Cite as: 598 U. S. ____ (2023)
3
Syllabus
abuse of discretion, it remains a matter of discretion all the same. Finally, if seeking reconsideration qualified as exhausting a remedy “available … as of right,” the statutory scheme would become incoherent. Noncitizens would need to seek reconsideration in every case. Yet the statute is designed around pursuing judicial review and agency reconsideration in parallel. The Board would be flooded with reconsideration motions that noncitizens would not otherwise file. And courts would be flooded with pre-reconsideration petitions for review that, under the Government’s interpretation, would be unexhausted and therefore pointless. Pp. 13–17.
(c) Alert to the problems with requiring noncitizens to always seek reconsideration for exhaustion purposes, the Government instead would require seeking reconsideration only sometimes: when the noncitizen is raising an issue not previously presented to the agency. But seeking reconsideration does not qualify as a remedy “available … as of right” sometimes and not others. Instead, it does not qualify at all. The Government’s approach, moreover, would not fix the problem of producing pointless, unexhausted petitions for review. And it would introduce practical difficulties for courts, noncitizens, and the Board. Pp. 17–18.
22 F. 4th 570, vacated in part and remanded.
