Opinion of the Court
the statutory scheme would provide for noncitizens to file, 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 file a motion to reconsider for exhaustion purposes, the Government instead 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 opportunity 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.[1]
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 remedies “available … as of right.” And we do not see how seeking reconsideration can qualify sometimes and not others. Instead, for the reasons already explained, it does not qualify at all. Supra, at 12–16.
Nor would the Government’s approach cure the inconsistency identified above: The statutory scheme would still produce pointless, unexhausted petitions for review. See supra, at 16–17. 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.
- ↑ Here, for example, Santos-Zacaria objects that the Board conducted impermissible factfinding. Because that issue arose in the Board’s decision, the Government says, Santos-Zacaria had not previously raised her objection to the Board but she could have done so in a motion to reconsider. In the Government’s view, she needed to take that option.
