Herrera v. Bondi: APA-Based Bar on Reviewing BIA’s Sua Sponte Reopening and Strict Enforcement of Exhaustion for Numerical Bars

I. Introduction

The Sixth Circuit’s decision in Dominga Sanik Herrera v. Bondi, No. 25‑3207 (6th Cir. Dec. 15, 2025), addresses two recurrent and often misunderstood features of immigration litigation:

How strictly courts enforce the requirement that a noncitizen exhaust issues before the Board of Immigration Appeals (BIA), especially when challenging the numerical bar on motions to reopen; and
Whether, after landmark decisions like Loper Bright and the Sixth Circuit’s own Sarkisov, federal courts may review the BIA’s refusal to reopen removal proceedings sua sponte.

The case arises out of a long‑pending removal order entered in absentia against Dominga Sanik Herrera, a Guatemalan national who entered the United States without inspection in 1994 and failed to appear for her 1997 immigration hearing. She later filed two motions to reopen, both premised essentially on lack of notice of that hearing.

The Immigration Judge (IJ) denied her second motion to reopen as numerically barred, and the BIA affirmed on that ground while declining to reopen proceedings sua sponte. On petition for review, the Sixth Circuit:

Denied review of the numerical‑bar ruling because Herrera failed to exhaust any challenge to that ruling before the BIA; and
Dismissed for lack of jurisdiction her challenge to the BIA’s refusal to reopen sua sponte, reaffirming that such refusals remain unreviewable under the Administrative Procedure Act (APA) even after Loper Bright and Sarkisov.

The opinion also rebuffs a due‑process challenge to the BIA’s explanation, holding that the Board adequately justified its decision by resting on the dispositive numerical bar.

Key Holdings in Brief

Exhaustion of numerical‑bar issues is mandatory. A noncitizen must specifically challenge an IJ’s numerical‑bar ruling—and any equitable tolling of that numerical bar—before the BIA. Discussing equitable tolling only in relation to a different deadline (e.g., a 180‑day filing bar) does not exhaust a challenge to the numerical limitation.
Denials of sua sponte reopening remain unreviewable. The court reiterates that BIA decisions declining to exercise sua sponte reopening authority are “committed to agency discretion by law” under 5 U.S.C. § 701(a)(2), and thus not subject to judicial review—this rule is not undermined by:
- Loper Bright Enterprises v. Raimondo (ending Chevron deference); or
- Sarkisov v. Bondi (recognizing review of certain “extraordinary circumstances” determinations under a statutory provision).
BIA’s brief explanation was constitutionally sufficient. Where the numerical bar is dispositive, the BIA may decline to address alternative arguments (e.g., lack of notice) without violating due process, so long as its reasoning shows it “heard and thought and not merely reacted.”

II. Factual and Procedural Background

A. Entry, Asylum Application, and 1997 In‑Absentia Order

Herrera, a Guatemalan citizen, entered the United States without inspection in January 1994. In March 1997 she filed an application for asylum and withholding of removal. Critically:

She used the mailing address of a Tennessee man who assisted her with the application and whom she believed to be “a knowledgeable immigration attorney,” though the record does not confirm that status.
The application stated that she resided at that address and listed no alternative address or contact method; she made no correction at her asylum interview.

In May 1997, the government served a Notice to Appear (NTA) at the address on her asylum application, charging her as removable under 8 U.S.C. § 1182(a)(6)(A)(i) (present in the United States without being admitted or paroled). A removal hearing was scheduled for August 1997 but advanced to June 19, 1997. Herrera did not appear, and the IJ ordered her removed in absentia.

B. First Motion to Reopen (2010)

In September 2010—more than a decade after the removal order—Herrera filed her first motion to reopen to rescind the in‑absentia order, asserting that she never received the NTA and lacked notice of the June 1997 hearing.

In December 2010, the IJ issued an interim order asking for additional evidence about her lack‑of‑notice claim within 60 days. Herrera never responded, and the IJ denied the motion to reopen. She did not appeal to the BIA.

