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Leon Santos-Zacaria, aka Leon Santos-Sacarias v. Merrick B. Garland, Attorney General
Paid petition · United States Court of Appeals for the Fifth Circuit, No. 19-60355 · judgment January 10, 2022
Before the decision, about 2.7× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a Fifth Circuit decision below, and a circuit split argued in the petition.
Questions presented
After the Board of Immigration Appeals (BIA) denied her application for withholding of removal, petitioner Leon Santos-Zacaria filed a petition for review. Although the government agreed that the court had jurisdiction, the Fifth Circuit sua sponte dismissed in part for lack of jurisdiction pursuant to 8 U.S.C. § 1252(d)(1), which requires a noncitizen to exhaust "all administrative remedies available to the alien as of right." This holding implicates two circuit splits, each of which independently warrants review.
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Eight circuits hold that Section 1252(d)(1)'s exhaustion requirement is jurisdictional. Two circuits disagree, holding that exhaustion may be waived. Multiple courts and judges have called for further review of this issue. The first question presented is: Whether Section 1252(d)(1)'s exhaustion requirement is jurisdictional, or merely a mandatory claims processing rule that may be waived or forfeited.
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Further, petitioner's merits argument is that the BIA engaged in impermissible fact finding. In these circumstances, the Fifth Circuit, along with three other circuits, requires a noncitizen to file a motion to reopen or reconsider with the agency in order to satisfy Section 1252(d)(1)'s requirement that a noncitizen exhaust "remedies available * * * as of right." Two other circuits, recognizing that "[t]he decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board" (8 C.F.R. § 1003.2) disagree. The second question presented is: Whether, to satisfy Section 1252(d)(1)'s exhaustion requirement, a noncitizen who challenges a new error introduced by the BIA must first ask the agency to exercise its discretion to reopen or reconsider.
Counsel of record
For petitioner
Paul Whitfield Hughes
McDermott Will & Emery
For respondent
Elizabeth B. Prelogar
Solicitor General
Case
Conference history
Distributed for 1 conference
Amicus briefs
3 merits
(3 supporting pet./neither)
Argument & decision
Argued January 17, 2023 — Paul W. Hughes · Yaira Dubin. Audio and transcript
Decided May 11, 2023. Opinion by Jackson.
Proceedings
- Jun 12 2023Judgment issued.
- May 11 2023Adjudged to be VACATED IN PART, and case REMANDED. Jackson, J., delivered the opinion of the Court, in which Roberts, C. J., and Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Alito, J., filed an opinion concurring in the judgment, in which Thomas, J., joined.
- Jan 17 2023Argued. For petitioner: Paul W. Hughes, Washington, D. C. For respondent: Yaira Dubin, Assistant to the Solicitor General, Department of Justice, Washington, D. C.
- Jan 05 2023Reply of petitioner Leon Santos-Zacaria filed. (Distributed)
- Dec 19 2022Brief of respondent Merrick B. Garland, Attorney General filed. (Distributed)
- Dec 07 2022CIRCULATED
- Dec 07 2022Record received from the U.S.C.A. 5th Circuit. The record was transmitted electronically and contains sealed materials.
- Nov 23 2022Brief amici curiae of Constitutional Accountability Center and National Immigration Litigation Alliance filed.
- Nov 23 2022Brief amici curiae of Former Immigration Judges, et al. in support of neither party filed.
- Nov 23 2022Brief amici curiae of Legal Services Providers filed.
- Nov 17 2022Brief of petitioner Leon Santos-Zacaria filed.
- Nov 17 2022Joint appendix filed (statement of costs filed).
- Nov 16 2022Record requested from the U.S.C.A. 5th Circuit.
- Nov 10 2022SET FOR ARGUMENT on Tuesday, January 17, 2023.
- Oct 03 2022Petition GRANTED.
- Oct 03 2022As Rule 34.6 provides, “If the Court schedules briefing and oral argument in a case that was governed by Federal Rule of Civil Procedure 5.2(c) or Federal Rule of Criminal Procedure 49.1(c), the parties shall submit electronic versions of all prior and subsequent filings with this Court in the case, subject to [applicable] redaction rules.” Subsequent party and amicus filings in the case should now be submitted through the Court’s electronic filing system, with any necessary redactions.
- Aug 31 2022DISTRIBUTED for Conference of 9/28/2022.
- Aug 30 2022Reply of petitioner Leon Santos-Zacaria filed. (Distributed)
- Aug 12 2022Brief of respondent Merrick B. Garland, Attorney General in opposition filed.
- Jul 12 2022Motion to extend the time to file a response is granted and the time is further extended to and including August 12, 2022.
- Jul 11 2022Motion to extend the time to file a response from July 13, 2022 to August 12, 2022, submitted to The Clerk.
- Jun 09 2022Motion to extend the time to file a response is granted and the time is extended to and including July 13, 2022.
- Jun 07 2022Motion to extend the time to file a response from June 13, 2022 to July 13, 2022, submitted to The Clerk.
- May 10 2022Petition for a writ of certiorari filed. (Response due June 13, 2022)
- Apr 03 2022Application (21A565) granted by Justice Alito extending the time to file until May 10, 2022.
- Mar 30 2022Application (21A565) to extend the time to file a petition for a writ of certiorari from April 20, 2022 to May 20, 2022, submitted to Justice Alito.
- Mar 30 2022Pursuant to Rule 34.6 and Paragraph 9 of the Guidelines for the Submission of Documents to the Supreme Court's Electronic Filing System, filings in this case should be submitted in paper form only, and should not be submitted through the Court's electronic filing system.