Practice Advisory: Exhaustion of Administrative Remedies in Petitions for Review

NILA, May 16, 2023

"On May 11, 2023, the Supreme Court, in Santos-Zacaria v. Garland, 598 U. S. _, _ S. Ct. _, [2023 U.S. LEXIS 1891], 2023 WL 3356525 (2023), addressed 8 U.S.C. § 1252(d), the statutory exhaustion provision governing immigration petitions for review of removal orders. This advisory first explains what statutory exhaustion under § 1252(d) is and how it is distinct from issue exhaustion before the Board of Immigration Appeals (BIA), a form of exhaustion not addressed in Santos-Zacaria. Next, the advisory explains the Court’s two holdings: first, that § 1252(d) is a non-jurisdictional, claim-processing rule subject to waiver and forfeiture; and second, that noncitizens are not required to file motions to reconsider (or motions to reopen) of removal orders to satisfy § 1252(d)(1). The advisory also includes practical suggestions regarding application of the decision and its impact on prior exhaustion case law."