Supreme Court Decides Santos-Zacaria v. Garland

On May 11, 2023, the U.S. Supreme Court decided Santos-Zacaria v. Garland, No. 21-1436, reversing the Fifth Circuit Court of Appeals and holding that the requirement that immigration petitioners challenging orders of removal exhaust administrative remedies before filing suit in federal court is not jurisdictional and, further, does not require those petitioners to exhaust discretionary forms of review.

Estrella Santos-Zacaria is a transgender woman who fled to the United States after facing persecution in her native Guatemala. When she was apprehended by immigration authorities, she sought protection from removal because she again faced likely persecution in Guatemala if she had to return there. The Board of Immigration Appeals (BIA) affirmed an immigration judge’s reinstatement of the removal order. When Santos-Zacaria filed a petition for review in the U.S. Court of Appeals for the Fifth Circuit, she argued that the BIA had impermissibly engaged in factfinding that only the immigration judge could perform. The Fifth Circuit sua sponte dismissed the petition for lack of jurisdiction, holding that she had failed to exhaust administrative remedies under 8 U.S.C. § 1252(d)(1) because she had not sought reconsideration of the BIA’s ruling.

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 Supreme Court reversed the Fifth Circuit and resolved a circuit split on two issues: (1) whether section 1252(d)(1)’s exhaustion requirement is jurisdictional; and (2) whether section 1252(d)(1) requires petitioners to seek discretionary forms of review, such as reconsideration before the Board of Immigration Appeals.

First, the Supreme Court held that section 1252(d)(1) is a nonjurisdictional claim-processing rule, not a jurisdictional requirement, because Congress had not “clearly state[d]” that exhaustion was a jurisdictional rule, and there was no other “unmistakable evidence” that Congress intended it to be so. In particular, the Court noted that nothing in the text of section 1252(d)(1) indicates that Congress intended for it to impose a jurisdictional requirement, in contrast with other immigration statutes that explicitly do impose jurisdictional rules.

Second, the Supreme Court held that even when it applies, section 1252(d)(1) does not require petitioners to exhaust discretionary forms of review, such as reconsideration before the BIA, because discretionary forms of review are not available “as of right.” Because the BIA has discretion in the first instance to grant or deny a motion for reconsideration before considering the merits of the request, reconsideration is not available “as of right” and is not required under Section 1252(d)(1).

Justice Jackson authored the opinion, which Chief Justice Roberts and Justices Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett joined. Justice Alito filed an opinion concurring in the judgment, which Justice Thomas joined.