Santos-Zacaria v. Garland: Noncitizens need not file motion to reconsider with Board of Immigration Appeals

Even though 8 U.S.C. Sec. 1252 states that a noncitizen who seeks to challenge an order of removal in court must first exhaust certain administrative remedies, this requirement is not jurisdictional, and a noncitizen need not request discretionary forms of administrative review before proceeding to court, the U.S. Supreme Court held May 11 in Santos-Zacaria v. Garland.  
 
Leon Santos-Zacaria, a citizen of Guatemala, entered the U.S. illegally.  She was apprehended by immigration authorities, who sought her removal.
 
Santos-Zacaria sought protection from removal by claiming she would be persecuted if returned to Guatemala.
 
An Immigration Judge denied her claim.  The Board of Immigration Appeals upheld that decision.
 
Santos-Zacaria then filed a petition for review in the Fifth Circuit.  
 
The Fifth Circuit dismissed her appeal, sua sponte, for lack of jurisdiction, since Santos-Zacaria had not filed a motion for reconsideration before the Board of Immigration Appeals.
8 U.S.C. Sec. 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 granted cert. to resolve a circuit split on this issue.
 
Holding
 
The Court held that Sec. 1252(d)(1) is not jurisdictional, in an opinion joined by seven justices with two others concurring.
 
“We treat a rule as jurisdictional only if Congress clearly states that it is”, the Court said.  
 
The statute at issue here “lacks the clear statement necessary to qualify as jurisdictional”, the Court said.
 
The statute is a “claim-processing rule” which merely requires parties to take certain procedural steps at certain specified times, the Court said.
 
The “provision’s language differs substantially from more clearly jurisdictional language in related statutory provisions”, the Court said.  “Elsewhere in the laws governing immigration cases, Congress specified that ‘no court shall have jurisdiction’ to review certain matters.”  
 
But Section 1252(d)(1) does not contain such language, the Court said.
 
“Because Section 1252(d)(1)’s exhaustion requirement is not jurisdictional, it is subject to waiver and forfeiture”, the Court said.  “The Court of Appeals erred in holding otherwise.”
 
The Court further held that Section 1252(d)(1) did not require Santos-Zacaria to seek reconsideration from the Board of Immigration Appeals, before filing her petition in court.
 
“Whether the exhaustion for Sec. 1252(d)(1) purposes requires seeking Board reconsideration turns on the meaning of ‘remedies available as of right’”, the Court said.
 
“[I]t is well established that a remedy is not available ‘as of right’ if it is discretionary”, the Court said.  “[T]he phrase means review that is guaranteed, not contingent on permission or discretion.”
 
The Court noted that its own certiorari review is discretionary, not a matter of right.
 
The Board’s reconsideration and reopening of cases is discretionary by regulation, the Court said.  Only if the motion to reconsider is granted does the Board proceed to make a decision on reconsideration to affirm, reverse or modify its decision.
 
“Because reconsideration (like reopening) is a discretionary form of review, it is not available to the noncitizen ‘as of right’”, the Court concluded.  “Section 1252(d)(1) therefore does not require a noncitizen to pursue it.”