The Supreme Court has clarified a key procedural rule for noncitizens challenging deportation: noncitizens subject to deportation do not have to ask the Board of Immigration Appeals to reconsider its allegedly erroneous decisions before seeking judicial review in the federal courts of appeals. This decision eliminates a trap that has caught many practitioners and clients unaware.
What changed
In Santos-Zacaria v. Garland, the Supreme Court ruled that noncitizens subject to deportation do not have to ask the Board of Immigration Appeals to reconsider its allegedly erroneous decisions before seeking judicial review in the federal courts of appeals. The case involved Estrella Santos-Zacaria, a native of Guatemala, who had entered the United States unlawfully and was deported to Guatemala in 2008 and 2012. In 2018, she once again entered the country unlawfully and was caught. She sought to avoid deportation by arguing (among other things) that she was likely to be persecuted in Guatemala because she is a transgender woman.
An immigration judge rejected Santos-Zacaria’s claims and reinstated her original deportation order. The Board of Immigration Appeals upheld that decision. It ruled that Santos-Zacaria had successfully established that she suffered past persecution in Guatemala and was accordingly entitled to a presumption of future persecution. However, the BIA concluded, she was nonetheless not entitled to relief because the government had successfully rebutted this presumption.
Santos-Zacaria appealed to the U.S. Court of Appeals for the 5th Circuit, where she argued that the BIA based its future persecution determination on facts it was not permitted to find. A divided three-judge panel rejected these arguments and dismissed her case, concluding that she had failed to pursue all available administrative remedies as required by 8 U.S.C. § 1252(d)(1), which allows courts to review final deportation orders only when a noncitizen has “exhausted all available administrative remedies available to” her “as of right.” The Supreme Court reversed this dismissal.
Why it matters
Before this ruling, the 5th Circuit had created a procedural bottleneck: even if the BIA had already issued a final decision, a noncitizen had to ask the BIA to reconsider before the federal court would hear an appeal. That meant a second trip through the administrative process, extra delay, and additional filing fees—all before a court would even look at the case.
This Supreme Court decision eliminates that unnecessary step. Once the BIA issues a final decision, you can now proceed directly to the federal court of appeals without requesting BIA reconsideration. The ruling applies nationwide and binds all immigration judges, the BIA, and circuit courts. It reduces litigation costs and moves meritorious appeals forward faster, which is especially important in cases where persecution, trafficking, or other serious harms are at stake.
Way forward
- If you are representing a client with a final BIA decision: File directly in the appropriate federal court of appeals under 8 U.S.C. § 1252. You no longer need to request BIA reconsideration first.
- If you have pending cases where you previously exhausted a BIA reconsideration request: Consider whether the decision creates grounds to reopen or remand your case, and consult the BIA’s rules on reopening.
- When advising new clients on appellate strategy: Confirm the BIA’s final decision is in the record, then proceed to circuit court promptly. This saves time and expense compared to pre-Santos-Zacaria practice.
- Cross-reference your local circuit’s appellate rules: Each federal court of appeals has its own filing deadlines and procedures. Consult your circuit’s rules and any practice notes on immigration appeals.
Disclaimer
This article is published by Fola, a software company and not a law firm. This is not legal advice. Immigration law is complex and changes frequently; the Supreme Court decision described here may be subject to further interpretation or modification. You must consult with a licensed immigration attorney licensed to practice in your jurisdiction before relying on any information in this article. Verify all citations against the primary source document linked above.