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2 Santos-Zacaria eventually sought refuge in the United States. Her first stay in the country was brief, and she was removed by immigration authorities in 2008. In 2018, she returned and was apprehended again by immigration authorities.

At that point, Santos-Zacaria sought protection from removal, including withholding of removal based on the likelihood she would be persecuted in Guatemala. See 8 U. S. C. §1231(b)(3)(A). An Immigration Judge within the Department of Justice entered an order reinstating Santos-Zacaria’s prior removal order and denying the protection she sought.

On appeal within the Department, the Board of Immigration Appeals upheld the Immigration Judge’s denial of withholding of removal. The Board agreed with Santos-Zacaria in part, determining that she had suffered past persecution in Guatemala and was therefore entitled to a presumption of future persecution. But the Board found that this presumption was rebutted (which was an issue that the Immigration Judge had not reached).

Santos-Zacaria then filed a petition for review in the U. S. Court of Appeals for the Fifth Circuit under 8 U. S. C. §1252. Her petition contended, among other things, that when the Board concluded that the presumption of future persecution was rebutted, it had impermissibly engaged in factfinding that only the Immigration Judge could perform.

In a 2-to-1 decision, the Court of Appeals dismissed Santos-Zacaria’s impermissible-factfinding challenge for lack of jurisdiction, on the ground that she had failed to exhaust administrative remedies under §1252(d)(1). 22 F. 4th 570, 573 (2022). The Government had not raised exhaustion, but the Court of Appeals did so sua sponte because it characterized §1252(d)(1) as establishing a jurisdictional requirement. The court further held that, because Santos-Zacaria had not raised the impermissible-factfinding challenge in a motion for reconsideration before the Board prior