Zimmer's Books

by William K. Zimmer, in Immigration Matters

 

The procedural history, facts of record, holding and rationale in Santos-Zacaria v. Garland, 598 U. S. ____ (2023) are as follows:

 

Case History

After being removed from the United States, the Petitioner returned to the United States.

 

The Department of Homeland Security ("DHS") apprehended the Petitioner again and moved to reinstate her previous removal order.

 

An Immigration Judge entered an order reinstating the Petitioner’s previous removal order and denied her applications for relief from removal.

 

The Petitioner appealed to the Board of Immigration Review (“BIA”).

 

The BIA upheld the Immigration Judge’s decision.

 

The Petitioner filed a petition for review.

 

The appellate court dismissed the Petitioner’s petition for review, in part, for lack of jurisdiction.

 

The Petitioner then filed a request for a writ of certiorari which was granted by the United States Supreme Court.

 

 

Facts

• The Petitioner is a native and citizen of Guatemala who first arrived in the United States seeking to avoid persecution in Guatemala.
• The DHS removed the Petitioner from the United States in 2008.
• The Petitioner returned to the United States in 2018 and was apprehended by the DHS again.
• The Petitioner applied for relief from removal, including withholding of removal under section 241(b)(3)(A) of the Immigration and Nationality Act, as amended (“the Act”).
• An Immigration Judge entered an order reinstating the Petitioner’s previous removal order and denied the Petitioner’s applications for relief from removal.
• The Petitioner appealed to the BIA.
• Even though the BIA partially agreed with the Petitioner that she had suffered past persecution in Guatemala (which established a rebuttable presumption of future persecution), the BIA upheld the Immigration Judge’s denial of withholding of removal.  In particular, the BIA determined that the presumption of future persecution was rebutted. 
• The Immigration Judge, however, had not addressed the presumption rebuttal issue.
• The Petitioner then filed a petition for review in the Fifth Circuit Court of Appeal under section 242 of the Act, contending, among other things, that the BIA had impermissibly engaged in fact finding that only the Immigration Judge could perform when it had concluded that the presumption of future persecution was rebutted.
• The Fifth Circuit Court of Appeal dismissed the Petitioner’s impermissible fact finding challenge for lack of jurisdiction, reasoning that she had failed to exhaust administrative remedies under section 242(d)(1) of the Act.
• Although the DHS did not assert that the Petitioner had not exhausted her administrative remedies, the Fifth Circuit Court of Appeal considered the exhaustion issue sua sponte (legalese meaning by spontaneous self-urging or recommendation) because it characterized section 242(d)(1) of the Act as establishing a jurisdictional requirement.
• The Fifth Circuit Court of Appeal then went on to hold that, because the Petitioner had not raised the impermissible fact finding challenge in a motion for reconsideration before the BIA before filing her petition for review, she had failed to satisfy the 242(d)(1) exhaustion requirement which deprived the court of appellate jurisdiction.

 

Held

Vacated with regard to the portion of the court of appeal judgment that dismissed the petition for review

Remanded for further proceedings

 

