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SUPREME COURT OF THE UNITED STATES
_________________
No. 21–1436
_________________
LEON SANTOS-ZACARIA aka LEON SANTOS-SACARIAS,
PETITIONER
v. MERRICK B. GARLAND, ATTORNEY GENERAL
on writ of certiorari to the united states
court of appeals for the fifth circuit
[May 11, 2023]
Justice Jackson delivered the opinion of the
Court.
Under 8 U. S. C. §1252(d)(1), a
noncitizen who seeks to challenge an order of removal in court must
first exhaust certain administrative remedies. This case presents
two questions regarding that statutory provision. For the reasons
explained below, we hold that §1252(d)(1) is not jurisdictional. We
hold further that a noncitizen need not request discretionary forms
of administrative review, like reconsideration of an unfavorable
Board of Immigration Appeals determination, in order to satisfy
§1252(d)(1)’s exhaustion requirement.[
1]
I
Petitioner Leon Santos-Zacaria (who goes by
the name Estrella) fled her native Guatemala in her early teens.
She has testified that she left that country, and fears returning,
because she suffered physical harm and faced death threats as a
transgender woman who is attracted to men.
Santos-Zacaria eventually sought refuge in the
United States. Her first stay in the country was brief, and she was
removed by immigration authorities in 2008. In 2018, she returned
and was apprehended again by immigration authorities.
At that point, Santos-Zacaria sought protection
from removal, including withholding of removal based on the
likelihood she would be persecuted in Guatemala. See 8
U. S. C. §1231(b)(3)(A). An Immigration Judge within the
Department of Justice entered an order reinstating Santos-Zacaria’s
prior removal order and denying the protection she sought.
On appeal within the Department, the Board of
Immigration Appeals upheld the Immigration Judge’s denial of
withholding of removal. The Board agreed with Santos-Zacaria in
part, determining that she had suffered past persecution in
Guatemala and was therefore entitled to a presumption of future
persecution. But the Board found that this presumption was rebutted
(which was an issue that the Immigration Judge had not
reached).
Santos-Zacaria then filed a petition for review
in the U. S. Court of Appeals for the Fifth Circuit under 8
U. S. C. §1252. Her petition contended, among other
things, that when the Board concluded that the presumption of
future persecution was rebutted, it had impermissibly engaged in
factfinding that only the Immigration Judge could perform.
In a 2-to-1 decision, the Court of Appeals
dismissed Santos-Zacaria’s impermissible-factfinding challenge for
lack of jurisdiction, on the ground that she had failed to exhaust
administrative remedies under §1252(d)(1). 22 F. 4th 570, 573
(2022). The Government had not raised exhaustion, but the Court of
Appeals did so
sua sponte because it characterized
§1252(d)(1) as establishing a jurisdictional requirement. The court
further held that, because Santos-Zacaria had not raised the
impermissible-factfinding challenge in a motion for reconsideration
before the Board prior to filing her petition with the court, she
had not satisfied §1252(d)(1)’s exhaustion requirement.
There is disagreement among the Courts of
Appeals concerning the two issues presented in this case: (1)
whether §1252(d)(1)’s exhaustion requirement is
jurisdictional,[
2] and (2)
whether §1252(d)(1) requires seeking discretionary administrative
review, like reconsideration by the Board of Immigration
Appeals.[
3] We granted
certiorari to resolve these conflicts. 598 U. S. ___
(2022).
II
Section 1252(d)(1) provides: “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 first question before us is whether this provision
ranks as jurisdictional. We hold that it does not.
A
A “jurisdictional” prescription sets the
bounds of the “court’s adjudicatory authority.”
Kontrick v.
Ryan,
540 U.S.
443, 455 (2004). By contrast, nonjurisdictional rules govern
how courts and litigants operate within those bounds.
Claim-processing rules, for example, “seek to promote the orderly
progress of litigation by requiring that the parties take certain
procedural steps at certain specified times.”
Henderson v.
Shinseki,
562 U.S.
428, 435 (2011).
“Harsh consequences attend the jurisdictional
brand.”
Fort Bend County v.
Davis, 587 U. S.
___, ___ (2019) (slip op., at 7) (alteration and internal quotation
marks omitted). For example, because courts are not able to exceed
limits on their adjudicative authority, they cannot grant equitable
exceptions to jurisdictional rules. See
Boechler v.
