Access to Justice

Santos-Zacaria v. Garland

In Santos-Zacaria v. Garland, the Supreme Court considered whether the exhaustion requirement of 8 U.S.C § 1252(d)(1) is jurisdictional.

Case Summary

Leon Santos-Zacaria seeks refuge in the United States because she fears persecution and torture on account of her sexual orientation in her country of origin, Guatemala. Even though the Board of Immigration Appeals concluded that she had experienced persecution in the past as a result of her sexual orientation, it denied her protection from removal because, in its view, she had not demonstrated that she would be persecuted in the future. And even though Santos-Zacaria had asked the Board to remand her case to the Immigration Judge for further examination of that exact question, the Board instead addressed the question in the first instance and dismissed the appeal.

Santos-Zacaria filed a petition for review of the Board’s decision. In January 2022, the United States Court of Appeals for the Fifth Circuit dismissed the appeal. The court held that Santos-Zacaria had not satisfied the exhaustion requirement of 8 U.S.C § 1252(d)(1), which states that before filing a petition for review of a removal order, a non-citizen must “exhaust[] all administrative remedies available to [her] as of right.” Even though the government did not argue that Santos-Zacaria failed to exhaust, the court concluded that § 1252(d)(1) is jurisdictional and therefore it lacked the authority to consider Santos-Zacaria’s petition.

In May 2022, Santos-Zacaria asked the Supreme Court to hear her case, and it agreed to do so.

On November 23, 2022, CAC, along with the National Immigration Litigation Alliance, filed an amici curiae brief in support of Santos-Zacaria. Our brief made three main points to support Santos-Zacaria’s argument that § 1252(d)(1)’s exhaustion requirement is not jurisdictional.

First, our brief explained that the Supreme Court has adopted a clear statement rule to determine whether statutory requirements are jurisdictional. In other words, Congress must state clearly that a requirement is jurisdictional before courts can treat it that way. Requiring clarity makes sense because jurisdictional prerequisites cannot be waived or forfeited by parties and can therefore be raised months or years into litigation and must be assessed by courts on their own. Jurisdictional rules therefore come at a cost to litigants and judges. The cost is especially great for non-citizens in removal proceedings, who frequently have limited English proficiency, are not guaranteed legal representation, and are often subject to mandatory detention.

Second, our brief argued that Congress has not clearly stated that § 1252(d)(1)’s exhaustion requirement is jurisdictional. The text of the statute provides no indication that Congress intended the exhaustion requirement to be jurisdictional. Notably, in other parts of the Immigration and Nationality Act, Congress was very explicit in providing that “no court shall have jurisdiction” over certain issues.

Finally, we explained that there is no long tradition of treating § 1252(d)(1)’s exhaustion requirement as jurisdictional. In fact, the Supreme Court has previously “treated as nonjurisdictional other types of threshold requirements that claimants must complete, or exhaust, before filing a lawsuit.”

In sum, the Fifth Circuit Court’s dismissal of Santos-Zacaria’s case for lack of jurisdiction has no basis in § 1252(d)(1)’s text or history, as § 1252(d)(1) did not meet the Supreme Court’s long-standing requirements regarding what makes a statute jurisdictional.

On May 11, 2023, the Supreme Court issued its decision concluding that § 1252(d)(1) is not jurisdictional. Echoing our brief, the Court explained that the statute is not jurisdictional because Congress did not use the sort of clear language necessary to impose the harsh consequences of a jurisdictional requirement.

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