Santos-Zacaria v. Garland

LII note: The U.S. Supreme Court has now decided Santos-Zacaria v. Garland .


Does 8 U.S.C § 1252(d)(1) prevent an appellate court from reviewing a claim regarding impermissible factfinding by the Board of Immigration Appeals when a petitioner fails to first file a motion to reconsider?

Oral argument: 
January 17, 2023

This case asks the Supreme Court to determine whether a petitioner must file a motion to reconsider with the Board of Immigrant Appeals to satisfy the exhaustion requirement (8 U.S.C. § 1252(d)(1)) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and whether this requirement is jurisdictional or a waivable claims-processing rule. Leon Santos-Zacaria argues that the exhaustion requirement is a claims-processing rule because the statute does not mention jurisdiction, and Congress must clearly state that a procedural requirement is jurisdictional for it to be so. Santos-Zacaria further argues that the exhaustion requirement pertains only to remedies available to the alien as of right, which Santos-Zacaria asserts does not include reconsideration. U.S. Attorney General, Merrick Garland, counters that the exhaustion requirement is jurisdictional because the statute is written with language like that which is used to define the scope of appellate jurisdiction. Garland further asserts that the exhaustion requirement encompasses issue exhaustion, which includes reconsideration, because the applicant must give the agency a chance to correct its own mistakes before resorting to appellate review. The outcome of this case will determine the accessibility of judicial review of asylum application decisions.

Questions as Framed for the Court by the Parties 

Whether the court of appeals correctly determined that 8 U.S.C. 1252(d)(1) prevented the court from reviewing petitioner's claim that the Board of Immigration Appeals engaged in impermissible factfinding because petitioner had not exhausted that claim through a motion to reconsider.


Santos-Zacaria, a transgender woman from Guatemala, was assaulted at the age of 12, in part due to her sexuality. Santos-Zacaria v. Garland at 2. Santos-Zacaria traveled to the United States and began the process of seeking asylum a few years after the assault in Guatemala. Id. Once in the United States, Santos-Zacaria claimed that if she returned to Guatemala, she would again face persecution for her sexual orientation and gender identity. Id.

The immigration judge assigned to Santos-Zacaria’s case denied her asylum application. Id. The judge determined that the prior assault alone was insufficient to show that persecution would likely continue in the future. Id. Without the judicial finding that Santos-Zacaria would likely face future persecution, she would be deported and forced to return to Guatemala. Id.

Following the immigration judge’s asylum denial, Santos-Zacaria petitioned the Board of Immigration Appeals (BIA) to review the decision. Id. The BIA dismissed the appeal, but on different grounds than previously determined by the immigration judge. Id. The BIA determined that Santos-Zacaria was entitled to a presumption of future persecution on account of her sexual orientation and gender identity. Id. This determination made it easier for Santos-Zacaria to successfully claim asylum. Id. Despite the presumption of future persecution, the BIA also found that the government had successfully shown that future persecution was unlikely. Id. The BIA ultimately rejected all other arguments related to Santos-Zacaria’s petition for asylum, as well as all arguments for other forms of relief. Id.

Santos-Zacaria appealed the BIA’s decision to the U.S. Court of Appeals for the Fifth Circuit. Id. at 3. Santos-Zacaria argued that the BIA made an impermissible factual determination regarding the likelihood of persecution upon her return to Guatemala. Id. Determining the likelihood of persecution relies on a clear probability standard. Id. In order to remain in the United States, the petitioner must show a clear probability of future persecution. Id. The conclusion regarding the likelihood of persecution must be supported by record evidence and be substantially reasonable. Id. at 2. Santos-Zacaria claimed that the BIA itself should not have made a determination regarding the likelihood of future persecution. Id. Instead, Santos-Zacaria argued that the BIA should have deferred the decision to the immigration judge, who would then make a factual determination regarding the likelihood of future persecution. Id. Santos-Zacaria claimed that making a factual determination was outside the BIA’s authority. Id.

