CASE PREVIEW
By Jamelle C. Sharpe
on Jan 14, 2023
at 5:56 pm
The nation’s immigration courts are breaking under the cumulative weight of a byzantine statutory scheme, chronic understaffing, and insurmountable case backlogs. The noncitizens appearing before them face a host of daunting challenges — language barriers, financial strain, lack of legal assistance, and years-long delays — before they can entertain any hope of resolving their immigration status. Against this rather bleak backdrop comes the low-profile case of Santos-Zacaria v. Garland, which the Supreme Court will hear on Tuesday. In a nutshell, it asks whether noncitizens must petition the Board of Immigration Appeals to reconsider its alleged errors before seeking review in the federal courts of appeals. This question has split the circuits, and the Supreme Court’s answer could significantly impact noncitizens facing deportation and the immigration courts tasked with hearing their pleas for relief.
The case arose from the government’s attempt to deport Leon Santos-Zacaria, a 34-year-old transgender woman and citizen of Guatemala. Santos-Zacaria left home at age 13 or 14, after which she lived in Mexico for several years. She also unlawfully entered the United States at least twice, leading to her deportation to Guatemala in 2008 and 2012. Despite these prior deportations, Santos-Zacaria returned to the United States in May 2018. She was detained and subsequently applied for a type of humanitarian relief known as “withholding of removal” under the Immigration & Nationality Act. She also applied for protection under the Convention Against Torture, an international treaty.
Under the INA, a withholding-of-removal applicant must show they are likely to be persecuted in the country to which the government will send them. Notably, the presiding immigration judge must presume that the applicant will be persecuted in the future if they show that they were previously persecuted because of their membership in a protected group. The protected groups are listed in Department of Homeland Security regulations and include race and membership in a particular social group (such as the LGBTQ+ community). However, the government can rebut this presumption by showing that the applicant’s life or freedom would not be threatened in the removal country due to their membership in a protected group. The government can also rebut the presumption by showing that the applicant can safely and reasonably relocate to any part of the removal country. The Convention Against Torture operates similarly. The noncitizen must show that sending them to the removal country will more likely than not result in them being tortured with the government’s consent or acquiescence.
In a “withholding only” hearing before an immigration judge, Santos-Zacaria alleged that she was persecuted in Guatemala for being a gay and transgender person. She asserted that a neighbor raped her at 12 years old because she was gay, that she was threatened with death if she did not leave her community, and that she was ridiculed and threatened because of her walk, appearance, and manner of dress. She declined to report these incidents to the police, believing they would do nothing to protect her. She also admitted that, despite these concerns, she had voluntarily returned to Guatemala several times over the years. Additionally, under questioning by the judge and the government, Santos-Zacaria seemed to acknowledge that some Guatemalan cities might be more accepting of members of the LGBTQ+ community than the one in which she grew up. She also preferred to stay in the United States because her brother, who currently resides here, could continue to help her.
The immigration judge denied Santos-Zacaria’s application and reinstated her original deportation order. Even if true, the judge found that her allegations were insufficient to establish past or future persecution under the INA. The judge likewise found Santos-Zacaria ineligible for protection under the Convention Against Torture because the record did not indicate she would be tortured with the consent or acquiescence of the Guatemalan government upon her return.
On review, the Board of Immigration Appeals ultimately affirmed the judge’s decision. The BIA rejected the judge’s conclusion that Santos-Zacaria had not been subjected to past persecution as part of the LGBTQ+ community, holding instead that she was entitled to a presumption of future persecution. However, the board also found that the government had successfully rebutted this presumption. It cited several reasons for doing so, including that Santos-Zacaria’s rape took place a long time ago; she did not report it or know her attacker’s whereabouts; she had voluntarily returned to Guatemala several times without harm; and she recognized that there might be places in Guatemala to which she might safely relocate. The board also rejected Santos-Zacaria’s claim under the convention, agreeing with the judge that she had failed to show a likelihood of government-condoned torture if removed to Guatemala.
