Judicial review is fundamental to a free government. In the Eleventh Circuit, however, courts may not review sua sponte orders issued by immigration courts. Sua sponte orders often invoke removal grounds neither raised by the government nor addressed by immigrants, short‑circuiting the administrative process. Such departures from ordinary procedure merit skepticism, not a special exemption from review. The Eleventh Circuit’s sua sponte “exhaustion” rule turns due‑process principles on their head.

The Cato Institute has filed an amicus brief asking the Supreme Court to review the Eleventh Circuit’s sua sponte bar. Our brief explains how the Eleventh Circuit’s rule hampers traditional judicial oversight—especially within the notoriously error‑prone immigration system. Unless addressed, unreviewable sua sponte decisions could proliferate across the federal government. 

First, the principle of independent judicial review over administrative action predates the United States and should govern this case. Coke and Blackstone both recognized that under English law, recourse to the courts was available to cure misgovernment. Almost 200 years ago, Chief Justice Marshall adapted that principle to the United States, holding that an appeal to the laws of the country must always be presumed when the government exercises power over an individual. Immunizing sua sponte rulings from judicial review contravenes these venerable principles.

The presumption of reviewability is especially critical in immigration proceedings. Most immigrants in withholding-only proceedings lack counsel. Without counsel, detained immigrants cannot gather evidence of persecution and are often unaware of arcane immigration‑court rules.

These differences matter; immigrants with a lawyer are 10 times more likely to obtain relief than those without. A shortage of lawyers also increases the number of sua sponte immigration decisions—many of which are erroneous. In 2021 alone, federal courts remanded over 1,300 BIA decisions for reconsideration. Barring review of sua sponte orders only heightens the risk that meritorious claims will be wrongly rejected.

Finally, nothing confines the Eleventh Circuit’s judicial abdication to the immigration context. Courts endorsing the rule cite only generalized “purposes of exhaustion,” offering no immigration‑specific rationale. Dozens of statutes, including Medicare and the Internal Revenue Code, contain exhaustion provisions similar to those in immigration laws. Like the Immigration and Nationality Act, these statutes vest agencies with lifechanging power over the people before them. Logically, the sua sponte rule would bar judicial review of any agency decision that relied on a ground not invoked by a party. District courts have already begun to dismiss benefits appeals on precisely this rationale. The Supreme Court should promptly grant certiorari and reverse the Eleventh Circuit’s precedent before it shields all manner of agency decision-making from judicial oversight.