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On Jan. 10, 2022 a panel of the U.S. Court of Appeals for the Fifth Circuit issued a 2-1 decision in the case of Santos-Zacaria v. Garland, 22 F.4th 570.
On May 10, 2022 counsel for Santos-Zacaria filed a Petition for Writ of Certiorari to the U.S. Supreme Court.
On Aug. 12, 2022 the government filed a Brief in Opposition.
On Oct. 3, 2022 the Supreme Court granted the petition.
After the Board of Immigration Appeals (BIA) denied her application for withholding ofremoval, petitioner Leon Santos-Zacaria filed a petition for review. Although the governmentagreed that the court had jurisdiction, the Fifth Circuit sua sponte dismissed in part for lack ofjurisdiction pursuant to 8 U.S.C. § 1252(d)(1), which requires a noncitizen to exhaust "alladministrative remedies available to the alien as of right."
This holding implicates two circuit splits, each of which independently warrants review.
1. Eight circuits hold that Section 1252(d)(1)'s exhaustion requirement is jurisdictional.Two circuits disagree, holding that exhaustion may be waived. Multiple courts and judges havecalled for further review of this issue. The first question presented is:
Whether Section 1252(d)(1)'s exhaustion requirement is jurisdictional, or merely amandatory claims processing rule that may be waived or forfeited.
2. Further, petitioner's merits argument is that the BIA engaged in impermissible factfinding. In these circumstances, the Fifth Circuit, along with three other circuits, requires anoncitizen to file a motion to reopen or reconsider with the agency in order to satisfy Section1252(d)(1)'s requirement that a noncitizen exhaust "remedies available * * * as of right." Twoother circuits, recognizing that "[t]he decision to grant or deny a motion to reopen orreconsider is within the discretion of the Board" (8 C.F.R. § 1003.2) disagree. The secondquestion presented is:
Whether, to satisfy Section 1252(d)(1)'s exhaustion requirement, a noncitizen whochallenges a new error introduced by the BIA must first ask the agency to exercise its discretionto reopen or reconsider."