Santos-Zacaria v. Garland

598 U.S. 411

Opinion

PRELIMINARY PRINT

Volume 598 U. S. Part 2 Pages 411–431

OFFICIAL REPORTS OF

THE SUPREME COURT May 11, 2023

REBECCA A. WOMELDORF reporter of decisions

NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. OCTOBER TERM, 2022 411

Syllabus

SANTOS-ZACARIA aka SANTOS-SACARIAS v. GARLAND

certiorari to the united states court of appeals for the fth circuit No. 21–1436. Argued January 17, 2023—Decided May 11, 2023 Petitioner Leon Santos-Zacaria (who goes by the name Estrella) is a non- citizen in removal proceedings. She sought protection from removal, which an Immigration Judge denied. Santos-Zacaria appealed to the Board of Immigration Appeals, which upheld the Immigration Judge's decision. She then fled a petition for review in the Fifth Circuit under 8 U. S. C. § 1252, alleging that the Board had impermissibly engaged in factfnding that only the Immigration Judge could perform. The Fifth Circuit dismissed Santos-Zacaria's petition in part, fnding that she had not satisfed § 1252(d)(1)'s exhaustion requirement. Section 1252(d)(1) provides that “[a] court may review a fnal order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right. ” The Fifth Circuit raised the exhaustion issue sua sponte based on its characterization of § 1252(d)(1)'s exhaustion re- quirement as jurisdictional. And the Fifth Circuit concluded that Santos-Zacaria failed to exhaust because she failed to raise her impermissible-factfnding claim to the Board in a motion for reconsidera- tion before fling her petition for judicial review. Held: 1. Section 1252(d)(1)'s exhaustion requirement is not jurisdictional. Pp. 416–423. (a) A “jurisdictional” prescription sets the bounds of the “court's ad- judicatory authority,” Kontrick v. Ryan, 540 U. S. 443, 455, while nonju- risdictional rules govern how courts and litigants operate within those bounds. The “jurisdictional” tag carries potentially “[h]arsh conse- quences.” Fort Bend County v. Davis, 587 U. S. –––, –––. For exam- ple, courts must enforce jurisdictional rules sua sponte, even in the face of a litigant's forfeiture or waiver. Hamer v. Neighborhood Housing Servs. of Chicago, 583 U. S. 17, ––– – –––. To ensure that courts impose such consequences only when Congress unmistakably has so instructed, a rule is treated as jurisdictional “only if Congress `clearly states' that it is.” Boechler v. Commissioner, 596 U. S. –––, –––. Pp. 416–417. (b) Section 1252(d)(1) lacks the clear statement necessary to qualify as jurisdictional. First, exhaustion requirements are quintessential claim-processing rules, designed to promote effciency in litigation. Treating an exhaustion requirement as jurisdictional would disserve 412 SANTOS-ZACARIA v. GARLAND

that very interest. Second, § 1252(d)(1)'s language differs substantially from more clearly jurisdictional language in related statutory provi- sions. Elsewhere, including in provisions enacted at the same time and in the same section as § 1252(d)(1), Congress specifed that “no court shall have jurisdiction” to review certain matters. See, e. g., §§ 1252(a) (2)(A), (a)(2)(B), (a)(2)(C), 1182(a)(9)(B)(v), (d)(3)(B)(i). Taken together, these two features of § 1252(d)(1) establish that it is not clearly jurisdic- tional. Pp. 417–420. (c) Given the clear-statement rule, the Government offers no persua- sive reason to treat § 1252(d)(1) as jurisdictional. First, merely that a statute addresses the “court” and limits “review” does not necessarily mean the statute governs the court's jurisdiction. Second, the Govern- ment fails to show that § 1252(d)(1) clearly carried forward any under- standing that a prior version of § 1252(d)(1) (former § 1105a(c)) was juris- dictional. Finally, § 1252(d)(1)'s placement within § 1252 is insuffcient to establish that § 1252(d)(1) is clearly jurisdictional. Pp. 420–423. 2. Section 1252(d)(1) does not require noncitizens to request discre- tionary forms of review, like reconsideration of an unfavorable Board of Immigration Appeals determination. Pp. 423–431. (a) Section 1252(d)(1) requires exhausting only remedies “available . . . as of right.” In the context relevant here—review of a legal claim— that phrase means review that is guaranteed, not discretionary. Recon- sideration by the Board, however, is discretionary. Board reconsidera- tion is therefore not available “as of right,” and § 1252(d)(1) does not require a noncitizen to pursue it. Pp. 424–425. (b) The Government cannot show that exhausting remedies “available . . . as of right” requires seeking Board reconsideration. The Govern- ment emphasizes a noncitizen's right to fle a motion to reconsider. But the right to request discretionary review does not make a remedy avail- able as of right. Nor does § 1252(d)(1) draw a distinction, suggested by the Government, between those remedies made discretionary by statute and those made so by regulation. In addition, although the decision whether to grant reconsideration is reviewable for abuse of discretion, it remains a matter of discretion all the same. Finally, if seeking recon- sideration qualifed as exhausting a remedy “available . . . as of right,” the statutory scheme would become incoherent. Noncitizens would need to seek reconsideration in every case. Yet the statute is designed around pursuing judicial review and agency reconsideration in parallel. The Board would be fooded with reconsideration motions that nonciti- zens would not otherwise fle. And courts would be fooded with pre- reconsideration petitions for review that, under the Government's inter- pretation, would be unexhausted and therefore pointless. Pp. 425–429. (c) Alert to the problems with requiring noncitizens to always seek re- consideration for exhaustion purposes, the Government instead would re- Cite as: 598 U. S. 411 (2023) 413

Opinion of the Court

quire seeking reconsideration only sometimes: when the noncitizen is rais- ing an issue not previously presented to the agency. But seeking recon- sideration does not qualify as a remedy “available . . . as of right” some- times and not others. Instead, it does not qualify at all. The Government's approach, moreover, would not fx the problem of producing pointless, unexhausted petitions for review. And it would introduce practical diffculties for courts, noncitizens, and the Board. Pp. 429–430. 22 F. 4th 570, vacated in part and remanded.

