Immigration and Citizenship

RELEASE: Supreme Court Considers Access to Courts for Asylum-Seekers

WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Santos-Zacaria v. Garland, a case in which the Court is considering whether a certain step in the immigration appeals process is jurisdictional, Constitutional Accountability Center (CAC) Appellate Counsel Smita Ghosh said:

At today’s oral argument, the Justices considered the case of Leon Santos-Zacaria, a citizen of Guatemala who seeks review of the Board of Immigration Appeals decision that she did not qualify for asylum protection. Among other things, Santos-Zacaria argued that the statutory requirement that non-citizens take advantage of all administrative remedies within the immigration court system before filing in federal court is not jurisdictional and therefore can be waived by the government or excused by judges in exceptional circumstances.

This issue is an important one because jurisdictional rules come at a cost to litigants and judges, and the cost is particularly 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 during their proceedings.

As CAC explained in an amici curiae brief filed with the National Immigration Litigation Alliance, such requirements should only be considered jurisdictional if Congress has clearly stated that they are. And here, the language Congress used is not clearly jurisdictional, as several justices seemed to acknowledge during the course of this morning’s argument. Further, many of the Justices drew upon prior cases in which the Court has stated that statutory “exhaustion” requirements like this one do not tend to implicate courts’ jurisdiction—and therefore are subject to waiver if, as here, the government fails to press the issue.

In this case, the Court should follow those precedents and conclude that the provision at issue in this case does not meet the Court’s long-standing requirements regarding what makes a statute jurisdictional.



Amici curiae brief in Santos-Zacaria v. Garland:


Constitutional Accountability Center is a nonpartisan think tank and public interest law firm dedicated to fulfilling the progressive promise of the Constitution’s text, history, and values. Visit CAC’s website at


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