Second motion to reopen removal proceedings; 8 USC § 1229a(c)(7)(A); 8 CFR § 1003.23(b)(1); Claim the Immigration Judge (IJ) erred in applying the “number-bar rule” analysis; Whether the court had jurisdiction; Failure to exhaust administrative remedies; § 1252(d); The Board of Immigration Appeals’ (BIA) decision not to reopen the proceedings sua sponte; § 1003.2(a); Administrative Procedures Act (APA); 5 USC § 701(a)(2)

The court denied in part petitioner-Herrera’s petition for review of the denial of her second motion to reopen removal proceedings where she failed to exhaust her number-bar challenge. And it dismissed in part because it lacked jurisdiction over the BIA’s decision not to reopen the proceedings sua sponte. Herrera was ordered removed to Guatemala. She moved to reopen proceedings, arguing that she lacked notice of the original removal hearing. Her request was denied when she failed to respond to an IJ’s request for more information. Nearly 10 years later, she filed a second motion to reopen based on the same lack of notice. “The IJ denied her motion as number barred.” The BIA dismissed her appeal and declined to sua sponte reopen the proceedings. As to Herrera’s argument that the IJ erred when applying the number-bar rule, her BIA “brief did not contest the IJ’s number-bar ruling.” As a result of that, she failed to exhaust this challenge and that precluded the court from reviewing this argument. Herrera also argued that the BIA erred by failing to consider her “exceptional circumstances” when refusing to sua sponte reopen proceedings. The court explained that it “generally lack jurisdiction to review the Board’s denial of sua sponte reopening.” Because it was within the BIA’s “unfettered” discretionary authority whether to reopen sua sponte, this matter was not subject to judicial review. And the court determined that Herrera’s arguments did not “support treating her case as an exception to” the no-review rule. It also rejected her argument that her Fifth Amendment right to due process was violated because the BIA’s decision was only “cursory,” holding that once “the Board explained the ‘basis on which it decided against’ Herrera, it ‘owed no duty’ to examine Herrera’s alternative arguments ‘for sake of completeness.’”