Jackson, J., delivered the opinion of the Court, in which Roberts, C. J., and Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Alito, J., fled an opinion concurring in the judgment, in which Thomas, J., joined, post, p. 431.

Paul W. Hughes argued the cause for petitioner. With him on the briefs were Michael B. Kimberly, Andrew A. Lyons-Berg, Benjamin J. Osorio, Eugene R. Fidell, Charles A. Rothfeld, and Andrew J. Pincus. Yaira Dubin argued the cause for respondent. On the brief were Solicitor General Prelogar, Principal Deputy Assistant Attorney General Boynton, Deputy Solicitor Gen- eral Gannon, Colleen E. Roh Sinzdak, John W. Blakely, Andrew C. MacLachlan, and Aimee J. Carmichael.*

Justice Jackson delivered the opinion of the Court. Under 8 U. S. C. § 1252(d)(1), a noncitizen who seeks to challenge an order of removal in court must frst exhaust certain administrative remedies. This case presents two questions regarding that statutory provision. For the rea- sons explained below, we hold that § 1252(d)(1) is not jurisdic- tional. We hold further that a noncitizen need not request discretionary forms of administrative review, like reconsid- eration of an unfavorable Board of Immigration Appeals de-

*Briefs of amici curiae urging reversal were fled for the Constitutional Accountability Center et al. by Elizabeth B. Wydra, Brianne J. Gorod, Trina Realmuto, and Kristin MacLeod-Ball; and for Legal Services Pro- viders by Mark C. Fleming, Charles C. Bridge, and Melissa Crow. A brief of amici curiae was fled for Former Immigration Judges et al. by Dan L. Bagatell. 414 SANTOS-ZACARIA v. GARLAND

termination, in order to satisfy § 1252(d)(1)'s exhaustion requirement.1 I Petitioner Leon Santos-Zacaria (who goes by the name Es- trella) fed her native Guatemala in her early teens. She has testifed that she left that country, and fears returning, because she suffered physical harm and faced death threats as a transgender woman who is attracted to men. Santos-Zacaria eventually sought refuge in the United States. Her frst stay in the country was brief, and she was removed by immigration authorities in 2008. In 2018, she returned and was apprehended again by immigration authorities. At that point, Santos-Zacaria sought protection from re- moval, including withholding of removal based on the likeli- hood she would be persecuted in Guatemala. See 8 U. S. C. § 1231(b)(3)(A). An Immigration Judge within the Depart- ment of Justice entered an order reinstating Santos-Zacaria's prior removal order and denying the protection she sought. On appeal within the Department, the Board of Immigra- tion Appeals upheld the Immigration Judge's denial of with- holding of removal. The Board agreed with Santos-Zacaria in part, determining that she had suffered past persecution in Guatemala and was therefore entitled to a presumption of future persecution. But the Board found that this presump- tion was rebutted (which was an issue that the Immigration Judge had not reached). Santos-Zacaria then fled a petition for review in the U. S. Court of Appeals for the Fifth Circuit under 8 U. S. C. § 1252. Her petition contended, among other things, that when the Board concluded that the presumption of future persecution was rebutted, it had impermissibly engaged in factfnding that only the Immigration Judge could perform.

1 This opinion uses the term “noncitizen” as equivalent to the statutory term “alien.” See, e. g., Nasrallah v. Barr, 590 U. S. –––, –––, n. 2 (2020). Cite as: 598 U. S. 411 (2023) 415

In a 2-to-1 decision, the Court of Appeals dismissed Santos-Zacaria's impermissible-factfnding challenge for lack of jurisdiction, on the ground that she had failed to exhaust administrative remedies under § 1252(d)(1). 22 F. 4th 570, 573 (2022). The Government had not raised exhaustion, but the Court of Appeals did so sua sponte because it character- ized § 1252(d)(1) as establishing a jurisdictional requirement. The court further held that, because Santos-Zacaria had not raised the impermissible-factfnding challenge in a motion for reconsideration before the Board prior to fling her petition with the court, she had not satisfed § 1252(d)(1)'s exhaus- tion requirement. There is disagreement among the Courts of Appeals con- cerning the two issues presented in this case: (1) whether § 1252(d)(1)'s exhaustion requirement is jurisdictional,2 and (2) whether § 1252(d)(1) requires seeking discretionary ad- ministrative review, like reconsideration by the Board of Im- migration Appeals.3 We granted certiorari to resolve these conficts. 598 U. S. ––– (2022).

