Immigration · Primary-source case analysis

Santos-Zacaria: INA Exhaustion Is Nonjurisdictional and Did Not Require Board Reconsideration

By Aneeta Mishra and Timothy Chan

Published April 22, 2026

Santos-Zacaria distinguishes mandatory exhaustion from subject-matter jurisdiction and defines what agency remedies must be used before a petition for review.

The Board allegedly made new factual findings

After losing before the immigration judge and Board, Estrella Santos-Zacaria argued in the Fifth Circuit that the Board itself had engaged in impermissible factfinding. She had not first moved the Board to reconsider.

Exhaustion is not jurisdictional

Congress did not clearly state that section 1252(d)(1) limits the court’s adjudicatory power. The requirement is mandatory when properly invoked but may be waived or forfeited and need not be raised sua sponte as jurisdictional.

Reconsideration was not available as of right

A motion to reconsider asks the Board to exercise discretion and is not an administrative remedy available as of right. Exhaustion therefore did not require that extra procedural step for an error first committed by the Board.

Disposition

The Court vacated and remanded. The ruling did not eliminate issue-exhaustion duties for arguments that could have been presented during the ordinary agency appeal.

Key takeaways

• Distinguish jurisdictional limits from claim-processing rules.
• Raise issues at the first agency stage where they can be addressed.
• A discretionary reconsideration motion is not always required.
• Government waiver and forfeiture can matter for nonjurisdictional exhaustion.