Santos-Zacaria appealed to the U.S. Court of Appeals for the 5th Circuit, where a divided panel upheld the BIA’s decision. She claimed that the BIA failed to support its presumption determination with substantial evidence and wrongly concluded that she was ineligible for protection under the convention. More importantly, Santos-Zacaria argued the board based its presumption determination on facts it was not permitted to find. Whether DHS has rebutted the presumption is a factual question that must first be answered by the immigration judge. Here, however, Santos-Zacaria argued the judge never reached that question. Instead, the judge found that she had never been persecuted. Accordingly, she claimed the BIA anchored its holding in facts the judge did not find and that DHS regulations prohibited the BIA from independently finding.
It is here that the questions presented to the Supreme Court pop up. A divided panel of the 5th Circuit concluded that it lacked jurisdiction to consider Santos-Zacaria’s presumption argument. Section 1252(d)(1) of the INA states that a federal appellate court “may review a final order of removal only if … the [noncitizen] has exhausted all administrative remedies available to the [noncitizen] as of right.” Under 5th Circuit precedent, the noncitizen must give the BIA a chance to address its alleged mistakes, even if that means returning to the BIA immediately after it has issued a final decision. Since Santos-Zacaria failed to do this, the court decided it had no authority under the INA to hear her claim. The court likewise rejected Santos-Zacaria’s other claims that the BIA’s presumption determination was not supported by substantial evidence and that she was ineligible for protection under the convention. The dissenting 5th Circuit judge believed that Santos-Zacaria had preserved the presumption issue by asking the BIA to remand her case to the immigration judge for additional factfinding.
The parties now present the Supreme Court with two questions relating to the 5th Circuit’s interpretation of INA Section 1252(d)(1). The first is whether this statutory exhaustion requirement is jurisdictional or procedural. Here, “jurisdiction” refers to courts’ authority to hear parties’ claims, and “procedural” refers to the steps parties must take before the merits of the claims can be assessed. The circuits have split on this, as the parties note in their filings. Eight circuits to consider the matter (the 1st, 3rd, 4th, 5th, 6th, 9th, 10th, and 11th) deem it jurisdictional. In other words, they interpret Section 1252(d)(1) as depriving them of subject-matter jurisdiction over an issue when a noncitizen fails to dispute it before the BIA. Two circuits (the 2nd and 7th) disagree. They have decided that failure to exhaust discrete issues is merely a procedural defect that leaves their subject-matter jurisdiction intact. Accordingly, these courts will reach unexhausted issues the government waives or forfeits.
Unsurprisingly, Santos-Zacaria insists that Section 1252(d)(1) creates a procedural requirement that the government waived in the 5th Circuit. She argues that the Supreme Court’s recent jurisdiction jurisprudence adopts a clear-statement rule that Section 1252(d)(1) does not satisfy. The provision does not refer to “jurisdiction,” nor does it delineate a class or category of cases the appellate courts are permitted to hear. Section 1252’s other provisions clearly speak to the courts’ jurisdiction, further indicating that 1252(d)(1) does not. Amici writing in support of Santos-Zacaria’s position add that, in 1996, Congress inserted expressly jurisdictional language in at least 12 parts of the INA but did not do so for 1252(d)(1).
Regarding the scope of exhaustion under Section 1252(d)(1), Santos-Zacaria claims that it covers remedies, not individual issues (consistent with precedent in the 2nd and 7th Circuits). Moreover, Santos-Zacaria says that a long-standing assumption that agency decisions are judicially reviewable supports her position. Indeed, the court has increasingly favored judicial review of administrative action since at least the early 1970s. That being said, it is an open question whether this general sentiment applies with equal force to immigration decisions.
In addition to these interpretive arguments, Santos-Zacaria says treating Section 1252(d)(1) as jurisdictional would produce undesirable consequences. Courts already have an affirmative obligation to test their subject-matter jurisdiction (their authority to hear parties’ claims) at all stages of litigation. Santos-Zacaria argues that reading the 1252(d)(1) exhaustion requirement as a jurisdictional limitation would needlessly force them to answer difficult questions about the scope of their authority. Moreover, they would have to answer these questions when they could more easily resolve cases on the merits, they would not benefit from briefings from the parties, and immigration cases are already too numerous and dauntingly complicated. Such a reading would also cast doubt on the finality and soundness of deportation determinations, as noncitizens and courts would always question their jurisdictional validity. Accordingly, she believes the 5th Circuit was wrong not to consider her claim on the merits.