2 Compare, e. g., Chavarria-Reyes v. Lynch, 845 F. 3d 275, 279 (CA7 2016) (not jurisdictional), with, e. g., García-Cruz v. Sessions, 858 F. 3d 1, 7 (CA1 2017) ( jurisdictional); Lin v. Attorney Gen. of U. S., 543 F. 3d 114, 120, and n. 6 (CA3 2008) (same); Massis v. Mukasey, 549 F. 3d 631, 638 (CA4 2008) (same); Omari v. Holder, 562 F. 3d 314, 318–319 (CA5 2009) (same); Ramani v. Ashcroft, 378 F. 3d 554, 558–559 (CA6 2004) (same); Molina v. Whitaker, 910 F. 3d 1056, 1061 (CA8 2018) (same); Alvarado v. Holder, 759 F. 3d 1121, 1127, and n. 5 (CA9 2014) (same); Robles-Garcia v. Barr, 944 F. 3d 1280, 1283–1284 (CA10 2019) (same); and Alim v. Gonzales, 446 F. 3d 1239, 1253 (CA11 2006) (same), with, e. g., Zhong v. United States Dept. of Justice, 480 F. 3d 104, 119–122 (CA2 2007) ( jurisdictional as to remedy exhaustion but not issue exhaustion). 3 Compare, e. g., Olivas-Motta v. Whitaker, 910 F. 3d 1271, 1279–1280 (CA9 2018) (not required); and Indrawati v. United States Atty. Gen., 779 F. 3d 1284, 1299 (CA11 2015) (same), with, e. g., Meng Hua Wan v. Holder, 776 F. 3d 52, 57 (CA1 2015) (required when raising issues not previously presented to the agency); Omari, 562 F. 3d, at 319–320 (same); Mencia- Medina v. Garland, 6 F. 4th 846, 848–849 (CA8 2021) (same); and Sidabu- tar v. Gonzales, 503 F. 3d 1116, 1122 (CA10 2007) (same). 416 SANTOS-ZACARIA v. GARLAND

II Section 1252(d)(1) provides: “A court may review a fnal order of removal only if . . . the alien has exhausted all ad- ministrative remedies available to the alien as of right.” The frst question before us is whether this provision ranks as jurisdictional. We hold that it does not.

A A “jurisdictional” prescription sets the bounds of the “court's adjudicatory authority.” Kontrick v. Ryan, 540 U. S. 443, 455 (2004). By contrast, nonjurisdictional rules govern how courts and litigants operate within those bounds. Claim-processing rules, for example, “seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specifed times.” Henderson v. Shinseki, 562 U. S. 428, 435 (2011). “Harsh consequences attend the jurisdictional brand.” Fort Bend County v. Davis, 587 U. S. –––, ––– (2019) (alter- ation and internal quotation marks omitted). For example, because courts are not able to exceed limits on their adjudi- cative authority, they cannot grant equitable exceptions to jurisdictional rules. See Boechler v. Commissioner, 596 U. S. –––, ––– (2022). Jurisdictional objections also can be raised at any time in the litigation. Hamer v. Neighborhood Housing Servs. of Chicago, 583 U. S. 17, ––– – ––– (2017). Moreover, and most relevant here, courts must enforce juris- dictional rules sua sponte, even in the face of a litigant's forfeiture or waiver. Ibid. We treat a rule as jurisdictional “only if Congress `clearly states' that it is.” Boechler, 596 U. S., at ––– (quoting Ar- baugh v. Y & H Corp., 546 U. S. 500, 515 (2006)). And “[w]here multiple plausible interpretations exist—only one of which is jurisdictional—it is diffcult to make the case that the jurisdictional reading is clear.” 596 U. S., at –––. We adopted this clear-statement principle in Arbaugh “to leave the ball in Congress' court,” ensuring that courts impose Cite as: 598 U. S. 411 (2023) 417

harsh jurisdictional consequences only when Congress un- mistakably has so instructed. 546 U. S., at 515–516; see Wilkins v. United States, 598 U. S. 152, 157–158 (2023).

B Two aspects of § 1252(d)(1), taken together, persuade us that this statutory provision lacks the clear statement neces- sary to qualify as jurisdictional. First, § 1252(d)(1) imposes an exhaustion requirement, which is a quintessential claim-processing rule. When faced with a type of statutory requirement that “ordinarily [is] not jurisdictional,” we naturally expect the ordinary case, not an “exceptional one.” Sebelius v. Auburn Regional Medical Center, 568 U. S. 145, 154–155 (2013); see also, e. g., United States v. Kwai Fun Wong, 575 U. S. 402, 410 (2015). So it is here. We routinely “trea[t] as nonjurisdictional . . . thresh- old requirements that claimants must complete, or exhaust, before fling a lawsuit.” Reed Elsevier, Inc. v. Muchnick, 559 U. S. 154, 166, and n. 6 (2010).4 Indeed, we have yet to hold that any statutory exhaustion requirement is juris- dictional when applying the clear-statement rule that we adopted in Arbaugh. Exhaustion is typically nonjurisdictional for good reason. Jurisdictional treatment of an exhaustion requirement could 4 There are many examples. To name a few, we deemed exhaustion requirements nonjurisdictional in Fort Bend County v. Davis, 587 U. S. –––, ––– (2019) (Title VII, 42 U. S. C. §§ 2000e–5(e)(1), (f)(1)), EPA v. EME Homer City Generation, L. P., 572 U. S. 489, 511–512 (2014) (Clean Air Act, 42 U. S. C. § 7607(d)(7)(B)), Union Pacifc R. Co. v. Locomotive Engi- neers, 558 U. S. 67, 82 (2009) (Railway Labor Act, 45 U. S. C. § 152), and Woodford v. Ngo, 548 U. S. 81, 101 (2006) (Prison Litigation Reform Act, 42 U. S. C. § 1997e(a); see also Jones v. Bock, 549 U. S. 199, 211–217 (2007)). And we have repeatedly observed that exhaustion is usually non- jurisdictional. See, e. g., Patchak v. Zinke, 583 U. S. –––, ––– (2018) (plu- rality opinion) (naming “an exhaustion requirement” as a typical claim- processing rule); Jones, 549 U. S., at 212 (exhaustion is “usual[ ly] ” regarded “as an affrmative defense”). 418 SANTOS-ZACARIA v. GARLAND

