Cert. Granted in Santos-Zacaria v. Garland

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.

Question Presented:

After the Board of Immigration Appeals (BIA) denied her application for withholding of
removal, petitioner Leon Santos-Zacaria filed a petition for review. Although the government
agreed that the court had jurisdiction, the Fifth Circuit sua sponte dismissed in part for lack of
jurisdiction pursuant to 8 U.S.C. § 1252(d)(1), which requires a noncitizen to exhaust "all
administrative 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 have
called for further review of this issue. The first question presented is:

Whether Section 1252(d)(1)'s exhaustion requirement is jurisdictional, or merely a
mandatory claims processing rule that may be waived or forfeited.

2. Further, petitioner's merits argument is that the BIA engaged in impermissible fact
finding. In these circumstances, the Fifth Circuit, along with three other circuits, requires a
noncitizen to file a motion to reopen or reconsider with the agency in order to satisfy Section
1252(d)(1)'s requirement that a noncitizen exhaust "remedies available * * * as of right." Two
other circuits, recognizing that "[t]he decision to grant or deny a motion to reopen or
reconsider is within the discretion of the Board" (8 C.F.R. § 1003.2) disagree. The second
question presented is:

Whether, to satisfy Section 1252(d)(1)'s exhaustion requirement, a noncitizen who
challenges a new error introduced by the BIA must first ask the agency to exercise its discretion
to reopen or reconsider."