Santos-Zacaria v. Garland, Att'y Gen. (21-1436)
argument 21-1436Santos-Zacaria v. Garland, Att'y Gen.
Supreme Court of the United States
1h 3m
8 speakers
8 chapters
transcribed 8 days ago
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What is the Court’s argument that the exhaustion requirement in 1252‑D1 is not jurisdictional?
Clear argument first this morning, case 21-1436, Santos-Zaccaria v. Garland. Mr. Hughes?
Thank you, Mr. Chief Justice, and may it please the Court. The Court of Appeals erred in dismissing petitioners' improper fact-finding claim in three separate ways. First, unlike several of its neighboring provisions, the exhaustion requirement in 1252-D1 does not contain the requisite clear statement to render it jurisdictional. Second, and regardless, any issue preservation requirement is not statutory and thus not jurisdictional. And that is especially so since the government's rule is not normal issue preservation where issues must be raised before a decision, but rather a super strong rule where a litigant must, in some poorly defined category of cases, request post-decision reconsideration. Third, because a motion to reconsider is not a remedy available as of right, a non-citizen does not need to file such a motion to properly exhaust.
I'd like to start with this last point, which has tremendous practical implications. And if we are right the petitioner properly exhausted, she prevails regardless of D1's jurisdictional status. The government correctly concedes that a non-citizen need not normally file a motion to reconsider. This should foreclose the government's position because the government has no textual basis to argue that motions to reconsider sometimes qualify as remedies available as of right and sometimes not. As we have described, a motion to reconsider is plainly a discretionary remedy.
Well, how do you
analyze
it? You have an absolute right to file a motion for reconsideration, right? It may be discretionary whether you're going to get reconsideration or not. So how do you parse that? Where do you look to see if something is a matter of right? Is it being the right to seek it or the right to have the Court look at a particular thing? How do you?
I think the term as of right, Your Honor, is one that's been well defined in centuries of judicial practice as one where the decision maker lacks discretion. And I'd point the Court to this Court's Rule 10, just as one place to begin, where the Court says, Review on a writ of certiorari is not a matter of right, but of judicial discretion. And in the briefs, we cite several other examples, like appeals in the federal courts, Rules 3 and 4. Well, but
just to stop you there, review on certiorari is not a matter of right. You may not get review. On the other hand, you do have an absolute right to file a petition for certiorari.
I'm
just saying, in one of those situations, where do you look to see if there's — where's the right? Is it in the actual — decision of the Court, or is it in the right to petition the Court to afford such consideration?
So I think the distinction is whether or not there is that layer of discretion, because that's what as of right means as a technical term. And I think it has to mean that in this context, or else Congress's inclusion of the phrase as of right doesn't do any effective work in the context of this statute. Look to the examples the government points to as things that it calls discretionary. That's cancellation of removal, adjustment of status, those sorts of things. The government says those are discretionary. But note, if a non-citizen files a request for one of those things, they have a right to at least have it considered in the same way one would have a right to file the reconsideration motion. But nobody, including the government in those other contexts, thinks that that renders the thing that's being requested legitimate.
the kind of remedy that would be fairly described in law as one as of right. So again, if it's just the right to file, then that just effectively negates this limitation that Congress expressly put in to D-1.
Why is... Why is, what is the remedy here? I guess I would have thought of an appellate remedy as, you know, vacatur or reversal, that kind of thing. And I think, you know, I can see where you're going with as of right, but when we think about the remedy, and this is a problem I think on the government side too, why would the remedy either be the right to file a motion or
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Chapters
8 chapters
1
What is the Court’s argument that the exhaustion requirement in 1252‑D1 is not jurisdictional?
0:00–6:36
2
How does the term “as of right” affect the availability of a motion to reconsider?
6:36–12:11
3
What distinction does the Court draw between a discretionary remedy and a remedy “as of right”?
12:11–19:10
4
Why does the government argue that the exhaustion provision should be read as a jurisdictional limitation?
19:10–25:54
5
How do the parties interpret the statutory language on court authority versus party obligations?
25:54–31:50
6
What is the significance of the “magic words” discussion for exhaustion requirements?
31:50–38:11
7
How might the Court resolve the waiver‑forfeiture and issue‑exhaustion questions?
38:11–44:27
8
What are the potential implications of declaring the exhaustion provision jurisdictional or not?
44:27–1:03:31