Rationale

Statutory Analysis

• A “jurisdictional” prescription sets the bounds of the “court’s adjudicatory authority.” Kontrick v. Ryan, 540 U. S. 443, at 455 (2004).
• Nonjurisdictional rules, such as claims-processing rules govern how courts and litigants operate within the bounds of judiciary adjudicative authority.  See Henderson v. Shinseki, 562 U. S. 428, at 435 (2011).
• A rule is deemed jurisdictional “only if Congress ‘clearly states’ that it is.”  Boechler v. Commissioner, 596 U. S. ___, ___ (2022) (slip op., at 3) (quoting Arbaugh v. Y & H Corp., 546 U. S. 500, at 515 (2006).
• Section 242(d)(1) of the Act imposes an exhaustion requirement, which is a quintessential claim-processing rule.
• Exhaustion is typically nonjurisdictional because jurisdictional treatment of an exhaustion requirement could undo the benefits of exhaustion.  In particular, exhaustion promotes efficiency, including encouragement of parties to resolve their disputes without litigation.  See Jones v. Bock, 549 U. S. 199, at 219 (2007); McCarthy v. Madigan, 503 U. S. 140, at 145 (1992).
• Jurisdictional classification of an exhaustion rule can result in forcing litigants to engage in preliminary nonjudicial proceedings even when no party demands it or a court finds it would be pointless, wasteful, or too slow.
• In addition, an exhaustion objection raised late in litigation (as jurisdictional objections can be) risk “the waste of judicial resources and may unfairly prejudice litigants.”  Henderson v. Shinseki, 562 U. S. 428, at 434-435 (2011).
• Thus, jurisdictional treatment of an exhaustion rule could undermine the very interest in efficiency that exhaustion ordinarily advances.  See Wilkins v. United States, 598 U. S. 152, at 158 (2023).
• Therefore, characterizing the exhaustion requirement in section 242(d)(1) of the Act would be aberrant.
• Although Congress could attach jurisdictional consequences to a claims-processing rule, express language addressing the court’s jurisdiction would be required and nothing close to express language appears in section 242(d)(1) of the Act.
• Furthermore, the language of section 242(d)(1) of the Act differs substantially from more clearly jurisdictional language in related statutory provisions where Congress specified that “no court shall have jurisdiction” to review certain matters.  See sections 242(a)(2)(A), (a)(2)(B), (a)(2)(C), (b)(9), (g), 212(a)(9)(B)(v), (d)(3)(B)(i), (d)(12), (h), (i)(2), 208(a)(3), 237(a)(3) (C)(ii), 240B(f ), 245A(f )(4)(C); see also 235(b)(1)(D) of the Act (“the court shall not have jurisdiction”).
• By contrast, Congress did not use jurisdictional language in section 242(d)(1) of the Act.
• In conclusion, section 242(d)(1) of the Act is a non-jurisdictional rule “‘merely prescrib[ing] the method by which the jurisdiction granted the courts by Congress is to be exercised.’” Kontrick v. Ryan, 540 U. S. 443, at 454 (2004) (quoting 12 C. Wright, A. Miller, & R. Marcus, Federal Practice and Procedure §3141, p. 485 (2d ed. 1997)).

 

Government’s Arguments

The Government asserted that:

1. Section 242(d)(1) of the Act is jurisdictional because it is addressed to the "court" and limits "review."
2. The prior version of section 242(d)(1) of the Act 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.”  See 8 U. S. C. §1105a(c) (1958 ed., Supp. III).  This previous version of section 242(d)(1) of the Act was jurisdictional and Congress carried this understanding forward.  Stone v. INS, 514 U. S. 386 (1995), and Nken v. Holder, 556 U. S. 418 (2009).
3. Section 242(d)(1) of the Act is jurisdictional because it falls within section 242 of the Act which is the exclusive source of jurisdiction for immigration cases like the one under review.  Therefore, each of section 242 of the Act’s limits must be jurisdictional.
4. Even if section 242(d)(1) of the Act is not jurisdictional, the Court of Appeal’s sua sponte requirement that the Petitioner comply with section 242(d)(1) of the Act can be justified on alternative grounds.
5. Although reconsideration is a discretionary remedy, section 242(d)(1) of the Act requires seeking reconsideration because a noncitizen has the “right” to file a motion to reconsider; and reconsideration and reopening are "available . . . as of right" because in certain cases, denying a motion to reconsider or reopen is reversible as an abuse of discretion.
6. Section 242(d)(1) of the Act excludes only remedies made discretionry by statute, whereas reconsideration and reopening are made discretionary by regulation.

The United States Supreme Court reasoned as follows:

1. The fact that the language of section 242(d)(1) of the Act addresses the “court” and limits “review” does not necessarily refer to the court’s jurisdiction. 
   •  

• Claim-processing rules can also be addressed to courts.
• Section 242(d)(1) of the Act not only limits appellate review, but requires that “the alien has exhausted” certain remedies, 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).
• Congress used clearly jurisdictional language in section 242 of the Act and in other sections of the Act.  Therefore,  its use of more ambiguous phrasing to impose a quintessential nonjurisdictional requirement is not the requisite clear statement that section 242(d)(1) of the Act is jurisdictional.

