Opinion of the Court
must “exhaus[t] all administrative remedies available to the alien as of right.” The parties here dispute whether, to fulfill 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 specifics of the Board’s reconsideration process.
Pursuant to that process, after the Board renders a final 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 reopening accounts for “new facts.” §§1229a(c)(6)–(7); see 8 CFR §1003.2 (2022).[1]
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 “permission.” 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 judicial discretion.” Supreme Court Rule 10. Thus, because §1252(d)(1) requires exhausting only remedies available “as of right,” it does not
- ↑ Reconsideration and reopening are related forms of relief, and the parties’ arguments about §1252(d)(1) address both. But reconsideration is the pertinent one here because Santos-Zacaria alleges the Board committed an error of law.
