That provision requires a noncitizen to exhaust “all administrative remedies available to the alien as of right” before petitioning to a circuit court. The questions presented are: (1) whether §1252(d)(1)’s exhaustion requirement is jurisdictional or merely a mandatory claims processing rule that may be waived or forfeited; and (2) whether, to satisfy the exhaustion requirement, a noncitizen who challenges a new error introduced by the BIA must first ask the agency to exercise its discretion to reopen or reconsider.
Petitioner is a noncitizen who alleges past persecution and likely future persecution in her home country. She entered the United States and shortly thereafter was subject to removal proceedings instituted by the Department of Homeland Security. At an administrative proceeding in which she requested withholding of removal based on the alleged persecution, an immigration judge denied the application for withholding of removal, finding that she had not established past persecution and therefore was not entitled to a presumption of future persecution. On appeal to the BIA, the Board disagreed and concluded that there was evidence of past persecution, but the Board nevertheless dismissed the appeal because it determined that the resulting presumption of future persecution was rebutted. Petitioner appealed to the Fifth Circuit, arguing that the BIA should not have addressed whether the presumption had been rebutted in the first instance. The Fifth Circuit dismissed the appeal on jurisdictional grounds. 22 F.4th 570.
The Fifth Circuit held, sua sponte, that because petitioner had not exhausted administrative remedies as required by 8 U.S.C. §1252(d)(1), the court did not have appellate jurisdiction. Specifically, it determined that a petitioner alleging impermissible fact-finding by the Board must file a motion to reopen or reconsider to the Board in order to exhaust administrative remedies. Petitioner argues that procedural requirements such as exhaustion should only be considered jurisdictional if Congress clearly says so, citing to Supreme Court cases addressing exhaustion requirements for various other federal statutes. Petitioner points to other parts of the immigration statute that explicitly deny appellate jurisdiction, and the lack of such explicit reference here, as an indication that Congress did not intend for exhaustion to be jurisdictional. Petitioner also argues that even if the exhaustion requirement is jurisdictional, noncitizens are not required to file motions to reopen or reconsider BIA decisions in order to exhaust administrative remedies, relying on the statutory language that an alien must exhaust all administrative remedies “available to the alien as of right.” 8 U.S.C. §1252(d)(1). According to petitioner, because decisions to grant or deny motions to reopen or reconsider are discretionary, even as to meritorious motions, they are not available “as of right” to aliens.