The government counters that Section 1252(d)(1) clearly restricts the court of appeals’ power to hear issues not exhausted in BIA deportation proceedings. In particular, the government points out that Congress need not use the term “jurisdiction” to limit the cases federal courts may hear. Instead, it points to provisions in which the Supreme Court has found the word “review” — used in Section 1252(d)(1) — as imposing a jurisdictional limit. Moreover, the government notes that the court distinguishes between statutes addressing litigants or claims (which are merely procedural) and those addressing courts or their powers (which are jurisdictional). Here, Section 1252(d)(1) speaks directly to the appellate courts, instructing them to review a BIA final removal order “only if” the noncitizen has exhausted her administrative remedies. Further, the government notes that the court has treated “review” and “jurisdiction” as interchangeable in other parts of Section 1252 and other INA provisions limiting judicial jurisdiction.
The second question presented is whether Section 1252(d)(1)’s exhaustion requirement obligated Santos-Zacaria to submit her impermissible factfinding allegation to the BIA in a motion to reconsider before appealing to the 5th Circuit. She argues it did not. Even if Section 1252(d)(1) is jurisdictional rather than procedural, she believes that a motion to reconsider is discretionary and therefore does not count as an administrative remedy available to her “as of right.” Applicable DHS regulations state that the board can grant or deny these motions at its discretion. Indeed, the government itself acknowledges this, observing in its brief that the board can deny a reconsideration motion even when the noncitizen satisfies the test for granting it. Despite this admission, the government believes that Section 1252(d)(1) required Santos-Zacaria to return to the BIA to reconsider its allegedly impermissible factfinding. It notes that Section 1252(d)(1)’s plain text requires administrative exhaustion before judicial review, and that this requirement is consistent with long-standing administrative-law doctrine to the same effect. Moreover, the government argues that the INA’s administrative-review scheme and implementing regulations require presentation of specific issues to the BIA for exhaustion. Without such specificity, the BIA and reviewing courts would be unable to evaluate the noncitizen’s arguments properly.
Finally, the government interprets the phrase “as of right” in the statute as referring to Santos-Zacaria’s right to file a motion for reconsideration, not to her right to a particular outcome or form of relief. In other words, the government believes that Section 1252(d)(1) is satisfied if the INA allows Santos-Zacaria to request the BIA’s reconsideration. It does not require that she be entitled to a favorable judgment from the BIA. As Santos-Zacaria and amici point out, this is a curious argument. Presumably, noncitizens always have a “right” to request discretionary relief from immigration officials. If applied broadly, the government’s reading implies that noncitizens could only exhaust their administrative remedies by always moving for reconsideration in every immigration proceeding. To this, the government responds that Congress included the “as of right” language in Section 1252(d)(1) to distinguish it from other, genuinely discretionary decisions under the INA. This latter category includes acts of pure administrative grace to which noncitizens have no claim, such as follow-on motions for reconsideration and remedies like cancellation of removal that attorneys general grant in their sole discretion.
One might ultimately wonder whether the distinction between “jurisdictional” and “procedural,” or requiring removable noncitizens to file motions for reconsideration before going to the appellate courts, makes any practical difference. After all, it seems likely that Santos-Zacaria’s deportation order will be reinstated regardless of whether the 5th Circuit lacked jurisdiction or whether she failed to follow the required procedures. As an amicus brief filed by former immigration judges and BIA members points out, requiring noncitizens to file reconsideration motions before pursuing judicial review could have several significant consequences for both Santos-Zacaria and the immigration courts. They observe that the BIA can take months or even years to resolve a reconsideration motion, during which many noncitizens would remain in detention. Moreover, filing the motion does not automatically stay deportation, so at least some noncitizens would be deported before the BIA issues a decision. Deportation would not necessarily moot the motion, but it would clearly be harder for noncitizens to participate in the proceedings from outside of the country.
In any event, the BIA rarely grants motions for reconsideration. Additionally, the immigration courts already labor under staggering case backlogs. While requiring noncitizens to seek reconsideration would protect the federal judiciary’s resources, it would also substantially increase immigration judges’ caseloads. This increase, in turn, would likely slow immigration judges’ clearance rates and the time and attention they devote to each case. One could reasonably question whether the additional work is worthwhile given the costs, especially considering how few reconsideration motions succeed.
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