A federal appeals court on Monday rejected a Guatemalan woman’s attempt to overturn a deportation order issued nearly three decades ago, ruling that procedural errors and strict jurisdictional limits prevent the judiciary from intervening.
The decision from the U.S. Court of Appeals for the Sixth Circuit leaves in place a removal order against Dominga Sanik Herrera dating back to June 1997.
Herrera, who entered the United States unlawfully in 1994, was ordered removed in absentia after she failed to appear for an immigration hearing. For years, Herrera has argued she never received proper notice of that hearing, claiming the government sent the summons to the address of a Tennessee man who had helped her with paperwork, rather than her own residence.
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However, the appellate panel found that Herrera’s legal avenues were closed due to a combination of missed opportunities and strict limits on how often a case can be reopened.
Judge Hermandorfer, writing for the panel, noted that Herrera had already attempted to reopen the proceedings in 2010. That effort failed when she did not respond to an immigration judge’s request for evidence. When she filed a second motion nearly a decade later in 2020, immigration officials denied it based on the “number bar”—a federal regulation that generally restricts individuals to filing only one motion to reopen a case.
The Sixth Circuit ruled that it could not help Herrera because her legal team failed to properly challenge that “number bar” limitation when appealing to the Board of Immigration Appeals (BIA). By not raising the specific issue of equitable tolling regarding the numerical limit before the Board, the court said she had failed to exhaust her administrative remedies.
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“The Board determined that Herrera ‘waived’ any challenge to the IJ’s determination that her second motion to reopen was number-barred,” the opinion stated. “We agree.”
Herrera also asked the federal court to review the Board’s refusal to reopen her case sua sponte—a discretionary power that allows the agency to reopen cases on its own initiative. The Board had declined to do so, citing Herrera’s lack of due diligence over the last 27 years and the “importance of finality in immigration proceedings.”
The Sixth Circuit dismissed that portion of the appeal, reaffirming that federal courts do not have jurisdiction to review the Board’s purely discretionary decisions.
“The Board has discretion to deny a motion to reopen even if the moving party has made out a prima facie case for relief,” Hermandorfer wrote, describing the agency’s authority in this area as “unfettered discretion.”
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Because there is “no law to apply” to such discretionary choices, the court concluded it had no power to second-guess the Board’s refusal.
The ruling affirms the dismissal of Herrera’s petition against Attorney General Pamela Bondi.
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