The Fifth Circuit did not decide whether the BIA correctly applied the clear probability standard. Id at 4. Instead, the Fifth Circuit determined that Santos-Zacaria failed to exhaust her claim regarding impermissible factfinding by the BIA because she did not raise this issue before the Board itself. Id. at 3. According to the court, only after a BIA denial of a motion for reconsideration could a petitioner appeal the decision to an appellate court. Id. Since Santos-Zacaria had not filed the motion for reconsideration before appealing the BIA’s decision, the Fifth Circuit noted that it was without jurisdiction and thus dismissed the case. Id.

Santos-Zacaria appealed the Fifth Circuit’s decision to the United States Supreme Court. Santos-Zacaria v. Garland at 1. The Supreme Court granted certiorari on October 3, 2022. Id.



Santos-Zacaria argues that because Congress must clearly state when a limitation is jurisdictional, the lack of such a statement in the exhaustion requirement of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) means that it is not a jurisdictional limitation, but rather a waivable claims-processing rule. Brief for Petitioner, Leon Santos-Zacaria at 17-18. Santos-Zacaria asserts that this clear-statement rule is especially applicable to statutory provisions governing judicial review of agency action, such as the one at issue here, 8 U.S.C. § 1252(d)(1). Id. at 17. Further, Santos-Zacaria emphasizes that the text of the statute itself makes no reference to jurisdiction and does not speak in jurisdictional terms, and thus does not satisfy the clear-statement rule. Id. at 18. Santos-Zacaria points out that the statute’s text refers to a party’s procedural obligations rather than defining a class or category of cases that lack jurisdiction. Id. at 19-21. Additionally, Santos-Zacaria asserts that even if a plausible interpretation of the statute would render it a jurisdictional limitation, the Court should disregard any interpretation that the statute’s text does not clearly require. Id. at 21. Santos-Zacaria highlights Congress’s use of jurisdictional language in other provisions of the IIRIRA and argues that the distinct lack of such language in the provision containing the exhaustion requirement reflects Congress’s express intent for the limitation to be nonjurisdictional. Id. at 24.

Santos-Zacaria also contends that the structure of §1252(d), as a whole, suggests that the exhaustion requirement is nonjurisdictional because §1252(d)(2) grants discretionary authority to the courts, and therefore cannot reasonably be interpreted as a jurisdictional limitation. Id. at 22-23. Santos-Zacaria reasons that for a court to utilize such discretion and make a finding as to whether an exception applies to the petition they are considering, they must first have jurisdiction over the petition itself. Id. at 23.

Santos-Zacaria further points out that courts typically treat exhaustion requirements as nonjurisdictional claims-processing rules. Id. at 26. Santos-Zacaria emphasizes that exhaustion requirements have been used in other cases as paradigmatic examples of claims-processing rules and the consistency of such treatment in the past warrants a similar result in this case. Id. Furthermore, Santos-Zacaria asserts that the purpose of the exhaustion requirement is to facilitate litigation rather than limit a court’s power, and that such a purpose can only be achieved by construing the requirement as nonjurisdictional. Id. at 27.

Merrick Garland counters that the statute explicitly governs jurisdiction because it imposes a condition upon a court’s ability to review an agency’s decision. Brief for Respondent, Merrick B. Garland at 15. Garland points out that courts in the past have viewed limitations on the authority to review decisions as subject-matter jurisdiction limitations and argues for a similar interpretation regarding § 1252(d)(1) because it limits an appellate court’s authority to review an agency’s decision. Id. at 16. Garland further asserts that courts have recognized statutes as jurisdictional when they address the court’s authority directly, rather than the rights of litigants and their claims, and thus the exhaustion limitation, which addresses the court’s ability to review agency actions, is also jurisdictional. Id. at 16-17. Additionally, Garland counters that the explicitly jurisdictional language used in other provisions of § 1252, which deprive courts of jurisdiction over removal orders that do not conform to the exhaustion requirement, show that the exhaustion requirement itself is also a jurisdictional limitation because they give the exhaustion requirement jurisdictional value. Id. at 17. Garland contends that the Court has interpreted similar review restriction provisions as jurisdictional limitations in the past, such as an Immigration and Nationality Act (INA) provision which limits judicial and administrative review of determinations respecting an application for adjustment of status. Id. at 18-19. Furthermore, Garland asserts that the Court has, multiple times, recognized that the predecessor to the IIRIRA’s exhaustion requirement was written in jurisdictional terms, and that Congress codified the language in the current statute with the awareness and intention that it retains the prior jurisdictional interpretation. Id. at 21. Garland further argues that in §1252, Congress uses the terms “judicial review” and “jurisdiction to review” interchangeably, and therefore the lack of reference to jurisdiction in § 1252(d)(1) is not indicative of a nonjurisdictional Congressional intention. Id. at 23.