undo the benefts of exhaustion. That is, exhaustion pro- motes effciency, including by encouraging parties to resolve their disputes without litigation. See Jones v. Bock, 549 U. S. 199, 219 (2007); McCarthy v. Madigan, 503 U. S. 140, 145 (1992). But jurisdictional treatment can result in the opposite: If exhaustion is jurisdictional, litigants must slog through preliminary nonjudicial proceedings even when, for example, no party demands it or a court fnds it would be pointless, wasteful, or too slow. Similarly, an exhaustion ob- jection raised late in litigation (as jurisdictional objections can be) might derail “many months of work on the part of the attorneys and the court.” Henderson, 562 U. S., at 434– 435 ( jurisdictional rules risk “the waste of judicial resources and may unfairly prejudice litigants”). Thus, jurisdictional treatment could disserve the very interest in effciency that exhaustion ordinarily advances. See Wilkins, 598 U. S., at 158 (“Given th[e] risk of disruption and waste that accompan- ies the jurisdictional label, courts will not lightly apply it to procedures Congress enacted to keep things running smoothly and effciently”). It would therefore be aberrant for the exhaustion require- ment in § 1252(d)(1) to be characterized as jurisdictional. Of course, “Congress is free to attach” jurisdictional conse- quences to a requirement that usually exists as a claim- processing rule. Henderson, 562 U. S., at 435. But to be confdent Congress took that unexpected tack, we would need unmistakable evidence, on par with express language addressing the court's jurisdiction. Nothing close appears here. Instead, a second feature of the statute compounds our doubt that § 1252(d)(1) qualifes as a jurisdictional rule: That provision's language differs substantially from more clearly jurisdictional language in related statutory provisions. Elsewhere in the laws governing immigration cases, Con- gress specifed that “no court shall have jurisdiction” to re- Cite as: 598 U. S. 411 (2023) 419

view certain matters.5 Over and over again, Congress used that language in provisions that were enacted at the same time—and even in the same section—as § 1252(d)(1).6 But Congress eschewed such plainly jurisdictional language in § 1252(d)(1). The contrast between the text of § 1252(d)(1) and the “unambiguous jurisdictional terms” in related provisions “show[s] that Congress would have spoken in clearer terms if it intended” for § 1252(d)(1) “to have similar jurisdictional force.” Gonzalez v. Thaler, 565 U. S. 134, 143 (2012); accord, Henderson, 562 U. S., at 438–439. And, here, there is good reason to infer that the linguistic contrast between § 1252(d)(1) and neighboring provisions is meaningful, not haphazard: Unlike other provisions, § 1252(d)(1) concerns ex- haustion, and its language tracks exhaustion's usual nonju- risdictional status. Taken together, these two features of § 1252(d)(1)—its con- tent as an exhaustion requirement and its contrast with related, plainly jurisdictional provisions—make interpreting § 1252(d)(1) as a claim-processing rule credible enough that we cannot deem it clearly jurisdictional. Thus, we conclude that § 1252(d)(1) is a nonjurisdictional rule “ `merely prescrib- [ing] the method by which the jurisdiction granted the courts by Congress is to be exercised.' ” Kontrick, 540 U. S., at 454 (quoting 12 C. Wright, A. Miller, & R. Marcus, Federal Practice and Procedure § 3141, p. 485 (2d ed. 1997)).

5 See, e. g., 8 U. S. C. §§ 1252(a)(2)(A), (a)(2)(B), (a)(2)(C), (b)(9), (g), 1182(a)(9)(B)(v), (d)(3)(B)(i), (d)(12), (h), (i)(2), 1158(a)(3), 1227(a)(3)(C)(ii), 1229c(f), 1255a(f)(4)(C); see also § 1225(b)(1)(D) (“the court shall not have jurisdiction”). 6 See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009–546, 3009–577, 3009–582, 3009–597, 3009–607, 3009– 612, 3009–638, 3009–639, 3009–649, 3009–691 (codifed at §§ 1182(a)(9)(B)(v), (d)(12), (h), (i)(2), 1158(a)(3), 1225(b)(1)(D), 1227(a)(3)(C)(ii), 1229c(f), 1252(a) (2)(A), (a)(2)(B), (a)(2)(C), (g), 1255a(f)(4)(C)). 420 SANTOS-ZACARIA v. GARLAND

