on May 16, 2023
at 12:13 pm
The justices issued their opinion in Santos-Zacaria v. Garland on May 11. (Thomas Hawk via Flickr)
In an opinion released on Thursday, the Supreme Court ruled that noncitizens subject to deportation do not have to ask the Board of Immigration Appeals to reconsider its allegedly erroneous decisions before seeking judicial review in the federal courts of appeals. The case, Santos-Zacaria v. Garland, arose from the government’s efforts to deport Estrella Santos-Zacaria, a native of Guatemala. She had entered the United States unlawfully and was deported to Guatemala in 2008 and 2012.
In 2018, she once again entered the country unlawfully and was caught. Santos-Zacaria, sought to avoid deportation by arguing (among other things) that she was likely to be persecuted in Guatemala because she is a transgender woman.
An immigration judge rejected Santos-Zacaria’s claims and reinstated her original deportation order. The Board of Immigration Appeals upheld that decision. It ruled that Santos-Zacaria had successfully established that she suffered past persecution in Guatemala and was accordingly entitled to a presumption of future persecution. However, the BIA concluded, she was nonetheless not entitled to relief because the government had successfully rebutted this presumption.
Santos-Zacaria appealed to the U.S. Court of Appeals for the 5th Circuit, where she argued that the BIA based its future persecution determination on facts it was not permitted to find. A divided three-judge panel rejected these arguments and dismissed her case, concluding that she had failed to pursue all available administrative remedies as required by 8 U.S.C. § 1252(d)(1), which allows courts to review final deportation orders only when a noncitizen has “exhausted all available administrative remedies available to” her “as of right.”
Even though the government had not raised the exhaustion issue itself, the 5th Circuit did so on its own initiative and characterized it as a jurisdictional requirement. In other words, the two-member majority found that Santos-Zacaria was required to ask the BIA to reconsider its future persecution determination before seeking judicial review, and that her failure to do so deprived the 5th Circuit of the power to hear her claim. The core legal issue when the case reached the Supreme Court was whether Section 1252(d)(1) requires noncitizens to petition the BIA to reconsider its alleged errors before seeking review in the federal courts of appeals.
On Thursday, the court reversed the 5th Circuit in a largely unified opinion by Justice Ketanji Brown Jackson. It first found that Section 1252(d)(1)’s exhaustion requirement is not jurisdictional. Jackson noted that exhaustion provisions are typically intended to promote the efficient processing of claims, not to demarcate the boundaries of the courts’ power. Moreover, she observed that treating exhaustion provisions as jurisdictional would actually undermine the very efficiency Congress intends them to promote by forcing litigants to waste time in nonjudicial proceedings that may be pointless, slow, or contrary to their interests.
Jackson also emphasized that jurisdictional provisions can produce several undesirable results. They can impose harsh consequences on litigants that courts have little equitable authority to mitigate, can waste a substantial amount of expended resources when a jurisdictional flaw is discovered late in the litigation process, and can require dismissal of claims even in the face of a litigant’s forfeiture or waiver. Accordingly, courts should not deem a provision jurisdictional without a clear statutory statement or other persuasive evidence. Section 1252(d)(1) contains no such statement, and the court found that the government failed to offer any persuasive evidence. The court’s conclusion is not entirely surprising. It has moved to clarify (and narrow) its interpretation of “jurisdictional” provisions in recent years, and the justices were clearly skeptical of the government’s arguments on this issue during oral arguments on Jan. 17.
Second, the court found that Section 1252(d)(1) does not require noncitizens to seek reconsideration of unfavorable BIA decisions before pursuing judicial review in the courts of appeals. Section 1252(d)(1) requires noncitizens to exhaust administrative remedies that are “available [to them] … as of right.” The government insisted this exhaustion requirement applied because Santos-Zacaria had a “right” to ask the BIA to reconsider its future persecution determination. The justices appeared deeply skeptical of this claim during oral argument, and that skepticism found its way into the court’s opinion.
First and foremost, Jackson noted that noncitizens have no “right” to reconsideration by the BIA. Such review is discretionary rather than guaranteed (much like the Supreme Court’s own certiorari process) and Section 1252(d)(1) does not require noncitizens to pursue it. The court likewise rejected the government’s assertion that reconsideration is “available … as of right” because it is subject to judicial review for abuse of discretion. The prospect that the BIA can abusively refuse a reconsideration request does not change the nature of its decision. It only means that Congress has imposed limits on the amount of discretion the BIA is allowed to exercise in considering those requests.
Finally, the court noted that the government’s reading of Section 1252(d)(1) would render the statutory scheme incoherent. From the court’s perspective, Congress granted noncitizens latitude to pursue judicial review and BIA reconsideration along parallel tracks if they so choose. Contrary to Congress’ intent, the government’s reading would require noncitizens to seek reconsideration in every case before seeking review in federal court. This would cause noncitizens to file reconsideration requests neither they nor the BIA want. Moreover, the government’s position would result in the courts being flooded with premature review petitions. If noncitizens file reconsideration motions and judicial review petitions at the same time—something Section 1252(d)(1) permits—the latter would always be unexhausted because the former would never be resolved in advance. Jackson said the court “decline[s] to interpret the statute to be so at war with itself.”
All nine justices signed on to the result here, and seven signed on to its reasoning. Justice Samuel Alito, in an opinion joined by Justice Clarence Thomas, disagreed with one aspect of the majority opinion. In a one-paragraph concurrence, Alito agreed that Section 1252(d)(1) did not require Santos-Zacaria to file a discretionary reconsideration motion with the BIA. But he would have left the matter there. He read the majority’s opinion as finding that Section1252(d)(1) is not jurisdictional even with respect to those administrative remedies that are “available … as of right.” Reaching such a conclusion was unnecessary, in his view.