Correctable Due-Process Claims Must Be Exhausted Before the BIA and Require a Showing of Prejudice in In Absentia Reopening

I. Introduction

In Chinedu Onyenobi v. Pamela Bondi (Sixth Cir. Mar. 26, 2026) (not recommended for publication), the Sixth Circuit reviewed a petition challenging the Board of Immigration Appeals’ (“BIA”) dismissal of an appeal from an immigration judge’s (“IJ”) denial of a motion to reopen and rescind an in absentia removal order. The petitioner, Chinedu Onyenobi, a Nigerian citizen and lawful permanent resident (“LPR”) since 2000, became removable after a felony forgery conviction and was later ordered removed after failing to appear for a scheduled hearing in Detroit.

The central issues were: (1) whether Onyenobi could raise a due process claim—based on DHS’s alleged confiscation of his identity documents and failure to provide temporary proof of LPR status—without exhausting that claim before the agency; (2) whether he showed the required prejudice from the alleged due process defect; and (3) whether notice defects in the Notice to Appear (“NTA”) supported rescission, despite later hearing notices.

II. Summary of the Opinion

The Sixth Circuit denied the petition for review. It held that:

  • Onyenobi’s due process theory failed because he did not show prejudice—i.e., he did not explain how the alleged document confiscation changed the outcome of either the in absentia proceedings or his reopening request.
  • To the extent the due process issue was relevant to reopening (e.g., as a “correctable” procedural defect or as an “exceptional circumstance” theory), it was a claim the BIA could address; therefore, it had to be exhausted administratively. Because it was not properly raised, the court could not review it.
  • The petitioner’s “single statutorily compliant document” notice argument (invoking Niz-Chavez) was foreclosed by Campos-Chaves v. Garland, which permits a deficient NTA to be cured by subsequent notices of hearing.

III. Analysis

A. Precedents Cited

1. Scope of review and jurisdictional limits for criminal removability

  • Turcios-Flores v. Garland, 67 F.4th 347 (6th Cir. 2023): The court reiterated that it reviews the BIA’s decision as the final agency determination.
  • Gutierrez v. Sessions, 887 F.3d 770 (6th Cir. 2018): Because Onyenobi was removable for a crime involving moral turpitude, judicial review was limited to “constitutional claims or questions of law,” reviewed de novo.

2. Exhaustion doctrine in immigration appeals (including due process claims)

  • Sterkaj v. Gonzales, 439 F.3d 273 (6th Cir. 2006), quoting Ramani v. Ashcroft, 378 F.3d 554 (6th Cir. 2004): Only issues properly presented to the BIA and considered on the merits are reviewable; exhaustion under 8 U.S.C. § 1252(d)(1) is generally jurisdictional in effect. Sterkaj also notes the nuance that some constitutional challenges may not require exhaustion if the BIA lacks authority to address them.
  • Singh v. Rosen, 984 F.3d 1142 (6th Cir. 2021): The key frame adopted by the panel—most due process claims are “procedural” and therefore correctable by the BIA, so they must be exhausted. The opinion relies on Singh to classify Onyenobi’s claim as the correctable type.
  • Other-circuit support (cited in a footnote) for the “constitutional claim” exhaustion distinction: Roy v. Ashcroft, 389 F.3d 132 (5th Cir. 2004); Rashtabadi v. INS, 23 F.3d 1562 (9th Cir. 1994); Gallego-Arroyave v. Holder, 505 F. App'x 749 (10th Cir. 2012) (quoting Vicente-Elias v. Mukasey, 532 F.3d 1086 (10th Cir. 2008)). The Sixth Circuit used these citations to contextualize—without expanding—the principle that exhaustion is required when the agency can remedy the alleged procedural unfairness.

3. Due process standards and the prejudice requirement

  • Bi Qing Zheng v. Lynch, 819 F.3d 287 (6th Cir. 2016), quoting Huicochea-Gomez v. INS, 237 F.3d 696 (6th Cir. 2001): Noncitizens are entitled to a full and fair hearing in removal proceedings.
  • Kwong Hai Chew v. Colding, 344 U.S. 590 (1953): LPRs are entitled to notice and a hearing before deportation—used here to confirm that due process principles apply.
  • Vasha v. Gonzales, 410 F.3d 863 (6th Cir. 2005), and Graham v. Mukasey, 519 F.3d 546 (6th Cir. 2008): The court applied the two-part due process inquiry (defect + prejudice), emphasizing that prejudice requires a “substantially different outcome.”
  • Amadou v. INS, 226 F.3d 724 (6th Cir. 2000), and Alhousseini v. Sessions, 751 F. App'x 674 (6th Cir. 2018): Cited to reinforce that due process protections apply in immigration adjudications beyond classic removal trials.

4. Right-to-counsel framing for “correctable” due process claims

  • Cuevas-Nuno v. Barr, 969 F.3d 331 (6th Cir. 2020): The panel cited this case to show that arguments about interference with counsel are the kind of procedural claims the BIA can address—supporting the exhaustion holding.