C The Government offers several reasons why § 1252(d)(1) should nonetheless be characterized as jurisdictional. Given our clear-statement rule, none is persuasive. First, the Government insists that § 1252(d)(1) is jurisdic- tional because it is addressed to the “court” and limits “re- view.” But that language does not necessarily refer to the court's jurisdiction. Claim-processing rules can also be ad- dressed to courts. After all, one purpose of such rules is to “instruct the court on the limits of its discretion” in handling claims. Kontrick, 540 U. S., at 456. Provisions limiting “review” can be directions about the mode or manner of re- view that are likewise nonjurisdictional in nature. Exam- ples abound, including elsewhere in the same title and sec- tion as § 1252(d)(1). See, e. g., § 1252(b)(2) (“The court of appeals shall review the proceeding on a typewritten record and on typewritten briefs”); § 1535(a)(3) (“The Court of Ap- peals shall . . . review questions of law de novo”); 5 U. S. C. § 706 (“[T]he court shall review the whole record or those parts of it cited by a party”). Moreover, when taking other aspects of the statute into account, it becomes apparent that § 1252(d)(1) is not using “court” and “review” in a jurisdictional manner. Section 1252(d)(1) is not even focused solely on the court. It also requires that “the alien has exhausted” certain remedies, § 1252(d)(1) (emphasis added), so it “speak[s] to a party's pro- cedural obligations” as well, just like a nonjurisdictional claim-processing rule, Fort Bend County, 587 U. S., at ––– (alteration and internal quotation marks omitted). In addi- tion, as previously mentioned, Congress had expressly juris- dictional language close at hand. Supra, at 418–419. Its use of more ambiguous phrasing to impose a quintessential nonjurisdictional requirement is hardly the requisite clear statement that § 1252(d)(1) is jurisdictional. Second, the Government seeks to advance a theory that is based on a prior version of § 1252(d)(1)'s exhaustion require- Cite as: 598 U. S. 411 (2023) 421

ment. A statute that existed before § 1252(d)(1) 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.” 8 U. S. C. § 1105a(c) (1958 ed., Supp. III). According to the Government, that predecessor provision was jurisdictional, and Congress merely carried forward that understanding in § 1252(d)(1). But at each step of that theory, we fnd doubt, not clarity. To begin, the Government has not established that the predecessor provision was actually jurisdictional. Its text, standing alone, did not clearly govern the court's jurisdic- tion. So the Government turns to precedent. No prece- dent of this Court, however, established that the predecessor exhaustion provision was jurisdictional (in the sense that we now use the term). The Government principally invokes Stone v. INS, 514 U. S. 386 (1995), and Nken v. Holder, 556 U. S. 418 (2009). Both cases described portions of the Immigration and Na- tionality Act that contained § 1252(d)(1)'s predecessor as “ju- risdictional.” Stone, 514 U. S., at 399, 405; Nken, 556 U. S., at 424. But “[j]urisdiction, the Court has observed, is a word of many, too many, meanings,” and courts “have more than occasionally” used it to describe rules beyond those governing a court's adjudicatory authority. Fort Bend County, 587 U. S., at ––– – –––, and n. 4 (internal quotation marks omitted). Neither Stone nor Nken attends to the distinction between “jurisdictional” rules (as we understand them today) and nonjurisdictional but mandatory ones. Indeed, Stone pre- dates our cases, starting principally with Arbaugh in 2006, that “bring some discipline to the use of th[e] term” “jurisdic- tional.” Henderson, 562 U. S., at 435. Nken came later, but it never addressed the Arbaugh line of cases. And in both Stone and Nken, whether the provisions were jurisdic- tional “was not central to the case.” Reed Elsevier, 559 U. S., at 161. On top of all that, neither case addressed the 422 SANTOS-ZACARIA v. GARLAND

exhaustion requirement specifcally. Instead, both merely mentioned the section of the Immigration and Nationality Act that housed the exhaustion requirement. Stone, 514 U. S., at 399, 405; Nken, 556 U. S., at 424. Stone and Nken therefore cannot be read to establish the predecessor ex- haustion requirement as jurisdictional. The Government also points to pre-Arbaugh decisions by lower courts characterizing the predecessor exhaustion pro- vision as jurisdictional. Brief for Respondent 21, n. 6 (col- lecting cases). We have held, however, that pre-Arbaugh lower court cases interpreting a related provision are not enough to make clear that a rule is jurisdictional. MOAC Mall Holdings LLC v. Transform Holdco LLC, 598 U. S. –––, ––– (2023); Wilkins, 598 U. S., at 165; Boechler, 596 U. S., at –––; Reed Elsevier, 559 U. S., at 167–169. Further weakening the Government's reliance on the claimed jurisdictional status of § 1252(d)(1)'s predecessor is the fact that when it enacted § 1252(d)(1), Congress did not even recodify that prior provision exactly. Instead, Con- gress altered the formulation that, according to the Govern- ment, had been understood as a jurisdictional rule. Com- pare 8 U. S. C. § 1105a(c) (1958 ed., Supp. III) (a deportation order “shall not be reviewed by any court if ”) with 8 U. S. C. § 1252(d)(1) (1994 ed., Supp. II) (“[a] court may review a fnal order of removal only if ”). And having gone to the trouble of rewriting the provision, Congress still chose not to use the more expressly jurisdictional formulation that it utilized elsewhere. Supra, at 418–419. All of this is inconsistent with the Government's theory that Congress understood the predecessor provision to be jurisdictional and carried that forward in § 1252(d)(1). Finally, the Government suggests that § 1252(d)(1) is juris- dictional simply because it falls within § 1252. Section 1252 is the exclusive source of jurisdiction for immigration cases like this one, the Government contends, so each of § 1252's Cite as: 598 U. S. 411 (2023) 423

