Page:Santos-Zacaria v. Garland.pdf/2

Syllabus

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. 3–4.

(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 efficiency in litigation. Treating an exhaustion requirement as jurisdictional would disserve that very interest. Second, §1252(d)(1)’s language differs substantially from more clearly jurisdictional language in related statutory provisions. Elsewhere, including in provisions enacted at the same time and in the same section as §1252(d)(1), Congress specified 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 jurisdictional. Pp. 4–7.

(c) Given the clear-statement rule, the Government offers no persuasive 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 Government fails to show that §1252(d)(1) clearly carried forward any understanding that a prior version of §1252(d)(1) (former §1105a(c)) was jurisdictional. Finally, §1252(d)(1)’s placement within §1252 is insufficient to establish that §1252(d)(1) is clearly jurisdictional. Pp. 7–11.

2. Section 1252(d)(1) does not require noncitizens to request discretionary forms of review, like reconsideration of an unfavorable Board of Immigration Appeals determination. Pp. 11–18.

(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. Reconsideration by the Board, however, is discretionary. Board reconsideration is therefore not available “as of right,” and §1252(d)(1) does not require a noncitizen to pursue it. Pp. 11–13.

(b) The Government cannot show that exhausting remedies “available … as of right” requires seeking Board reconsideration. The Government emphasizes a noncitizen’s right to file a motion to reconsider. But the right to request discretionary review does not make a remedy available 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