C. Second Motion to Reopen (2020) and IJ’s Numerical‑Bar Ruling

In June 2020, nearly another decade later, Herrera filed a second motion to reopen, again asserting lack of notice in 1997. The IJ recognized:

Under 8 U.S.C. § 1229a(c)(7)(A) and 8 C.F.R. § 1003.23(b)(1), a noncitizen generally may file only one motion to reopen after an order of removal.
Under 8 C.F.R. § 1003.23(b)(4)(ii), an alien may file only one motion to reopen and rescind an in‑absentia removal order based on lack of notice.

Because Herrera was on her second such motion and did not qualify for the changed‑country‑conditions exception to pursue a new asylum or withholding claim, the IJ held that her motion was numerically barred and denied it.

D. BIA Appeal and Sua Sponte Request

Herrera appealed to the BIA. In her brief she:

Argued she had never received adequate notice of the 1997 hearing;
Claimed “extraordinary circumstances” excused her failure to appear;
Asserted that the in‑absentia order was legally erroneous; and
Asked the BIA to reopen her proceedings sua sponte.

However, she did not argue that the IJ erred in applying the numerical bar or that the numerical bar should be equitably tolled. Her references to equitable tolling were limited to the 180‑day filing deadline for certain motions to reopen, not to the numerical limitation itself.

The BIA dismissed the appeal, holding:

Herrera did “not meaningfully challenge” the IJ’s determination that her motion was numerically barred;
She made no argument for equitable tolling of the numerical limitation; therefore, those issues were waived;
Because the numerical bar was dispositive, the Board did not address her notice and merits arguments; and
The Board declined to exercise its sua sponte authority, citing her lack of diligence over 27 years, lengthy unlawful presence, and the importance of finality.

Herrera then petitioned the Sixth Circuit for review.

E. Issues Presented in the Sixth Circuit

Herrera raised three principal challenges:

Numerical bar and equitable tolling: She argued the BIA erred in upholding the numerical bar and failing to consider whether equitable tolling applied.
Sua sponte reopening: She contended the BIA erred in refusing to reopen her proceedings sua sponte, arguing that her circumstances were “exceptional.”
Due process: She claimed the BIA’s decision violated the Fifth Amendment because it was cursory and failed to provide a reasoned analysis of her notice and diligence arguments.

III. Summary of the Opinion

The Sixth Circuit, in an opinion by Judge Hermandorfer, resolved the petition as follows:

Numerical bar / exhaustion: The court held that under 8 U.S.C. § 1252(d), Herrera failed to exhaust administrative remedies because she did not challenge the IJ’s numerical‑bar conclusion—or seek equitable tolling of that numerical limitation—before the BIA. Since the government invoked the exhaustion requirement, the court was obliged to enforce it and denied the petition on this ground without reaching the merits of her notice‑based arguments.
Sua sponte reopening / jurisdiction: The court reaffirmed that it lacks jurisdiction to review the BIA’s refusal to reopen removal proceedings sua sponte, because such decisions are committed to agency discretion by law under 5 U.S.C. § 701(a)(2). The opinion emphasizes that neither Loper Bright nor Sarkisov alters this conclusion. Accordingly, the court dismissed this portion of the petition for lack of jurisdiction.
Due process: The court rejected Herrera’s due‑process challenge, holding that the BIA adequately explained that the numerical bar disposed of her motion and thus had no obligation to reach her alternative arguments. This explanation sufficed to show the BIA “heard and thought,” satisfying constitutional requirements.

The disposition: the petition for review is denied in part (numerical bar and due process) and dismissed in part (sua sponte reopening).

