Santos-Zacaria v. Garland: exhaustion is not jurisdictional, and you need not first ask the BIA to reconsiderSantos-Zacaria v. Garland, 598 U.S. 411 (2023)

Wang Law Firm, LLC · David Wang, Managing Attorney · Attorney-reviewed · Updated October 2026

At a glance

Background: what is "exhaustion of administrative remedies"?

Immigration court cases are generally heard first by an immigration judge and then appealed to the BIA; after the BIA issues a final decision, the noncitizen can file a petition for review in a federal court of appeals. INA 242(d)(1) provides that a court may review a final order of removal only if the noncitizen "has exhausted all administrative remedies available to the alien as of right."

This raises two questions. First, is the requirement "jurisdictional"? If so, courts must raise it on their own, and even if the government does not raise it, or even agrees, the court cannot hear a claim that was not exhausted. Second, if the noncitizen believes the BIA's decision itself contains a new error (for example, the BIA made its own findings of fact, which under the regulations the BIA generally may not do), must he or she first file a motion to reconsider with the BIA before taking that issue to federal court? Before this case, the Fifth Circuit and other courts treated the requirement as jurisdictional.

Facts

Leon Santos-Zacaria (who goes by Estrella) is a citizen of Guatemala who left Guatemala as a teenager. She testified that, as a transgender woman, she feared persecution if returned, and applied for withholding of removal and other protection. The immigration judge denied her application. The BIA agreed that she had suffered past persecution, but found that the presumption of "future persecution" had been rebutted, and upheld the denial.

She filed a petition for review in the U.S. Court of Appeals for the Fifth Circuit, arguing that the BIA had improperly engaged in its own fact-finding, which should be done only by the immigration judge. She had not first filed a motion to reconsider with the BIA. The government did not argue failure to exhaust, but the Fifth Circuit, 2-1, held on its own that she should first have asked the BIA to reconsider and that, having failed to do so, she had not exhausted her remedies; because it considered the requirement jurisdictional, the court held it had no power to hear that claim and dismissed it (22 F.4th 570 (5th Cir. 2022)).

Issues

• Is the INA 242(d)(1) exhaustion requirement a rule limiting the courts' jurisdiction?
• Must a noncitizen first seek discretionary relief from the BIA, such as reconsideration, to exhaust administrative remedies?

What the Court held

The majority first held:

“we hold that §1252(d)(1) is not jurisdictional.”

The Court explained that a provision should be read as limiting a court's jurisdiction only when Congress has clearly said so; the text of 1252(d)(1) differs from other provisions that expressly address jurisdiction and is a typical "claim-processing rule." It is therefore subject to waiver and forfeiture, and a court may not, on jurisdictional grounds, dismiss on its own when the government has not raised it.

The Court then held:

“We hold further that a noncitizen need not request discretionary forms of administrative review, like reconsideration of an unfavorable Board of Immigration Appeals determination, in order to satisfy §1252(d)(1)'s exhaustion requirement.”

The reasoning: the statute requires exhaustion only of remedies available "as of right," that is, remedies that are guaranteed and do not depend on the agency's permission. Whether the BIA grants a motion to reconsider is within its discretion; a right to "file" a motion is not a right to "obtain" reconsideration. The Court vacated the Fifth Circuit's ruling on this point and remanded; it did not decide whether she had adequately raised the issue before the BIA, nor did it address the government's other arguments.

Justice Alito (joined by Justice Thomas) concurred in the judgment on the ground that reconsideration is discretionary relief that did not need to be sought here, but saw no need to decide whether 1252(d)(1) is jurisdictional.

What it means for you

People with a case in immigration court

• An appeal to the BIA is still required. This case did not eliminate the exhaustion requirement: an appeal to the BIA is a remedy "available as of right," and going straight to federal court without appealing to the BIA usually will not work.
• Raise every issue in your BIA appeal. For issues never raised before the BIA, courts will still enforce the requirement when the government argues failure to exhaust in federal court; this case says only that the requirement is not jurisdictional, not that it can be ignored.