5. Notice in removal proceedings: NTA defects and curative hearing notices

  • Niz-Chavez v. Garland, 593 U.S. 155 (2021): Onyenobi invoked its “single statutorily compliant document” language.
  • Campos-Chaves v. Garland, 602 U.S. 447 (2024): Dispositive here; the Supreme Court held that a deficient NTA can be cured by subsequent notices of hearing. The Sixth Circuit applied Campos-Chaves to reject Onyenobi’s notice-based rescission theory.

B. Legal Reasoning

1. Two independent barriers to the due process theory: lack of prejudice and lack of exhaustion

The court assumed (without deciding) that DHS’s alleged conduct—confiscating LPR proof and other identification and not providing temporary evidence contemplated by 8 C.F.R. § 264.5(g)—could be framed as a due process problem. But the court required more than a general claim of hardship: Onyenobi had to tie that conduct to a different outcome in his removal/reopening posture.

The opinion emphasizes that Onyenobi: (i) conceded removability under 8 U.S.C. § 1182(a)(2)(A)(i)(I) (crime involving moral turpitude); (ii) conceded proper notice (once later case law foreclosed the NTA argument); and (iii) did not develop an “exceptional circumstances” theory under 8 U.S.C. § 1229a(b)(5)(C)(i). Without identifying a plausible form of relief, a viable defense, or a concrete argument he would have made had he appeared, he could not establish prejudice.

Separately, the court held the claim was the “correctable” type of due process challenge: it attacked the procedure and fairness of how the case unfolded (e.g., ability to obtain counsel, ability to attend), not the constitutionality of an immigration statute or regulation. Under Singh v. Rosen and Sterkaj v. Gonzales, such claims must be presented through the agency’s process. The panel further noted a procedural defect in Onyenobi’s presentation: even before the BIA, the argument was not properly preserved because it was not raised to the IJ first, and “properly raising” a claim includes compliance with the agency’s procedural rules.

2. In absentia reopening framework as the doctrinal anchor

The decision implicitly treats in absentia rescission as a statutory gatekeeping regime: to reopen and rescind, the movant must show either lack of notice (8 U.S.C. § 1229a(b)(5)(C)(ii)) or exceptional circumstances (8 U.S.C. § 1229a(b)(5)(C)(i)). Because Onyenobi ultimately conceded notice and did not meaningfully substantiate “exceptional circumstances,” his motion could not succeed regardless of the broader equities he alluded to.

3. Notice law after Campos-Chaves

The court treated Campos-Chaves v. Garland as fully dispositive of the NTA defect theory: even if the original NTA lacked date/time, later hearing notices can cure the deficiency for notice-based challenges. Thus, where a noncitizen actually receives later written notice of the hearing’s time and place, “single document” arguments generally will not support rescission of an in absentia order.

C. Impact

  • Reinforces a practical exhaustion rule for due process claims in the Sixth Circuit: Even when labeled “constitutional,” a claim must be exhausted if the BIA could have provided a remedy (e.g., reopening based on interference with counsel or exceptional circumstances). This channels litigants to develop procedural-due-process records before the IJ and BIA, rather than for the first time on petition for review.
  • Elevates prejudice from a formality to a decisive merits requirement: Applicants alleging procedural unfairness must articulate what relief, defense, or argument would likely have changed the outcome—especially in in absentia contexts where the statute tightly limits rescission grounds.
  • Post-Campos-Chaves stability on notice challenges: The opinion illustrates that NTA date/time omissions are unlikely to support rescission when later hearing notices were personally served or otherwise received.
  • Procedural preservation matters inside the agency: The court highlighted that presenting an issue to the BIA may be insufficient if the issue was not raised first to the IJ in compliance with agency procedures, narrowing pathways for late-arising theories on petition for review.

IV. Complex Concepts Simplified

  • In absentia removal order: A removal order entered when the noncitizen does not show up to the hearing, after the government proves proper notice and removability.
  • Motion to reopen / rescind: A request to restart proceedings and undo an in absentia order. For in absentia rescission, the statute generally requires either (a) no proper notice or (b) “exceptional circumstances” for missing the hearing.
  • Exhaustion of administrative remedies (8 U.S.C. § 1252(d)(1)): You ordinarily must raise issues before the immigration agency (IJ/BIA) before a federal court will hear them. Even “due process” claims must be exhausted if the agency could fix the problem.
  • Correctable vs. non-correctable constitutional claims: If the claim challenges how the IJ handled the case (procedure), the BIA can often correct it—so exhaustion is required. If the claim attacks the constitutionality of a statute/regulation itself, the BIA generally cannot rule on it.
  • Prejudice: A due process violation is not enough; the petitioner must show the defect likely mattered to the outcome (a “substantially different outcome” otherwise).
  • NTA vs. Notice of Hearing: An NTA starts the case; a later Notice of Hearing can provide the hearing’s specific time and place. After Campos-Chaves, later notices can cure an NTA’s missing date/time.

V. Conclusion

Onyenobi underscores two decisive lessons for in absentia reopening in the Sixth Circuit: (1) allegations of procedural due process unfairness must be exhausted when the BIA could remedy them, and must be raised in compliance with agency procedures; and (2) even where a defect is assumed, the petitioner must prove prejudice by identifying a concrete, outcome-altering argument or form of relief lost because of the defect. On notice, the decision reflects the post-Campos-Chaves v. Garland landscape: later hearing notices can cure an NTA’s missing date/time for purposes of resisting an in absentia order.