Commissioner, 596 U. S. ___, ___ (2022) (slip op., at
3). Jurisdictional objections also can be raised at any time in the
litigation.
Hamer v.
Neighborhood Housing Servs. of
Chicago, 583 U.S. 17, ___–___ (2017) (slip op., at 2–3).
Moreover, and most relevant here, courts must enforce
jurisdictional rules
sua sponte, even in the face of a
litigant’s forfeiture or waiver.
Ibid.
We treat a rule as jurisdictional “only if
Congress ‘clearly states’ that it is.”
Boechler, 596
U. S., at ___ (slip op., at 3) (quoting
Arbaugh v.
Y
& H Corp.,
546 U.S.
500, 515 (2006)). And “[w]here multiple plausible
interpretations exist—only one of which is jurisdictional—it is
difficult to make the case that the jurisdictional reading is
clear.” 596 U. S., at ___ (slip op., at 5). We adopted this
clear-statement principle in
Arbaugh “to leave the ball in
Congress’ court,” ensuring that courts impose harsh jurisdictional
consequences only when Congress unmistakably has so instructed. 546
U. S., at 515–516; see
Wilkins v.
United States,
598 U.S. 152, 157–158 (2023).
B
Two aspects of §1252(d)(1), taken together,
persuade us that this statutory provision lacks the clear statement
necessary to qualify as jurisdictional.
First, §1252(d)(1) imposes an exhaustion
requirement, which is a quintessential claim-processing rule. When
faced with a type of statutory requirement that “ordinarily [is]
not jurisdictional,” we naturally expect the ordinary case, not an
“exceptional one.”
Sebelius v.
Auburn Regional Medical
Center,
568 U.S.
145, 154–155 (2013); see also,
e.g.,
United
States v.
Kwai Fun Wong, 575 U.S. 402, 410 (2015). So it
is here. We routinely “trea[t] as nonjurisdictional
. . . threshold requirements that claimants must
complete, or exhaust, before filing a lawsuit.”
Reed Elsevier,
Inc. v.
Muchnick,
559 U.S.
154, 166, and n. 6 (2010).[
4] Indeed, we have yet to hold that any statutory
exhaustion requirement is jurisdictional when applying the
clear-statement rule that we adopted in
Arbaugh.
Exhaustion is typically nonjurisdictional for
good reason. Jurisdictional treatment of an exhaustion requirement
could undo the benefits of exhaustion. That is, exhaustion promotes
efficiency, including by encouraging parties to resolve their
disputes without litigation. See
Jones v.
Bock,
549
U.S. 199, 219 (2007);
McCarthy v.
Madigan,
503 U.S.
140, 145 (1992). But jurisdictional treatment can result in the
opposite: If exhaustion is jurisdictional, litigants must slog
through preliminary nonjudicial proceedings even when, for example,
no party demands it or a court finds it would be pointless,
wasteful, or too slow. Similarly, an exhaustion objection raised
late in litigation (as jurisdictional objections can be) might
derail “many months of work on the part of the attorneys and the
court.”
Henderson, 562 U. S., at 434–435
(jurisdictional rules risk “the waste of judicial resources and may
unfairly prejudice litigants”). Thus, jurisdictional treatment
could disserve the very interest in efficiency that exhaustion
ordinarily advances. See
Wilkins, 598 U. S., at 158
(“Given th[e] risk of disruption and waste that accompanies the
jurisdictional label, courts will not lightly apply it to
procedures Congress enacted to keep things running smoothly and
efficiently”).
It would therefore be aberrant for the
exhaustion requirement in §1252(d)(1) to be characterized as
jurisdictional. Of course, “Congress is free to attach”
jurisdictional consequences to a requirement that usually exists as
a claim- processing rule.
Henderson, 562 U. S., at 435.
But to be confident Congress took that unexpected tack, we would
need unmistakable evidence, on par with express language addressing
the court’s jurisdiction. Nothing close appears here.
Instead, a second feature of the statute
compounds our doubt that §1252(d)(1) qualifies as a jurisdictional
rule: That provision’s language differs substantially from more
clearly jurisdictional language in related statutory provisions.