Additionally, Garland argues that the exhaustion requirement does not resemble other claim-processing rules because the provision’s first clause addresses the court directly and as such is defining a class of cases that the court may not review, unlike the nonjurisdictional claim-processing rules that Santos-Zacaria points to. Id. at 22. Garland also refutes Santos-Zacaria’s argument that § 1252(d)(2) cannot be jurisdictional and contends that Congress is free to define categories or classes of suits without restriction, and as such the exception in § 1252(d)(2) that bestows judicial discretion in its application is not an obstacle to a jurisdictional interpretation of the provision. Id. at 22-23. Further, Garland responds to Santos-Zacaria’s contention that courts have always treated exhaustion requirements as nonjurisdictional by pointing to an example of when an exhaustion requirement was treated as jurisdictional. Id. at 25. Specifically, Garland cites Woelke & Romero Framing, Inc. v. NLRB, in which the Court held that a statute barring judicial consideration of an objection not presented to the agency was a jurisdictional limitation on courts. Id.


Santos-Zacaria argues that the text of the statute does not require issue exhaustion; rather, it only mandates the exhaustion of all available remedies. Brief for Petitioner at 30. Because of this, Santos-Zacaria asserts that, even if the remedy exhaustion requirement is jurisdictional, there is no clear statement of Congressional intent to include an issue exhaustion requirement. Id. In support of this assertion, Santos-Zacaria emphasizes that Congress has clearly indicated in other statutes when an issue exhaustion requirement is imposed, and Congress did not do so here. Id. Furthermore, Santos-Zacaria points out that the Court has explicitly rejected the idea that issue exhaustion is required in an exhaustion of remedies and contends that the remedy exhaustion requirement here similarly does not require issue exhaustion. Id. at 30-31. Finally, Santos-Zacaria asserts that even if issue exhaustion is required under the statute, there is no clear statement indicating Congressional intent for the requirement to be jurisdictional. Id. at 31. In fact, Santos-Zacaria contends, an issue exhaustion requirement that is imposed by the court and not by statute cannot limit the jurisdiction granted to courts by Congress because courts themselves have held that only Congress can limit the subject-matter jurisdiction of lower courts. Id. at 32.

Santos-Zacaria further argues that the exhaustion requirement does not require a petitioner to file a motion to reconsider because the text requires a noncitizen to exhaust all remedies available to them as of right, and a motion to reconsider is not one of them. Id. at 34. Santos-Zacaria asserts that a motion to reconsider is not a remedy available as a matter of right because the reconsideration is a request for discretionary relief: the BIA is free to reject a motion to reconsider. Id. at 37. Santos-Zacaria highlights the difference between a remedy available as of right and a right that a noncitizen has and argues that, while a noncitizen has a right to file a motion to reconsider, the remedy requested is not available as of right and therefore filing the motion is not required to satisfy the exhaustion requirement. Id. at 38-39.

Garland counters that the exhaustion requirement demands issue exhaustion because it codifies the doctrine of administrative exhaustion, which has been treated by the courts as jurisdictional. Brief for Respondent at 28. Garland adds that under the doctrine of administrative exhaustion, in an adversarial setting such as the current one, a petitioner must raise their issues with the agency before bringing them to court, and as such the exhaustion requirement at issue encompasses issue exhaustion. Id. at 29. In addition, Garland claims that the other provisions of § 1252 can only function properly if the exhaustion requirement is interpreted as requiring issue exhaustion. Id. at 31-32. Garland contends that without issue exhaustion, the administrative review and judicial review schemes will conflict because the BIA and courts will be allowed to consider issues simultaneously, which could lead to differing decisions on the same issue. Id. at 32-33. Furthermore, Garland contends that the issue exhaustion requirement is jurisdictional because Congress chose to add such a requirement in an adversarial system, and therefore intended it to be jurisdictional. Id. at 35. Garland adds that a noncitizen must file a motion to reconsider under the exhaustion requirement because an agency must have an opportunity to correct its own error before it is brought before a court. Id. at 36. Garland admits that a statute could operate differently but argues that Congress’s intent here is clear, and thus, in cases like Santos-Zacaria’s where an issue has not been raised before the BIA, a motion to reconsider must be filed to satisfy the exhaustion requirement. Id. at 36-37.



