Exhaustion of Administrative Remedies in Immigration Cases: Finding Jurisdiction to Review Unexhausted Claims the Board of Immigration Appeals Considers Sua Sponte on the Merits

Abstract

In order for an appellate court to review an agency action, the action must be final and all administrative remedies must be exhausted. With regard to the exhaustion requirement, the author examines how the majority of circuits have held that federal circuit courts have jurisdiction to review immigration claims considered sua sponte by the Board of Immigration Appeals (“BIA”). However, the Eleventh Circuit seems to be the one outlier finding no jurisdiction, and the author believes the holding in Amaya-Artunduaga v. United States Attorney General to be incorrect and recommends it be overruled.

The goal of the Article is to show that an appellate court would not undermine the autonomy and effectiveness of the BIA by finding jurisdiction to review issues considered sua sponte by the BIA. The Article applies Professor Neil MacCormick’s “Three C’s Theory”: consequence, consistency, and coherence as outlined by Judge Ruggero J. Aldisert. The Article concludes that the Sixth Circuit’s Khalili v Holder decision meets “the courts’ institutional responsibility respecting consequences, consistency, and coherence.” Therefore, the author urges the Eleventh Circuit to follow Khalili and join the majority of circuits, holding that a claimant exhausts her administrative remedy where the BIA sua sponte thoroughly considers the claim on the merits.

Keywords: appellate review, jurisdiction, administrative remedies, and immigration