Summary
The Sixth Circuit reviewed Dominga Sanik Herrera’s petition challenging the denial of her second motion to reopen removal proceedings and the Board of Immigration Appeals’ refusal to reopen sua sponte. The court denied the petition in part because Herrera failed to exhaust her challenge to the numerical bar on motions to reopen, and dismissed it in part for lack of jurisdiction over the Board’s discretionary sua sponte reopening decision. The court also rejected Herrera’s due-process argument, holding that the Board adequately explained its decision.
Topics
Practice areas
Questions Presented
- Whether Herrera exhausted her challenge to the agency's determination that her second motion to reopen was barred by the numerical limitation.
- Whether the Sixth Circuit had jurisdiction to review the Board's refusal to reopen Herrera's removal proceedings sua sponte.
- Whether the Board violated Herrera's Fifth Amendment right to due process by failing to provide a sufficiently reasoned decision addressing her lack-of-notice and due-diligence arguments.
Holdings
- Herrera failed to exhaust her challenge to the determination that her second motion to reopen was numerically barred because she did not specifically present that challenge to the Board; the court therefore could not reach her notice-based merits arguments.
- The court lacked jurisdiction to review the Board's discretionary refusal to reopen Herrera's removal proceedings sua sponte and dismissed that portion of the petition.
- The Board did not violate Herrera's Fifth Amendment due-process rights because it explained that the numerical bar disposed of the motion and therefore did not need to address Herrera's alternative merits arguments.
Key quotations
“Courts generally “may review a final order of removal only if” “the alien has exhausted all administrative remedies available to the alien as of right.”” (4)
“Under the Administrative Procedure Act, courts lack power to review agencies’ decisions when the “agency action is committed to agency discretion by law.”” (6)
“We deny the petition in part and dismiss the petition in part.” (9)
Factual background
Herrera, a native and citizen of Guatemala, entered the United States without inspection in January 1994 and later applied for asylum and withholding of removal. The Government served a Notice to Appear at the address listed on her application, but Herrera did not attend the June 19, 1997 hearing and was ordered removed in absentia. She later filed two motions to reopen based on lack of notice; after the first was denied when she failed to provide requested evidence, she filed the second nearly a decade later, in 2020, raising substantially the same notice-based arguments.
Procedural history
An immigration judge ordered Herrera removed in absentia after she failed to appear at her June 1997 removal hearing. The IJ denied her 2010 motion to reopen for lack of notice after she failed to provide requested additional evidence, and Herrera did not appeal that decision. In 2020, Herrera filed a second motion to reopen raising the same notice-based arguments; the IJ denied it as numerically barred, and the Board dismissed her appeal after finding that she had not challenged the number bar or argued equitable tolling. The Board also declined to reopen sua sponte, after which Herrera petitioned the Sixth Circuit for review.