IV. Analysis of Precedents and Doctrinal Framework

A. Exhaustion and Claim‑Processing Rules

1. Statutory exhaustion: 8 U.S.C. § 1252(d)

Section 1252(d) provides that a court may review a final order of removal only if “the alien has exhausted all administrative remedies available … as of right.” The court emphasizes three features:

Exhaustion is non‑jurisdictional but mandatory. Relying on Mazariegos‑Rodas v. Garland, 122 F.4th 655 (6th Cir. 2024), and Fort Bend County v. Davis, 587 U.S. 541 (2019), the court notes that § 1252(d) is a claim‑processing rule rather than a jurisdictional bar. But when the government properly raises it, courts “must enforce” it.
Issue‑specific exhaustion. Under Cuevas‑Nuno v. Barr, 969 F.3d 331 (6th Cir. 2020), petitioners must “preserve each claim by presenting it to the BIA.” The court looks to the petitioner’s BIA brief to determine what was raised and preserved.
Waiver and forfeiture. Once the BIA deems an issue waived, and the petitioner fails to challenge that waiver finding in the court of appeals, that independent error is also forfeited, as noted by reference to In re Burke, 863 F.3d 521 (6th Cir. 2017).

Applied here, the BIA determined that Herrera did not “meaningfully challenge” the IJ’s numerical‑bar ruling and did not argue for equitable tolling of that numerical limitation. Her BIA brief only discussed equitable tolling in connection with a 180‑day time limit, not the numerical bar. The Sixth Circuit agreed that this failed to exhaust the numerical‑bar issue.

2. Practical takeaway on exhaustion

This decision reinforces that:

It is not enough to argue generically about fairness or notice; petitioners must directly attack the precise ground the IJ relied on.
Equitable tolling arguments are deadline‑specific. Tolling of a time bar (e.g., 180 days) does not automatically extend to a numerical bar unless the petitioner clearly makes that argument to the BIA.

B. Numerical Bar to Motions to Reopen and Equitable Tolling

1. Regulatory framework

The decision rests on two provisions governing motions to reopen:

General numerical bar. 8 U.S.C. § 1229a(c)(7)(A) and 8 C.F.R. § 1003.23(b)(1) provide that a person ordered removed may typically file only one motion to reopen proceedings.
In‑absentia rescission specific bar. 8 C.F.R. § 1003.23(b)(4)(ii) further limits motions to reopen to rescind in‑absentia orders based on lack of notice to one such motion.

Herrera had already filed one lack‑of‑notice motion in 2010; the 2020 motion was her second. The IJ relied on these numerical limitations. The BIA treated the issue as dispositive, and the Sixth Circuit agreed that Herrera’s failure to challenge this ruling at the BIA foreclosed review.

2. Equitable tolling and numerical limits

The decision implicitly distinguishes between:

Equitable tolling of time limits (e.g., 180‑day deadlines for some reopening motions); and
Equitable tolling of numerical limits (e.g., the “one motion” rule).

Herrera argued for equitable tolling only as to the 180‑day time bar, not the numerical bar. The court takes a strict view: arguments for tolling must be clearly tethered to the specific constraint the petitioner wants tolled. Otherwise, they are unexhausted.

C. Sua Sponte Reopening and the APA “Committed to Agency Discretion” Bar

1. Regulatory source of sua sponte authority

The BIA’s sua sponte reopening authority arises not from statute but from regulation, specifically 8 C.F.R. § 1003.2(a):

“The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision. … The Board has discretion to deny a motion to reopen even if the moving party has made out a prima facie case for relief.”

Key features:

The authority is regulatory, not statutory; Congress has not codified a right to sua sponte reopening.
The regulation contains no substantive standards or criteria governing when the BIA must reopen; it simply confers broad discretion.

2. Harchenko and the APA

In Harchenko v. INS, 379 F.3d 405 (6th Cir. 2004), the Sixth Circuit held that because the regulation vests “unfettered discretion” in the BIA, decisions whether to reopen sua sponte are “not subject to judicial review,” citing 5 U.S.C. § 701(a)(2) of the APA. That provision bars review of:

“agency action [that] is committed to agency discretion by law.”

Since § 1003.2(a) provides no standard against which a court could judge the BIA’s decision, there is “no law to apply,” making the action unreviewable.

3. Guzman‑Torralva and reaffirming the no‑review rule

The opinion cites Guzman‑Torralva v. Bondi, 154 F.4th 880 (6th Cir. 2025), which described the BIA’s sua sponte power as “unfettered discretion” and reiterated that courts lack jurisdiction to review denials of sua sponte reopening.

