When it comes to statutory interpretation at the US Supreme Court, text is often center stage with practical concerns relegated to the background. Justice Antonin Scalia once said text is “the only thing that is relevant to [a] decision” and that “whether an outcome is desirable” has no bearing on the interpretive process.
But last week in Santos-Zacaria v. Garland, practical considerations snagged some of the spotlight as the court unanimously rejected the government’s effort to require noncitizens to petition the Board of Immigration Appeals for reconsideration of newly introduced errors before seeking review in federal courts of appeals. The decision emerged as immigration case backlogs have continued to worsen over the years.
Santos-Zacaria addressed two independent but related questions regarding 8 U.S.C. §1252(d)(1), which requires that noncitizens “exhaust[ ] all administrative remedies available ... as of right” before challenging a BIA removal order in federal court. First, is Section 1252(d)(1) jurisdictional? Second, does Section 1252(d)(1) require a noncitizen to assign error to the BIA’s decision in a motion to reconsider before petitioning for review?
The court answered both questions in the negative. Writing for the unanimous court, Justice Ketanji Brown Jackson concluded that “[e]xhaustion is typically nonjurisdictional for good reason” because “jurisdictional treatment could disserve the very interest in efficiency that exhaustion ordinarily advances.”
The court also held that Section 1252(d)(1) doesn’t require a noncitizen to pursue discretionary relief, such as reconsideration, to satisfy the exhaustion requirement—an interpretation that would create a “statutory scheme [that] would … produce pointless, unexhausted petitions for review.”
To be sure, the opinion engaged with many textualist exercises that are now familiar, including consulting Black Law’s Dictionary to decipher the meaning of operative phrases and comparing Section 1252(d)(1) with other jurisdictional statutes. But the opinion recognized, and indeed leaned on, the practical problems with the government’s interpretation of Section 1252(d)(1).
The court expressly noted that “[i]f exhaustion is jurisdictional, litigants must slog through preliminary nonjudicial proceedings even when … no party demands it or a court finds it would be pointless, wasteful, or too slow.” Similarly, the court noted the “practical difficulties” of requiring noncitizens to file a motion to reconsider with the BIA to properly exhaust, especially because they are “already navigating a complex bureaucracy, often pro se and in a foreign language[.]”
If text is the touchstone of statutory meaning, why this concern—unanimous concern, no less—about the practical effects of the government’s interpretation of Section 1252(d)(1)? Maybe because desperate times call for desperate measures.
As many amici explained, immigration backlogs have gone from bad to worse. At the end of 2016, there were about 520,000 pending cases before immigration courts; by 2022, that number had more than tripled. Faced with an unceasing and increasing influx of new cases, the BIA—currently comprised of only 23 permanent members, has struggled to keep pace. As of late 2020, the BIA’s “median case appeal time period” was 323 days—a number that includes faster moving appeals of non-removal decisions.
Despite these persistent backlogs, the government insisted that “new” errors introduced by a BIA decision must first be challenged in a motion to reconsider before they can be considered exhausted. Such a rule would worsen the BIA’s backlog and federal court workload by creating two tracks for review. On the one hand, noncitizens would routinely file motions for reconsideration of “new” errors with the BIA. Then in parallel, they would file petitions for review of the already exhausted issues in the federal courts of appeals. Where the BIA denied the motion to reconsider, the noncitizen would file a second petition for review. The court refused to require such a piecemeal process, which would likely be no more effective and far less efficient.
The unprecedented logjam in immigration courts has attracted concern and attention from Congress, the Department of Justice, and immigration advocates. And now, we can add the Supreme Court to that list. As the BIA struggles to stay above water, the government’s interpretation of Section 1252(d)(1) threatened to open the floodgates. With its decision in Santos-Zacaria, the Supreme Court has held the dam in place, for now.
The case is Santos-Zacaria v. Garland, U.S., No. 21-1436, 5/11/23.
The authors filed an amicus brief in collaboration with 26 nonprofit organizations whose missions include advocating for and on behalf of immigrants, refugees, and asylum seekers.
Mark Fleming is co-chair of WilmerHale’s appellate and Supreme Court litigation practice, with extensive experience in appellate advocacy.
Charlie Bridge is counsel at WilmerHale whose trial and appellate practice spans complex commercial litigation matters, including securities, consumer protection, shareholder and corporate governance, antitrust, and class action defense.
Tobi Kuehne is an associate at WilmerHale with a broad practice in contract disputes, bankruptcy litigation, antitrust, class action defense, internal investigations, and appellate advocacy.
Victoria Moreno is an associate at WilmerHale whose diverse trial and appellate practice includes securities litigation, intellectual property litigation, contract disputes, and internal investigations.