The Constitutional Accountability Center (CAC) and National Immigration Litigation Alliance (NILA), in support of Santos-Zacaria, argue that Congress did not intend for § 1252(d)(1) to create an exhaustion requirement that eliminates jurisdiction for a Court of Appeals. Brief of Amici Curiae The Constitutional Accountability Center and National Immigration Litigation Alliance, in Support of Petitioner at 15. CAC and NILA contend that Congress has the power to restrict subject matter jurisdiction but chose not to exercise that power here. Id. Instead, CAC and NILA posit that Congress attempted to make the exhaustion requirement discretionary, leaving the Courts of Appeals with the ability to make determinations even if the petitioner has not filed a motion for reconsideration. Id. at 16.

Garland counters that Congress did intend to create an exhaustion requirement in § 1252(d)(1). Brief for the Respondent in Opposition, Merrick B. Garland at 12. Garland contends that the Court cannot ignore Congress’s use of mandatory language in a statute creating administrative exhaustion provisions. Id. Garland asserts that Congress has the power to limit a court’s jurisdiction, which acts as a restraint on the court’s power. Id. Garland insists that the outcome of the case should reflect the fact that Congress can restrict the courts from reviewing certain types of administrative decisions. Id.


Legal Service Providers, in support of Santos-Zacaria, argue that finding an exhaustion requirement in § 1252(d)(1) would create confusion regarding when the requirement has been met. Brief of Amici Curiae Legal Services Providers, in Support of Petitioner at 21. According to the Legal Service Providers, whether the requirement is applied broadly or narrowly will dictate whether a court can hear a petitioner’s arguments. Id. The Legal Service Providers assert that the risk of confusion and unfair outcomes is particularly great in the immigration context because many noncitizens proceed pro se and inadvertently forfeit meritorious claims. Id. The Legal Service Providers maintain that differing interpretations of the requirement between circuits, or even within panels, will create uncertainty and unnecessary confusion in the immigration process. Id.

Garland responds that an exhaustion requirement will be easily understood and consistently applied across circuits. Brief for the Respondent in Opposition at 16. Garland contends that all circuits have found exhaustion requirements in the mandatory language of similar statutes. Id. Further, Garland maintains that the exhaustion requirements are applied consistently, and there are rarely cases where judges disagree on whether a claim requires exhaustion. Id. at 16-17. Overall, Garland emphasizes that the adoption of a mandatory exhaustion requirement in § 1252(d)(1) would not cause any additional confusion or disagreement in the immigration system. Id.


Legal Service Providers, in support of Santos-Zacaria, argue that creating an exhaustion requirement would increase the backlog in an already overburdened immigration court system. Brief of Legal Services Providers at 6. The Legal Service Providers contend that the median immigration case appeal time is already close to a year and mandating additional appeals will only make the process slower. Id. Therefore, the Legal Service Providers maintain that the Court should recognize the problems associated with a lengthy appeal process and find that § 1252(d)(1) does not impose a mandatory exhaustion requirement. Id.

Contrarily, Garland argues that a mandatory exhaustion requirement will properly put all issues before administrative agencies. Brief for the Respondent, Merrick B. Garland at 32. By requiring claims to be raised before the BIA, Garland contends that § 1252(d)(1) correctly divides the burden of asylum cases between the administrative agencies and the courts. Id. Garland maintains that a Court determination that there is no issue exhaustion requirement in § 1252(d)(1) would result in courts and agencies concurrently considering claims. Id. at 33. Without clear divisions of work, Garland claims that the immigration process will proceed inefficiently. Id.


Written by:

Rachel Lu

Erik Olson

Edited by:

Tori Staley


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