•  

• Neither Stone v. INS nor Nken v. Holder addresses the distinction between “jurisdictional” rules (as they are understood today) and nonjurisdictional but mandatory rules.
• In both Stone v. INS and Nken v. Holder, the question of whether the provisions were jurisdictional was not central to the issues that governed the outcome of these decisions.
• In fact, neither case addressed the exhaustion requirement specifically.
• Having gone to the trouble of rewriting the provision, Congress still chose not to use the more expressly jurisdictional language that it utilized elsewhere in the Act, which is inconsistent with the Government’s theory that Congress understood the predecessor provision to be jurisdictional and carried that forward in section 242(d)(1) of the Act.

• is not a logical conclusion.
  •  
• Foreclosure of jurisdictional sources outside section 242 of the Act does not indicate which provisions within section 242 of the Act are essential jurisdictional prerequisites.
• The fact that some provisions in a statutory section qualify as jurisdictional does not establish that all other provisions in the same statutory section are jurisdictional.
• Therefore, this Government assertion fails to demonstrate that Congress clearly made the exhaustion requirement in section 242(d)(1) of the Act jurisdictional.

4. With regard to alternative grounds for the appellate court to sua sponte require compliance with the exhaustion requirement in section 242(d)(1) of the Act:

• There is no need to consider this issue, because even if section 242(d)(1) of the Act applies, the Petitioner has done enough to satisfy it.  Specifically, section 242(d)(1) of the Act does not require the Petitioner to seek reconsideration from the BIA.

 

5. With regard to the Government’s argument that section 242(d)(1) of the Act requires seeking reconsideration because a noncitizen has the “right” to file a motion to reconsider:
   • •  

• The Government did not identify any other provision that uses “as of right” to describe the right to file a motion that appeals to the decisionmaker’s discretion.
• The Government identified no other provision that uses “as of right” to describe the right to file a motion that appeals to the decisionmaker’s discretion.
• In fact, the Government volunteered cancellation of removal, voluntary departure, and adjustment of status as examples of remedies not “available as of right.”  Yet eligible noncitizens can file requests for these forms of relief.
• The Government reads “as of right” out of section 242(d)(1) of the Act altogether.  If a noncitizen could not request reconsideration, there would be no remedy “available” to exhaust.  The statute’s additional requirement that the remedy be available “as of right” would be entirely superfluous.
• The phrase “as of right” should be read to distinguish between discretionary and nondiscretionary review.

• Section 242(d)(1) of the Act simply covers remedies that are “available . . . as of right” regardless of whether that characteristic is established by statute or regulation.

 

Commentary

In the Fifth Circuit, before Santos-Zacaria v. Garland, 598 U.S. ____ (2023) was decided on May 11, 2023, to establish a foundation for appellate court jurisdiction (i.e. by exhausting administrative remedies according to section 242(d)(1) of the Act) a petitioner was sometimes required to preserve an issue by filing a motion for reconsideration.  See Avelar-Oliva v. Barr, 954 F.3d 757, at 766 (5th Cir. 2020) (“Avelar-Oliva’s contention that the BIA misapplied the standard of review should have been presented to the BIA in a motion for reconsideration.”).  See, also, Sonia Maritzel Martinez-Guevara v. Garland (March 3, 2022) No. 20-60624.

Jurisdiction (based on exhaustion of administrative remedies) did not exist, according to the Fifth Circuit Court of Appeal if the petitioner alleged a new defect that the BIA “never had a chance to consider.”  Avelar-Oliva v. Barr, 954 F.3d 757, at 766 (5th Cir. 2020) (e.g. claims that the Board “engaged in impermissible fact finding,” Omari v. Holder, 562 F.3d 314, at 321 (5^th Cir. 2009); applied the wrong standard of review Avelar-Oliva, 954 F.3d 757, at 766 (5^th Cir. 2020); or the BIA’s ruling on a properly presented issue breached a procedural requirement or the petitioner’s due process rights, Roy v. Ashcroft, 389 F.3d 132, at 137 (5^th Cir. 2004) (per curiam) (“Procedural error correctable by the Board . . . properly subject to the exhaustion requirement”) all belonged to this unreviewable class.

Practitioners are now free from the uncertainty about whether to file a motion to reconsider as a condition precedent to establish appellate jurisdiction. 

No harm, however, is likely to arise from filing a motion to reconsider if the Immigration Judge or BIA overlooks an issue or misapplies a law or regulation either before or concurrent with filing a petition for review. 

At best, the administrative decision maker will correct the decision, clarify the decision or, at least, make the alleged error more conspicuous by ignoring it.

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