Asylum and withholding of removal applicants (I-589)

• If the BIA's decision itself contains a new error (for example, the BIA made findings of fact that the immigration judge did not make), you can raise it directly in your federal petition for review; you do not need to first ask the BIA to reconsider in order to "exhaust."
• Whether it is still worth asking the BIA to reconsider is a strategic question: reconsideration may let the BIA correct its own error, but it must not cause you to miss the federal court deadline.

People who want to apply for, or have been denied, cancellation of removal (EOIR-42B)

• Under Wilkinson v. Garland, the hardship determination in cancellation of removal can be reviewed by federal courts. Combined with this case, the usual path after a denial is: appeal to the BIA (explaining clearly how the hardship standard was misapplied) → after the BIA dismisses the appeal, file a petition for review in the federal court of appeals within 30 days.

Family members

• Immigration appeal deadlines are all short (a BIA appeal is currently generally due within 30 days after the immigration judge's decision, and in 2026 there was a new rule that would have shortened the deadline, so verify the current rules; a federal petition for review is due within 30 days after the final order of removal). When a family member receives a decision from the court or the BIA, contact the attorney of record immediately; do not wait until the person is released from detention.

Later developments

• Riley v. Bondi (No. 23-1270, June 26, 2025): In a majority opinion by Justice Alito, the Supreme Court held that (1) in withholding-only proceedings, a BIA decision denying deferral of removal under the Convention Against Torture (CAT) is not a "final order of removal," and the 30-day deadline for a petition for review runs from the final order of removal; and (2) the 30-day petition-for-review deadline in INA 242(b)(1) is not jurisdictional but a claim-processing rule, citing Santos-Zacaria in support of that reading. The Court vacated the Fourth Circuit's dismissal for lack of jurisdiction and remanded; because the government had not raised the deadline in that case, the deadline itself did not prevent the case from proceeding.
• Lower courts still enforce exhaustion: After this case, when the government timely argues that a noncitizen failed to exhaust, the federal courts of appeals still dismiss the affected claims on that basis. For example, an unpublished, nonprecedential Ninth Circuit decision dated March 6, 2024 (No. 21-1294) cited this case's exhaustion requirement and declined to consider an argument that the Notice to Appear was defective, because the petitioner had never raised it before the immigration judge or the BIA.

"Not jurisdictional" does not mean "optional": the exhaustion requirement and the 30-day deadline will still be enforced whenever the government raises them in time. As of October 2026, check the latest case law in the circuit where your case is pending.

Practical steps: what to do now

1. Make your BIA appeal complete: In the notice of appeal and the brief, list every error specifically, including legal errors, procedural errors and errors in fact-finding.
2. Track the 30 days: After the BIA dismisses an appeal, the deadline to file a petition for review in the federal court of appeals is 30 days. Even though the 30-day deadline is not jurisdictional, do not count on the government not raising it.
3. Reconsideration and review can run in parallel: If you decide to ask the BIA to reconsider (generally within 30 days after the BIA's decision is mailed) or to reopen (generally within 90 days after the final administrative decision, subject to regulatory exceptions), you should still file your federal petition for review on time; a motion before the BIA does not pause the federal review deadline, and if the motion is denied, a separate petition for review is usually required.
4. Keep a complete record: The immigration court transcript, evidence, BIA decisions and mailing envelopes are the foundation for any later review; if your record is incomplete, you can request it from EOIR under the Freedom of Information Act (see G-639).

Frequently asked questions

Opinion and sources

• U.S. Supreme Court: Santos-Zacaria v. Garland opinion (PDF)
• U.S. Supreme Court docket No. 21-1436
• Justia: Santos-Zacaria v. Garland, 598 U.S. 411 (2023)
• Cornell LII: Riley v. Bondi (No. 23-1270)
• Ninth Circuit decision (No. 21-1294, March 6, 2024)
• U.S. Code: 8 U.S.C. 1252 (INA 242, judicial review of orders of removal)

Related reading

• Wilkinson v. Garland: federal courts can review hardship determinations in cancellation of removal
• Form I-589 guide: asylum and withholding of removal
• Form EOIR-42B guide: cancellation of removal for non-permanent residents
• Form G-639 guide: Freedom of Information Act requests

This page is a general introduction to a court decision and is not legal advice. The law and case law change, and outcomes depend on the specific facts. To evaluate your situation, consult an attorney.