Elsewhere in the laws governing immigration cases, Congress
specified that “no court shall have jurisdiction” to review certain
matters.[
5] Over and over
again, Congress used that language in provisions that were enacted
at the same time—and even in the same section—as
§1252(d)(1).[
6] But Congress
eschewed such plainly jurisdictional language in §1252(d)(1).
The contrast between the text of §1252(d)(1) and
the “unambiguous jurisdictional terms” in related provisions
“show[s] that Congress would have spoken in clearer terms if it
intended” for §1252(d)(1) “to have similar jurisdictional force.”
Gonzalez v.
Thaler,
565 U.S.
134, 143 (2012); accord,
Henderson, 562 U. S., at
438–439. And, here, there is good reason to infer that the
linguistic contrast between §1252(d)(1) and neighboring provisions
is meaningful, not haphazard: Unlike other provisions, §1252(d)(1)
concerns exhaustion, and its language tracks exhaustion’s usual
nonjurisdictional status.
Taken together, these two features of
§1252(d)(1)—its content as an exhaustion requirement and its
contrast with related, plainly jurisdictional provisions—make
interpreting §1252(d)(1) as a claim-processing rule credible enough
that we cannot deem it clearly jurisdictional. Thus, we conclude
that §1252(d)(1) is a non-jurisdictional rule “ ‘merely
prescrib[ing] the method by which the jurisdiction granted the
courts by Congress is to be exercised.’ ”
Kontrick, 540
U. S., at 454 (quoting 12 C. Wright, A. Miller, & R.
Marcus, Federal Practice and Procedure §3141, p. 485 (2d ed.
1997)).
C
The Government offers several reasons why
§1252(d)(1) should nonetheless be characterized as jurisdictional.
Given our clear-statement rule, none is persuasive.
First, the Government insists that §1252(d)(1)
is jurisdictional because it is addressed to the “court” and limits
“review.” But that language does not necessarily refer to the
court’s
jurisdiction. Claim-processing rules can also be
addressed to courts. After all, one purpose of such rules is to
“instruct the court on the limits of its discretion” in handling
claims.
Kontrick, 540 U. S., at 456. Provisions
limiting “review” can be directions about the mode or manner of
review that are likewise nonjurisdictional in nature. Examples
abound, including elsewhere in the same title and section as
§1252(d)(1). See,
e.g., §1252(b)(2) (“The court of appeals
shall review the proceeding on a typewritten record and on
typewritten briefs”); §1535(a)(3) (“The Court of Appeals shall
. . . review questions of law de novo”); 5
U. S. C. §706 (“[T]he court shall review the whole record
or those parts of it cited by a party”).
Moreover, when taking other aspects of the
statute into account, it becomes apparent that §1252(d)(1) is not
using “court” and “review” in a jurisdictional manner. Section
1252(d)(1) is not even focused solely on the court. It also
requires that “
the alien has exhausted” certain remedies,
§1252(d)(1) (emphasis added), so it “speak[s] to a party’s
procedural obligations” as well, just like a nonjurisdictional
claim-processing rule,
Fort Bend County, 587 U. S., at
___ (slip op., at 9) (alteration and internal quotation marks
omitted). In addition, as previously mentioned, Congress had
expressly jurisdictional language close at hand.
Supra, at
6–7. Its use of more ambiguous phrasing to impose a quintessential
nonjurisdictional requirement is hardly the requisite clear
statement that §1252(d)(1) is jurisdictional.
Second, the Government seeks to advance a theory
that is based on a prior version of §1252(d)(1)’s exhaustion
requirement. A statute that existed before §1252(d)(1) provided
that an “order of deportation . . . shall not be reviewed
by any court if the alien has not exhausted the administrative
remedies available to him.” 8 U. S. C. §1105a(c) (1958
ed., Supp. III). According to the Government, that predecessor
provision was jurisdictional, and Congress merely carried forward
that understanding in §1252(d)(1). But at each step of that theory,
we find doubt, not clarity.
To begin, the Government has not established
that the predecessor provision was actually jurisdictional. Its
text, standing alone, did not clearly govern the court’s
jurisdiction. So the Government turns to precedent. No precedent of
this Court, however, established that the predecessor exhaustion
provision was jurisdictional (in the sense that we now use the
term).
The Government principally invokes
Stone
v.
INS,
514 U.S.
386 (1995), and
Nken v.
