Can the government argue failure to exhaust an issue as an affirmative defense?

This Court, however, may not overlook a failure to exhaust when the government asserts non-exhaustion as an affirmative defense. While the requirement of issue exhaustion is not jurisdictional, it is mandatory. See Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 107 (2d Cir. 2007). Thus, if the government raises failure to exhaust an issue as a defense, "the court must decline to consider that issue, except in those extraordinary situations in which we have held that such issues can be considered even when exhaustion is a jurisdictional matter." Id. at 107 n.1

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(emphasis added) (citing Marrero Pichardo v. Ashcroft, 374 F.3d 46, 52-53 (2d Cir. 2004)). Here, petitioners do not argue that their petition presented an "extraordinary situation" that would have permitted the court to consider the unexhausted issue.