Other Sixth Circuit decisions—Cuevas‑Nuno, Barry v. Mukasey, Lopez v. Garland—are cited to reinforce that this “no‑review” principle is “well settled.”

4. Responding to Loper Bright: No change to sua sponte review

Herrera argued that Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), which ended Chevron deference, allows courts now to review the BIA’s sua sponte denials for legal error. The Sixth Circuit squarely rejects this:

Its prior cases refusing review of sua sponte denials did not rest on deference to the BIA’s interpretation of a statute.
Rather, they rested on the APA’s “committed to agency discretion” clause, which is independent of Chevron and statutory interpretation issues.
Therefore, Loper Bright—which concerns how courts interpret statutes, not whether the APA bars review—does not change the outcome.

5. Rais, Vargas‑Rodriguez, and the “legal error” debate

The opinion acknowledges some doctrinal tension within the circuit about whether courts can review alleged legal errors underlying a sua sponte denial:

Rais v. Holder, 768 F.3d 453 (6th Cir. 2014), held that the no‑jurisdiction rule applies even if the denial is said to involve “questions of law.” Many courts and commentators have read Rais as foreclosing legal‑error review of sua sponte denials.
Vargas‑Rodriguez v. Bondi, 156 F.4th 708 (6th Cir. 2025), recently observed that it is “not clear” whether Rais bars review of the legal standards underlying a sua sponte denial, suggesting some possible room for review in a narrow category of cases.

The court sidesteps fully resolving that tension because, in Herrera’s case, the BIA’s decision turns on discretionary and equitable considerations—lengthy unlawful presence, lack of diligence, finality—not on any articulated legal standard or misunderstanding of its own authority.

6. Comparison to Sarkisov and the statutory “extraordinary circumstances” standard

The court distinguishes its recent decision in Sarkisov v. Bondi, --- F.4th ----, 2025 WL 3251118 (6th Cir. 2025), where it held that courts do have jurisdiction to review whether a petitioner showed “extraordinary circumstances” under a specific statutory provision in the Violence Against Women Act (VAWA) context:

In Sarkisov, the statutory provision—8 U.S.C. § 1229a(c)(7)(C)(iv)(III)—conditions the Attorney General’s discretionary power to reopen on whether the case meets the legal standard of “extraordinary circumstances.”
This creates a mixed question of law and fact, which is reviewable under the “safe harbor” of 8 U.S.C. § 1252(a)(2)(D) as interpreted by Wilkinson v. Garland, 601 U.S. 209 (2024).
Sarkisov stressed that it dealt with a statutory standard that is “judicially manageable,” not with “purely discretionary decisions, such as when the [BIA] declines to reopen a removal order sua sponte.”

By contrast:

Here, the BIA’s power to reopen sua sponte stems from a regulation, not a statute.
8 C.F.R. § 1003.2(a) provides no standard like “extraordinary circumstances” that a court could apply; instead, it leaves courts with “no law to apply.”
The no‑review rule in this context rests on the APA, not on any INA jurisdictional provision that § 1252(a)(2)(D) could override.

The court also invokes the Supreme Court’s admonition in ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 283 (1987), that “if the agency gives a ‘reviewable’ reason for otherwise unreviewable action, the action does not become reviewable.” In other words, even if the BIA uses language about “exceptional circumstances,” its explanation does not convert a fundamentally unreviewable exercise of discretion into a reviewable legal question.

7. Effectively unreviewable discretionary decisions

The court’s analysis aligns with other circuits (cited in the footnotes and text, such as the Second, Third, Fifth, Seventh, and Eighth Circuits) that have held that sua sponte denials are not reviewable when the Board simply exercises discretion in light of equitable and policy considerations.

Thus, Herrera’s argument that the BIA misjudged whether her case was “exceptional” is treated as a challenge to the BIA’s fact‑intensive discretion, which—even in circuits that allow narrow legal‑error review—remains unreviewable.

