A recent decision from the U.S. Court of Appeals for the Sixth Circuit reinforces two core rules in immigration litigation. Individuals must exhaust issues before the Board of Immigration Appeals, and federal courts cannot review the BIA’s refusal to reopen cases sua sponte when the decision is discretionary. In Herrera v. Bondi, the Sixth Circuit held that it lacked jurisdiction to review the BIA’s denial of a motion to reopen because the petitioner failed to properly exhaust her arguments before the Board and because the BIA’s refusal to reopen proceedings sua sponte was an unreviewable discretionary act.
In this case, a woman from Guatemala entered the United States in 1994. She applied for asylum in 1997 but did not attend her immigration hearing. Because she did not appear, the court ordered her removed from the country. Many years later, she tried to reopen her case. She said she never received notice of the hearing.
Her first request was denied because she did not provide extra information the judge asked for. Almost ten years after that, she tried again. This second request was denied because immigration rules limit how many times a case can be reopened. She appealed to the Board of Immigration Appeals. The Board said her request was barred by the rules and that she failed to explain why the deadline and limits should be excused. The Board also refused to reopen the case on its own initiative. It pointed to her long delay, her years of unlawful presence, and the need for final decisions in immigration cases.
The court also held that it lacked jurisdiction to review the BIA’s refusal to reopen the case sua sponte. The regulation grants the BIA unfettered discretion to decide whether to exercise that authority. The court rejected arguments that recent Supreme Court precedent allowed review for legal error, finding that the BIA’s decision rested on discretionary factors rather than legal interpretations. Finally, the court rejected the petitioner’s due process claim. It held that the BIA adequately explained its reasoning and had no obligation to address every argument once it determined that the motion was procedurally barred.
This decision sends a clear message. Individuals seeking appellate review or to reopen a case timely must raise every relevant argument before the BIA and comply with procedural requirements. Courts will not excuse failure to exhaust issues, and they won’t second guess the BIA’s discretionary refusal to reopen cases sua sponte. Finality matters, and delay can be fatal to an immigration case.
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