Opinion of the Court
Under the Government’s view, §1252(d)(1) bars judicial review until after she pursues reconsideration. Yet, elsewhere, the statutory scheme contemplates that she immediately petition for judicial review of the Board’s initial, prereconsideration decision. See ibid.; §§1252(b)(1), (6), 1229a(c)(6)(B). Any such petition is a worthless exercise, however, if it is unexhausted by definition, as the Government maintains.
The Government’s approach would also introduce practical difficulties. If motions to reconsider are required only sometimes, what cases qualify? In this very case, the members 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 factfinding would be impermissible. Compare 22 F. 4th, at 573 (majority opinion), with id., at 575 (Higginson, J., dissenting). And how are noncitizens—already navigating a complex bureaucracy, often pro se and in a foreign language—to tell the difference? The Government’s position presents a world of administrability headaches for courts, traps for unwary noncitizens, and mountains of reconsideration requests for the Board (filed out of an abundance of caution by noncitizens unsure of the need to seek reconsideration). For the reasons discussed, we are confident that Congress did not adopt such a scheme.[1]
- ↑ 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 contention that Congress “preclud[ed] the courts from considering any issue that had not been presented to the Board in the first instance,” Brief for Respondent 31. But beyond that, we do not address more generally what obligations noncitizens have to present specific issues when appearing before the agency.
