The Tenth Circuit has determined that where a petitioner violated the exhaustion claims processing rule by failing to raise an argument before the agency, it has the authority to consider the failure to exhaust violation, even if the Government does object to the failure to exhaust.
The full text of Miguel-Pena v. Garland can be found here:
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111008946.pdf