Holder,
556 U.S.
418 (2009). Both cases described portions of the Immigration
and Nationality Act that contained §1252(d)(1)’s predecessor as
“jurisdictional.”
Stone, 514 U. S., at 399, 405;
Nken, 556 U. S., at 424. But “[j]urisdiction, the Court
has observed, is a word of many, too many, meanings,” and courts
“have more than occasionally” used it to describe rules beyond
those governing a court’s adjudicatory authority.
Fort Bend
County, 587 U. S., at ___–___, and n. 4 (slip op., at
5–6, and n. 4) (internal quotation marks omitted).
Neither
Stone nor
Nken attends to
the distinction between “jurisdictional” rules (as we understand
them today) and nonjurisdictional but mandatory ones. Indeed,
Stone predates our cases, starting principally with
Arbaugh in 2006, that “bring some discipline to the use of
th[e] term” “jurisdictional.”
Henderson, 562 U. S., at
435.
Nken came later, but it never addressed the
Arbaugh line of cases. And in both
Stone and
Nken, whether the provisions were jurisdictional “was not
central to the case.”
Reed Elsevier, 559 U. S., at 161.
On top of all that, neither case addressed the exhaustion
requirement specifically. Instead, both merely mentioned the
section of the Immigration and Nationality Act that housed the
exhaustion requirement.
Stone, 514 U. S., at 399, 405;
Nken, 556 U. S., at 424.
Stone and
Nken
therefore cannot be read to establish the predecessor exhaustion
requirement as jurisdictional.
The Government also points to pre-
Arbaugh
decisions by lower courts characterizing the predecessor exhaustion
provision as jurisdictional. Brief for Respondent 21, n. 6
(collecting cases). We have held, however, that pre-
Arbaugh
lower court cases interpreting a related provision are not enough
to make clear that a rule is jurisdictional.
MOAC Mall Holdings
LLC v.
Transform Holdco LLC, 598 U. S. ___, ___
(2023) (slip op., at 14);
Wilkins, 598 U. S., at 165;
Boechler, 596 U. S., at ___ (slip op., at 7–8);
Reed
Elsevier, 559 U. S., at 167–169.
Further weakening the Government’s reliance on
the claimed jurisdictional status of §1252(d)(1)’s predecessor is
the fact that when it enacted §1252(d)(1), Congress did not even
recodify that prior provision exactly. Instead, Congress altered
the formulation that, according to the Government, had been
understood as a jurisdictional rule. Compare 8 U. S. C.
§1105a(c) (1958 ed., Supp. III) (a deportation order “shall not be
reviewed by any court if ”) with 8 U. S. C.
§1252(d)(1) (1994 ed., Supp. II) (“[a] court may review a final
order of removal only if ”). And having gone to the trouble of
rewriting the provision, Congress
still chose not to use the
more expressly jurisdictional formulation that it utilized
elsewhere.
Supra, at 6–7. All of this is inconsistent with
the Government’s theory that Congress understood the predecessor
provision to be jurisdictional and carried that forward in
§1252(d)(1).
Finally, the Government suggests that
§1252(d)(1) is jurisdictional simply because it falls within §1252.
Section 1252 is the exclusive source of jurisdiction for
immigration cases like this one, the Government contends, so each
of §1252’s limits must be jurisdictional. Brief for Respondent
17–18.[
7] This logical leap
falls short. Any foreclosure of sources of jurisdiction
outside §1252 does not tell us which provisions
within §1252 are essential jurisdictional prerequisites. And
even if some provisions in a statutory section qualify as
jurisdictional, that does not suffice to establish that all others
are.
Sebelius, 568 U. S., at 155;
Gonzalez, 565
U. S., at 146–147. This argument, like the Government’s
others, fails to demonstrate that it is “clea[r]” that Congress
made §1252(d)(1)’s exhaustion requirement jurisdictional.
Arbaugh, 546 U. S., at 515.
* * *
Because §1252(d)(1)’s exhaustion requirement
is not jurisdictional, it is subject to waiver and forfeiture. See
Nutraceutical Corp. v.
Lambert, 586 U. S. ___,
___–___ (2019) (slip op., at 3–4). The Court of Appeals erred in
holding otherwise.
