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Rh require exhausting discretionary review.

Board reconsideration and reopening are discretionary. By regulation, today and at the time of §1252(d)(1)’s enactment, “[t]he decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board.” 8 CFR §1003.2(a) (2022); 8 CFR §3.2 (1996); 61 Fed. Reg. 18904 (1996); see Dada v. Mukasey, 554 U. S. 1, 12–13 (2008) (tracing history of discretion to reopen back to 1916). That means a noncitizen can request reconsideration. But only if “the motion to reconsider is granted” does the Board proceed to make the “decision upon such reconsideration” as to whether to “affirm, modify, or reverse the original decision.” 8 CFR §1003.2(i). And, again, whether to grant the motion to reconsider, and thus proceed to such review, is up to the Board in its discretion. §1003.2(a); In re O-S-G-, 24 I. & N. Dec. 56, 57 (BIA 2006) (“[W]e have authority to deny a motion to reconsider as a matter of discretion”); cf. §1003.2(a) (“The Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief”).

Because Board reconsideration (like reopening) is a discretionary form of review, it is not available to the noncitizen “as of right.” Section 1252(d)(1) therefore does not require a noncitizen to pursue it.

The Government acknowledges that because §1252(d)(1) requires only exhaustion of remedies “available … as of right,” “a noncitizen need not exhaust ‘discretionary’ remedies.” Brief for Respondent 39. It also acknowledges that Board reconsideration is discretionary. Id., at 41, n. 11; Brief in Opposition 15–16. Still, the Government tries to squeeze reconsideration into the statutory requirement of remedies available “as of right.” We are unpersuaded.

According to the Government, §1252(d)(1) requires seeking reconsideration because a noncitizen has the “right” to