limits must be jurisdictional. Brief for Respondent 17–18.7 This logical leap falls short. Any foreclosure of sources of jurisdiction outside § 1252 does not tell us which provisions within § 1252 are essential jurisdictional prerequisites. And even if some provisions in a statutory section qualify as ju- risdictional, that does not suffce to establish that all others are. Sebelius, 568 U. S., at 155; Gonzalez, 565 U. S., at 146–147. This argument, like the Government's others, fails to demonstrate that it is “clea[r]” that Congress made § 1252(d)(1)'s exhaustion requirement jurisdictional. Ar- baugh, 546 U. S., at 515. * * * Because § 1252(d)(1)'s exhaustion requirement is not juris- dictional, it is subject to waiver and forfeiture. See Nutra- ceutical Corp. v. Lambert, 586 U. S. –––, ––– – ––– (2019). The Court of Appeals erred in holding otherwise.

Page Proof Pending III Publication The Government now suggests that even if § 1252(d)(1) is not jurisdictional, the Court of Appeals' sua sponte require- ment that Santos-Zacaria comply with § 1252(d)(1) can be jus- tifed on alternative grounds. Brief for Respondent 26, n. 7. We do not reach that issue. Instead, we hold that, even if § 1252(d)(1) were applied here, Santos-Zacaria has done enough to satisfy it. That is, § 1252(d)(1) does not require that Santos-Zacaria seek reconsideration from the Board, as the Court of Appeals believed. 7 For the proposition that § 1252 is the exclusive source of jurisdiction, the Government relies on two provisions. Section 1252(a)(5) states that “a petition for review fled . . . in accordance with this section shall be the sole and exclusive means for judicial review of ” certain removal orders. Section 1252(b)(9) states that “[j]udicial review of all questions of law and fact . . . arising from” removal proceedings “shall be available only in judicial review of a fnal order under this section,” and, with certain excep- tions, “no court shall have jurisdiction” under other provisions. 424 SANTOS-ZACARIA v. GARLAND

A Under the plain language of § 1252(d)(1), a noncitizen must “exhaus[t] all administrative remedies available to the alien as of right.” The parties here dispute whether, to fulfll this requirement, Santos-Zacaria had to seek a certain form of review of her legal claim: reconsideration by the Board of Immigration Appeals. Whether exhaustion for § 1252(d)(1) purposes requires seeking Board reconsideration turns on the meaning of “remedies available . . . as of right,” which, in turn, relates to the specifcs of the Board's reconsidera- tion process. Pursuant to that process, after the Board renders a fnal decision, it can provide additional review via reconsideration and its close cousin, reopening. Reconsideration addresses “errors of law or fact in the previous order,” while reopen- ing accounts for “new facts.” §§ 1229a(c)(6)–(7); see 8 CFR § 1003.2 (2022).8 Meanwhile, it is well established that a remedy is not available “as of right” if it is discretionary. “As of right” is a familiar phrase in the law, meaning “[b]y virtue of a legal entitlement.” Black's Law Dictionary 141 (11th ed. 2019). And in the context relevant here—review of a legal claim— the phrase means review that is guaranteed, not contingent on permission or discretion. An “appeal as of right” is one over which the court “has no discretion to deny review.” Id., at 121. By contrast, “discretionary review” is review “that is not a matter of right” and instead requires “permis- sion.” Id., at 1579. Under the Federal Rules, for instance, an appeal “as of right,” Fed. Rule App. Proc. 3, stands in contrast to an appeal “within the [court's] discretion,” Fed. Rule App. Proc. 5. To take another example, this Court's certiorari review is “not a matter of right, but of 8 Reconsideration and reopening are related forms of relief, and the par- ties' arguments about § 1252(d)(1) address both. But reconsideration is the pertinent one here because Santos-Zacaria alleges the Board com- mitted an error of law. Cite as: 598 U. S. 411 (2023) 425

judicial discretion.” Supreme Court Rule 10. Thus, be- cause § 1252(d)(1) requires exhausting only remedies avail- able “as of right,” it does not require exhausting discretion- ary review. Board reconsideration and reopening are discretionary. By regulation, today and at the time of § 1252(d)(1)'s enact- ment, “[t]he decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board.” 8 CFR § 1003.2(a) (2022); 8 CFR § 3.2 (1996); 61 Fed. Reg. 18904 (1996); see Dada v. Mukasey, 554 U. S. 1, 12–13 (2008) (trac- ing history of discretion to reopen back to 1916). That means a noncitizen can request reconsideration. But only if “the motion to reconsider is granted” does the Board proceed to make the “decision upon such reconsideration” as to whether to “affrm, modify, or reverse the original decision.” 8 CFR § 1003.2(i). And, again, whether to grant the motion to reconsider, and thus proceed to such review, is up to the Board in its discretion. § 1003.2(a); In re O-S-G-, 24 I. & N. Dec. 56, 57 (BIA 2006) (“[W]e have authority to deny a mo- tion to reconsider as a matter of discretion”); cf. § 1003.2(a) (“The Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief ”). Because Board reconsideration (like reopening) is a discre- tionary form of review, it is not available to the noncitizen “as of right.” Section 1252(d)(1) therefore does not require a noncitizen to pursue it. B The Government acknowledges that because § 1252(d)(1) requires only exhaustion of remedies “available . . . as of right,” “a noncitizen need not exhaust `discretionary' reme- dies.” Brief for Respondent 39. It also acknowledges that Board reconsideration is discretionary. Id., at 41, n. 11; Brief in Opposition 15–16. Still, the Government tries to squeeze reconsideration into the statutory requirement of remedies available “as of right.” We are unpersuaded. 426 SANTOS-ZACARIA v. GARLAND