D. Due Process and the BIA’s Duty to Explain

1. Standard for adequacy of BIA explanations

The court relies on a line of Sixth Circuit cases about the sufficiency of the BIA’s reasoning:

Akhtar v. Gonzales, 406 F.3d 399, 408 (6th Cir. 2005): The BIA “has no duty to write an exegesis on every contention”; it must simply “consider the issues raised, and announce its decision in terms sufficient to enable [the court] to perceive that it has heard and thought and not merely reacted.”
Zhang v. Mukasey, 543 F.3d 851, 854–55 (6th Cir. 2008): Once the BIA adequately explains the basis for its decision, it has no duty to address all alternative arguments “for sake of completeness.”
Gishta v. Gonzales, 404 F.3d 972, 980 (6th Cir. 2005): Rejecting claims that the BIA did not perform a “meaningful review” when its reasoning was sufficiently clear.

2. Application to Herrera

Herrera argued that the BIA’s decision was too “cursory” and failed to engage her lack‑of‑notice and diligence arguments. The court responds:

The BIA explicitly explained that the numerical bar was dispositive, and for that reason it did “not address [Herrera’s] remaining appellate arguments.”
That explanation is enough to show the Board “heard and thought” about the case; due process does not require detailed analysis of arguments that are rendered irrelevant by a dispositive procedural bar.

By focusing on the determinative ground (numerical bar and waiver), the BIA complied with its duty; there was no constitutional violation.

V. Complex Concepts Simplified

A. Motions to Reopen and Numerical Bars

A “motion to reopen” is a request to the immigration court or BIA to reopen a closed case to consider new evidence or changed circumstances. Congress and the regulations strongly limit such motions to promote finality:

Generally, a person gets one motion to reopen.
There are often time limits (e.g., 90 days; 180 days for some in‑absentia rescissions).
Some exceptions exist (e.g., changed country conditions for asylum), but they are narrow.

The “numerical bar” simply means: if you’ve already used your one motion to reopen (or one in‑absentia rescission motion on a specific ground like lack of notice), you generally cannot file another—unless you fit a recognized exception.

B. Exhaustion of Administrative Remedies

“Exhaustion” means:

You must raise your arguments first with the agency (here, the BIA) before asking a federal court to review them.
You must raise each specific claim or legal theory, not just the general topic.

In Herrera’s case, it was not enough to argue about lack of notice or fairness. She had to explicitly argue to the BIA that:

The IJ was wrong to treat her second motion as numerically barred; and/or
The numerical bar should be equitably tolled because of specific circumstances.

Because she did not do so, the Sixth Circuit treated those issues as unexhausted and refused to consider them.

C. Equitable Tolling

“Equitable tolling” is a doctrine that allows a court or agency to forgive a missed deadline in exceptional circumstances—typically where:

The person diligently pursued their rights; and
Some extraordinary obstacle (e.g., fraud, serious illness, ineffective assistance) prevented timely filing.

Equitable tolling can apply to:

Time limits (e.g., extending a 90‑day or 180‑day deadline); and, in some arguments,
Numerical limits (allowing more than one motion), though courts are often even more reluctant to toll numerical bars.

Critically, a litigant must:

Identify which rule they seek to toll (time limit, numerical bar, or both); and
Make that tolling argument explicitly in the administrative proceedings.

D. In‑Absentia Removal Orders and Lack of Notice

An “in‑absentia” removal order is entered when a noncitizen fails to appear at their removal hearing after receiving proper notice. The Immigration and Nationality Act permits rescission of such orders if:

The person did not receive proper notice; or
Certain “exceptional circumstances” caused the failure to appear (subject to strict time limits).

In Herrera’s case, her long‑delayed and repeated attempts to reopen on lack‑of‑notice grounds ran headlong into:

The one‑motion limitation for lack‑of‑notice rescission; and
Her failure to respond to the IJ’s request for additional evidence during the first motion.

E. Sua Sponte Reopening

“Sua sponte” means “on its own motion.” In this context, it refers to the BIA’s ability to reopen a case:

At any time (no time limit), and
Even if normal numerical and time limits would bar reopening.

Important characteristics:

The noncitizen has no right to sua sponte reopening.
The BIA is not required to reopen, even if the case seems “exceptional.”
The BIA typically reserves this for truly extraordinary, unusual circumstances.
Because no statute or regulation sets objective criteria, courts deem these decisions committed to agency discretion and thus not reviewable under the APA.