III
The Government now suggests that even if
§1252(d)(1) is not jurisdictional, the Court of Appeals’
sua sponte requirement that Santos-Zacaria comply with
§1252(d)(1) can be justified on alternative grounds. Brief for
Respondent 26, n. 7. We do not reach that issue. Instead, we
hold that, even if §1252(d)(1) were applied here, Santos-Zacaria
has done enough to satisfy it. That is, §1252(d)(1) does not
require that Santos-Zacaria seek reconsideration from the Board, as
the Court of Appeals believed.
A
Under the plain language of §1252(d)(1), a
noncitizen must “exhaus[t] all administrative remedies available to
the alien as of right.” The parties here dispute whether, to
fulfill this requirement, Santos-Zacaria had to seek a certain form
of review of her legal claim: reconsideration by the Board of
Immigration Appeals. Whether exhaustion for §1252(d)(1) purposes
requires seeking Board reconsideration turns on the meaning of
“remedies available . . . as of right,” which, in turn,
relates to the specifics of the Board’s reconsideration
process.
Pursuant to that process, after the Board
renders a final decision, it can provide additional review via
reconsideration and its close cousin, reopening. Reconsideration
addresses “errors of law or fact in the previous order,” while
reopening accounts for “new facts.” §§1229a(c)(6)–(7); see 8 CFR
§1003.2 (2022).[
8]
Meanwhile, it is well established that a remedy
is not available “as of right” if it is discretionary. “As of
right” is a familiar phrase in the law, meaning “[b]y virtue of a
legal entitlement.” Black’s Law Dictionary 141 (11th ed. 2019). And
in the context relevant here—review of a legal claim—the phrase
means review that is guaranteed, not contingent on permission or
discretion. An “appeal as of right” is one over which the court
“has no discretion to deny review.”
Id., at 121. By
contrast, “discretionary review” is review “that is not a matter of
right” and instead requires “permission.”
Id., at 1579.
Under the Federal Rules, for instance, an appeal “as of right,”
Fed. Rule App. Proc. 3, stands in contrast to an appeal
“within the [court’s] discretion,” Fed. Rule App. Proc. 5. To
take another example, this Court’s certiorari review is “not a
matter of right, but of judicial discretion.” Supreme Court Rule
10. Thus, because §1252(d)(1) requires exhausting only remedies
available “as of right,” it does not require exhausting
discretionary review.
Board reconsideration and reopening are
discretionary. By regulation, today and at the time of
§1252(d)(1)’s enactment, “[t]he decision to grant or deny a motion
to reopen or reconsider is within the discretion of the Board.” 8
CFR §1003.2(a) (2022); 8 CFR §3.2 (1996); 61 Fed. Reg. 18904
(1996); see
Dada v.
Mukasey,
554 U.S.
1, 12–13 (2008) (tracing history of discretion to reopen back
to 1916). That means a noncitizen can
request
reconsideration. But only if “the motion to reconsider is granted”
does the Board proceed to make the “decision upon such
reconsideration” as to whether to “affirm, modify, or reverse the
original decision.” 8 CFR §1003.2(i). And, again, whether to grant
the motion to reconsider, and thus proceed to such review, is up to
the Board in its discretion. §1003.2(a);
In re O-S-G-, 24
I. & N. Dec. 56, 57 (BIA 2006) (“[W]e have authority
to deny a motion to reconsider as a matter of discretion”); cf.
§1003.2(a) (“The Board has discretion to deny a motion to reopen
even if the party moving has made out a
prima facie case for
relief ”).
Because Board reconsideration (like reopening)
is a discretionary form of review, it is not available to the
noncitizen “as of right.” Section 1252(d)(1) therefore does not
require a noncitizen to pursue it.
B
The Government acknowledges that because
§1252(d)(1) requires only exhaustion of remedies “available
. . . as of right,” “a noncitizen need not exhaust
‘discretionary’ remedies.” Brief for Respondent 39. It also
acknowledges that Board reconsideration is discretionary.
Id., at 41, n. 11; Brief in Opposition 15–16. Still,
the Government tries to squeeze reconsideration into the statutory
requirement of remedies available “as of right.” We are
unpersuaded.