According to the Government, § 1252(d)(1) requires seek- ing reconsideration because a noncitizen has the “right” to fle a motion to reconsider. But that is a peculiar under- standing of a remedy available “as of right.” The Govern- ment identifes no other provision that uses “as of right” to describe the right to fle a motion that appeals to the deci- sionmaker's discretion. Tr. of Oral Arg. 35. A discretion- ary appeal, for example, is not “as of right” just because a litigant has a right to fle a petition for permission to appeal. See, e. g., 28 U. S. C. § 1292(b); Fed. Rule Civ. Proc. 23(f). That understanding of “as of right” is so unnatural that even the Government does not fully embrace it, as its view of other forms of relief reveals. Cancellation of removal, voluntary departure, and adjustment of status are discre- tionary types of immigration relief available to noncitizens only as a matter of grace, not entitlement. 8 U. S. C. §§ 1229b, 1229c, 1255; see Kucana v. Holder, 558 U. S. 233, 247–248 (2010). And the Government accordingly volun- teers them as examples of remedies “not `available' to [a non- citizen] `as of right.' ” Brief for Respondent 39 (quoting § 1252(d)(1)). Yet eligible noncitizens can fle requests for those forms of relief. See §§ 1229b, 1229c, 1255; 8 CFR §§ 1240.20, 1240.26, 1245.1. Even the Government does not say these are remedies available “as of right” just because noncitizens have a right to request them. The Government's reading has a further faw. Under- standing the motion for reconsideration as a remedy “avail- able . . . as of right” does not just read “as of right” unnatu- rally; it reads it out of § 1252(d)(1) altogether. Under the Government's view, there is a remedy that is “available . . . as of right” here because the noncitizen is entitled to request reconsideration by fling a motion. See Brief for Respond- ent 38–39. But if a noncitizen could not request reconsider- ation, there would be no remedy “available” for the nonciti- zen to exhaust. The statute's additional requirement that Cite as: 598 U. S. 411 (2023) 427

the remedy be available “as of right” would be entirely su- perfuous. Instead, we read the phrase “as of right” to do its usual work in the context of review of a legal claim: distin- guishing between discretionary and nondiscretionary review. Switching gears, the Government suggests that § 1252(d)(1) excludes only remedies made discretionary by statute, while reconsideration and reopening are made dis- cretionary by regulation. Id., at 39–40. True, Congress elsewhere focused on discretion specifed by statute. We considered such a provision in Kucana v. Holder, addressing administrative actions “ `the authority for which is specifed under this subchapter to be in the discretion of the Attorney General.' ” 558 U. S., at 237 (quoting § 1252(a)(2)(B)(ii)). But § 1252(d)(1) draws no such line. It simply covers reme- dies that are “available . . . as of right.” Whether that char- acteristic is established by statute or regulation makes no difference. It is especially implausible that § 1252(d)(1) treats recon- sideration and reopening as “available . . . as of right” just because the discretion whether to grant them is not specifed by statute. As we noted previously, when Congress enacted § 1252(d)(1), regulation and historical practice had already frmly established Board reconsideration and reopening as discretionary. Supra, at 425; 8 CFR § 3.2 (1996); Dada, 554 U. S., at 12–13. We have no reason to think § 1252(d)(1) cate- gorizes those well-understood discretionary forms of review as “available . . . as of right.” The Government also posits that reconsideration and re- opening are “available . . . as of right” because in certain cases, denying the noncitizen's motion would be reversible as an abuse of discretion. See Brief for Respondent 41, n. 11; Tr. of Oral Arg. 39. All this shows is that the agency's dis- cretion has limits. That is no surprise. “Traditionally, . . . decisions on matters of discretion are reviewable for abuse of discretion.” Highmark Inc. v. Allcare Health Management 428 SANTOS-ZACARIA v. GARLAND

System, Inc., 572 U. S. 559, 563 (2014) (internal quotation marks omitted). They remain “matters of discretion” all the same. Finally, not only do the Government's theories fail on their own terms, but they also share a common problem: They would render the statutory scheme incoherent. The Gov- ernment urges that reconsideration (or at least a motion to reconsider) is an “administrative remed[y] available . . . as of right,” § 1252(d)(1). Yet § 1252(d)(1) requires “exhaus[ting] all” such remedies, without exception. So if the Govern- ment is correct, noncitizens would need to seek reconsidera- tion from the Board before obtaining judicial review in every case. But that obligation is incompatible with the rest of the statute's design. In particular, elsewhere, the statute provides for a process that does not require reconsideration before judicial review. Noncitizens are authorized to seek judicial review of an agency order and, additionally, to seek administrative review of the agency's decision via a “motion to reopen or recon- sider the order.” See § 1252(b)(6). The statute gives non- citizens the same 30-day window from the agency order to seek judicial review and administrative reconsideration. §§ 1252(b)(1), 1229a(c)(6)(B). The statute is thus designed around pursuing judicial review and agency reconsideration in parallel, not waiting to seek judicial review until after reconsideration is complete. With respect to a prior version of this scheme, we observed that, if a noncitizen seeks recon- sideration, the statute plainly “contemplates” that “two sep- arate petitions for [judicial] review will exist in the normal course”: one from the agency's initial order and a later one from its decision on the reconsideration motion. Stone, 514 U. S., at 393–395. If reconsideration were required for exhaustion, however, only one petition—the later one—would pass muster. The frst petition would be premature. So the Government's in- terpretation of remedies “available . . . as of right” would Cite as: 598 U. S. 411 (2023) 429