F. “Committed to Agency Discretion by Law” (APA § 701(a)(2))

Under the APA, courts can review most agency actions, except when:

“agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).

This applies where:

There is no meaningful legal standard to apply; and
The decision is essentially a matter of pure policy and discretion.

The court finds that 8 C.F.R. § 1003.2(a)’s sua sponte authority fits this category: it tells the BIA that it may reopen at any time and may deny reopening even if the person has a strong case, but provides no “legal yardstick” to measure when it must reopen.

VI. Impact and Significance

A. For Noncitizens and Practitioners

Precision in BIA briefing is essential. This case underscores that failure to squarely challenge an IJ’s procedural ground for denial (here, the numerical bar) at the BIA level will preclude judicial review, regardless of the strength of underlying merits (e.g., lack of notice).
Equitable tolling must be tailored. General equitable arguments are insufficient. Counsel must:
- Identify each specific rule (time limit, numerical limit) at issue; and
- Argue tolling separately and explicitly for each.
Repeated, delayed filings are risky. Herrera’s decades‑long delay and repeated reopening efforts were treated as evidence of lack of diligence and a reason to deny sua sponte relief. This reinforces that prompt and careful litigation strategy is crucial.
Do not rely on sua sponte reopening as a fallback. The court emphasizes that sua sponte reopening is not a right and is not reviewable. It should be seen as a rare, last‑resort plea to agency grace—not a dependable legal strategy.

B. For the Development of Immigration Law

Clarifying the basis for no review of sua sponte denials. This opinion makes clear that the Sixth Circuit’s no‑review rule for sua sponte denials rests on the APA (5 U.S.C. § 701(a)(2)), not on INA jurisdiction‑stripping provisions that are mitigated by § 1252(a)(2)(D). That clarification matters for post‑Sarkisov litigation, where petitioners might otherwise attempt to leverage the safe harbor to extend review.
Cabining the reach of Loper Bright and Wilkinson. The court signals that recent Supreme Court shifts in administrative law—Loper Bright on Chevron, Wilkinson on reviewability of mixed questions of law and fact—do not necessarily expand judicial review in areas where unreviewability is anchored in § 701(a)(2).
Reinforcing finality in long‑pending removal cases. By emphasizing the length of Herrera’s unlawful presence and her lack of diligence, the court implicitly endorses the BIA’s emphasis on finality and discourages decades‑delayed reopening attempts absent truly extraordinary circumstances.

C. Doctrinally, Within the Sixth Circuit

While the opinion recognizes some internal tension (e.g., Rais vs. Vargas‑Rodriguez) regarding how broadly the no‑review rule extends to alleged legal errors in sua sponte denials, it:

Leaves the core rule intact: ordinary sua sponte denials grounded in equitable and policy considerations are not reviewable.
Signals that any narrow exceptions for review of “legal standards” would not apply where the BIA simply balances facts and policy considerations.

VII. Conclusion

Herrera v. Bondi reinforces two central messages in immigration practice within the Sixth Circuit:

Be meticulous at the BIA. Petitioners must clearly and specifically challenge every dispositive ground applied by the IJ—including procedural bars like numerical limitations—and must distinctly argue any equitable tolling theory. Failure to do so will result in mandatory enforcement of exhaustion and denial of judicial review.
Do not expect judicial review of sua sponte denials. Even after Loper Bright and Sarkisov, denials of sua sponte reopening remain beyond the reach of federal courts, anchored in the APA’s “committed to agency discretion by law” provision. The BIA’s refusal to exercise its extraordinary reopening power is a matter of grace, not of right, and cannot be turned into a reviewable legal question simply by recharacterizing it as “legal error.”

Finally, the court’s rejection of Herrera’s due‑process challenge confirms that the BIA need not address every argument once it has identified a dispositive procedural bar and explained its reliance on that bar. As long as the Board’s reasoning reveals that it has “heard and thought and not merely reacted,” its explanation will meet constitutional demands, even where the underlying merits—such as alleged lack of notice—remain unexamined.