According to the Government, §1252(d)(1)
requires seeking reconsideration because a noncitizen has the
“right”
to file a motion to reconsider. But that is a
peculiar understanding of a remedy available “as of right.” The
Government identifies no other provision that uses “as of right” to
describe the right to file a motion that appeals to the
decisionmaker’s discretion. Tr. of Oral Arg. 35. A discretionary
appeal, for example, is not “as of right” just because a litigant
has a right to file a petition for permission to appeal. See,
e.g., 28 U. S. C. §1292(b); Fed. Rule Civ.
Proc. 23(f ).
That understanding of “as of right” is so
unnatural that even the Government does not fully embrace it, as
its view of other forms of relief reveals. Cancellation of removal,
voluntary departure, and adjustment of status are discretionary
types of immigration relief available to noncitizens only as a
matter of grace, not entitlement. 8 U. S. C. §§1229b,
1229c, 1255; see
Kucana v.
Holder,
558 U.S.
233, 247–248 (2010). And the Government accordingly volunteers
them as examples of remedies “not ‘available’ to [a noncitizen] ‘as
of right.’ ” Brief for Respondent 39 (quoting §1252(d)(1)).
Yet eligible noncitizens can file requests for those forms of
relief. See §§1229b, 1229c, 1255; 8 CFR §§1240.20, 1240.26, 1245.1.
Even the Government does not say these are remedies available “as
of right” just because noncitizens have a right to request
them.
The Government’s reading has a further flaw.
Understanding the
motion for reconsideration as a remedy
“available . . . as of right” does not just read “as of
right” unnaturally; it reads it out of §1252(d)(1) altogether.
Under the Government’s view, there is a remedy that is “available
. . . as of right” here because the noncitizen is
entitled to request reconsideration by filing a motion. See Brief
for Respondent 38–39. But if a noncitizen could
not request
reconsideration, there would be no remedy “available” for the
noncitizen to exhaust. The statute’s additional requirement that
the remedy be available “as of right” would be entirely
superfluous. Instead, we read the phrase “as of right” to do its
usual work in the context of review of a legal claim:
distinguishing between discretionary and nondiscretionary
review.
Switching gears, the Government suggests that
§1252(d)(1) excludes only remedies made discretionary
by
statute, while reconsideration and reopening are made
discretionary
by regulation.
Id., at 39–40. True,
Congress elsewhere focused on discretion specified by statute. We
considered such a provision in
Kucana v.
Holder,
addressing administrative actions “ ‘the authority for which
is
specified under this subchapter to be in the discretion
of the Attorney General.’ ” 558 U. S., at 237 (quoting
§1252(a)(2)(B)(ii)). But §1252(d)(1) draws no such line. It simply
covers remedies that are “available . . . as of
right.” Whether that characteristic is established by statute or
regulation makes no difference.
It is especially implausible that §1252(d)(1)
treats reconsideration and reopening as “available
. . . as of right” just because the discretion
whether to grant them is not specified by statute. As we noted
previously, when Congress enacted §1252(d)(1), regulation and
historical practice had already firmly established Board
reconsideration and reopening as discretionary.
Supra, at
13; 8 CFR §3.2 (1996);
Dada, 554 U. S., at 12–13. We
have no reason to think §1252(d)(1) categorizes those
well-understood discretionary forms of review as “available
. . . as of right.”
The Government also posits that reconsideration
and reopening are “available . . . as of right” because
in certain cases, denying the noncitizen’s motion would be
reversible as an abuse of discretion. See Brief for Respondent 41,
n. 11; Tr. of Oral Arg. 39. All this shows is that the
agency’s discretion has limits. That is no surprise.
“Traditionally, . . . decisions on matters of discretion
are reviewable for abuse of discretion.”
Highmark Inc. v.
Allcare Health Management System, Inc.,
572 U.S.
559, 563 (2014) (internal quotation marks omitted). They remain
“matters of discretion” all the same.
Finally, not only do the Government’s theories
fail on their own terms, but they also share a common problem: They
would render the statutory scheme incoherent. The Government urges
that reconsideration (or at least a motion to reconsider) is an
“administrative remed[y] available . . . as of right,”
§1252(d)(1). Yet §1252(d)(1) requires “exhaus[ting] all” such
remedies, without exception. So if the Government is correct,
noncitizens would need to seek reconsideration from the Board
before obtaining judicial review in every case. But that obligation
is incompatible with the rest of the statute’s design.