not just food the Board with reconsideration motions that noncitizens otherwise would not fle; it would also food the courts with pointless premature petitions—petitions that the statutory scheme would provide for noncitizens to fle, on the one hand, yet deem unexhausted, on the other. We decline to interpret the statute to be so at war with itself.

C Conceding that it “would be inconsistent with” the design of the statute to require noncitizens to always fle a motion to reconsider for exhaustion purposes, the Government in- stead would require such a motion only sometimes: when the noncitizen is raising an issue not previously presented to the agency. Brief for Respondent 36–37. According to the Government, a noncitizen must give the agency an opportu- nity to consider an issue before raising it in court. So in the Government's view, a motion to reconsider is required when it is the only remaining mechanism for presenting a new issue, but not when the noncitizen has already presented every issue to the agency in other ways.9 That is not the scheme Congress adopted. Section 1252(d)(1) does not require noncitizens to give the agency an opportunity to consider an objection using every mechanism available. It requires exhausting only administrative reme- dies “available . . . as of right.” And we do not see how seeking reconsideration can qualify sometimes and not oth- ers. Instead, for the reasons already explained, it does not qualify at all. Supra, at 424–429. Nor would the Government's approach cure the inconsist- ency identifed above: The statutory scheme would still produce pointless, unexhausted petitions for review. See 9 Here, for example, Santos-Zacaria objects that the Board conducted impermissible factfnding. Because that issue arose in the Board's deci- sion, the Government says, Santos-Zacaria had not previously raised her objection to the Board but she could have done so in a motion to recon- sider. In the Government's view, she needed to take that option. 430 SANTOS-ZACARIA v. GARLAND

supra, at 428–429. Consider, for example, a noncitizen whose only issue for judicial review is one she had not raised previously because the Board's decision introduced the issue. Under the Government's view, § 1252(d)(1) bars judicial review until after she pursues reconsideration. Yet, else- where, the statutory scheme contemplates that she immedi- ately petition for judicial review of the Board's initial, prere- consideration decision. See ibid.; §§ 1252(b)(1), (6), 1229a(c) (6)(B). Any such petition is a worthless exercise, however, if it is unexhausted by defnition, as the Government maintains. The Government's approach would also introduce practical diffculties. If motions to reconsider are required only sometimes, what cases qualify? In this very case, the mem- bers of the Court of Appeals panel disagreed about whether a motion to reconsider was required under the Government's rule, largely because they differed over whether Santos- Zacaria had asserted adequately to the Board earlier that new factfnding would be impermissible. Compare 22 F. 4th, at 573 (majority opinion), with id., at 575 (Higginson, J., dis- senting). And how are noncitizens—already navigating a complex bureaucracy, often pro se and in a foreign lan- guage—to tell the difference? The Government's position presents a world of administrability headaches for courts, traps for unwary noncitizens, and mountains of reconsidera- tion requests for the Board (fled out of an abundance of cau- tion by noncitizens unsure of the need to seek reconsidera- tion). For the reasons discussed, we are confdent that Congress did not adopt such a scheme.10

10 Under our holding, § 1252(d)(1) does not require a noncitizen to seek discretionary Board review to raise issues that she had not raised to the Board before. To that limited extent, we reject the Government's conten- tion that Congress “preclud[ed] the courts from considering any issue that had not been presented to the Board in the frst instance,” Brief for Re- spondent 31. But beyond that, we do not address more generally what Cite as: 598 U. S. 411 (2023) 431

Alito, J., concurring in judgment

* * * Section 1252(d)(1)'s exhaustion requirement is not jurisdic- tional and does not oblige a noncitizen to seek discretionary review, like reconsideration before the Board of Immigration Appeals. We vacate the portion of the judgment of the Court of Appeals dismissing Santos-Zacaria's petition for re- view and remand the case for further proceedings consistent with this opinion. It is so ordered.

Justice Alito, with whom Justice Thomas joins, con- curring in judgment. I agree with the Court that 8 U. S. C. § 1252(d)(1) does not require the fling of a motion for reconsideration under the circumstances presented here. That provision requires the exhaustion of those administrative remedies that are “avail- able to [an] alien as of right,” but the decision to grant recon- sideration is discretionary. 8 CFR § 1003.2(a) (2022). Be- cause that determination disposes of this case, I would not decide whether § 1252(d)(1) is jurisdictional with respect to the administrative remedies to which it does apply.

obligations noncitizens have to present specifc issues when appearing be- fore the agency. Reporter’s Note

The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pagination makes available the offcial United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or fled briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made:

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