In particular, elsewhere, the statute provides
for a process that does
not require reconsideration before
judicial review. Noncitizens are authorized to seek judicial review
of an agency order and, additionally, to seek administrative review
of the agency’s decision via a “motion to reopen or reconsider the
order.” See §1252(b)(6). The statute gives noncitizens
the same
30-day window from the agency order to seek judicial review and
administrative reconsideration. §§1252(b)(1), 1229a(c)(6)(B). The
statute is thus designed around pursuing judicial review and agency
reconsideration
in parallel, not waiting to seek judicial
review until after reconsideration is complete. With respect to a
prior version of this scheme, we observed that, if a noncitizen
seeks reconsideration, the statute plainly “contemplates” that “two
separate petitions for [judicial] review will exist in the normal
course”: one from the agency’s initial order and a later one from
its decision on the reconsideration motion.
Stone, 514
U. S., at 393–395.
If reconsideration were required for exhaustion,
however, only
one petition—the later one—would pass muster.
The first petition would be premature. So the Government’s
interpretation of remedies “available . . . as of right”
would not just flood the Board with reconsideration motions that
noncitizens otherwise would not file; it would also flood the
courts with pointless premature petitions—petitions that the
statutory scheme would provide for noncitizens to file, on the one
hand, yet deem unexhausted, on the other. We decline to interpret
the statute to be so at war with itself.
C
Conceding that it “would be inconsistent with”
the design of the statute to require noncitizens to
always
file a motion to reconsider for exhaustion purposes, the Government
instead would require such a motion only
sometimes: when the
noncitizen is raising an issue not previously presented to the
agency. Brief for Respondent 36–37. According to the Government, a
noncitizen must give the agency an opportunity to consider an issue
before raising it in court. So in the Government’s view, a motion
to reconsider is required when it is the only remaining mechanism
for presenting a new issue, but not when the noncitizen has already
presented every issue to the agency in other ways.[
9]
That is not the scheme Congress adopted. Section
1252(d)(1) does not require noncitizens to give the agency an
opportunity to consider an objection
using every mechanism
available. It requires exhausting only administrative remedies
“available . . . as of right.” And we do not see how
seeking reconsideration can qualify sometimes and not others.
Instead, for the reasons already explained, it does not qualify at
all.
Supra, at 12–16.
Nor would the Government’s approach cure the
inconsistency identified above: The statutory scheme would still
produce pointless, unexhausted petitions for review. See
supra, at 16–17. Consider, for example, a noncitizen whose
only issue for judicial review is one she had not raised previously
because the Board’s decision introduced the issue. Under the
Government’s view, §1252(d)(1) bars judicial review until after she
pursues reconsideration. Yet, elsewhere, the statutory scheme
contemplates that she immediately petition for judicial review of
the Board’s initial, prereconsideration decision. See
ibid.;
§§1252(b)(1), (6), 1229a(c)(6)(B). Any such petition is a worthless
exercise, however, if it is unexhausted by definition, as the
Government maintains.
The Government’s approach would also introduce
practical difficulties. If motions to reconsider are required only
sometimes, what cases qualify? In this very case, the members of
the Court of Appeals panel disagreed about whether a motion to
reconsider was required under the Government’s rule, largely
because they differed over whether Santos-Zacaria had asserted
adequately to the Board earlier that new factfinding would be
impermissible. Compare 22 F. 4th, at 573 (majority opinion), with
id., at 575 (Higginson, J., dissenting). And how are
noncitizens—already navigating a complex bureaucracy, often
pro se and in a foreign language—to tell the
difference? The Government’s position presents a world of
administrability headaches for courts, traps for unwary
noncitizens, and mountains of reconsideration requests for the
Board (filed out of an abundance of caution by noncitizens unsure
of the need to seek reconsideration). For the reasons discussed, we
are confident that Congress did not adopt such a scheme.[
10]
* * *
Section 1252(d)(1)’s exhaustion requirement is
not jurisdictional and does not oblige a noncitizen to seek
discretionary review, like reconsideration before the Board of
Immigration Appeals. We vacate the portion of the judgment of the
Court of Appeals dismissing Santos-Zacaria’s petition for review
and remand the case for further proceedings consistent with this
opinion.
It is so ordered.