The Board of Immigration Appeals (BIA) — the DOJ component that reviews immigration decisions — is struggling to handle nearly 220,000 pending appeals, and the last thing it needs are countless motions filed by aliens under years-old final removal orders who suddenly realize they may actually be forced to leave. To alleviate that burden, the Board recently issued two orders, one making clear that it won’t give much weight to “equities” acquired by aliens years after they were ordered removed, and the other telling such aliens they must first ask DHS if they want to stay their impending removals. Did I mention that both decisions relate to the same alien?
Matter of Herrera-Nunez I
The respondent in both cases is Felipe De Jesus Herrera-Nunez, and he is in a pickle largely of his own brining.
As the BIA explains in Matter of Herrera-Nunez, 29 I&N Dec. 691 (BIA 2026) (Herrera-Nunez I), the alien is a native and citizen of Mexico who was charged with removability on an unspecified ground, placed into removal proceedings at an unspecified court, and found removable by an immigration judge (IJ) on an unspecified date in the past.
He filed an appeal of the IJ’s removal order with the BIA, and on October 5, 2015, the Board dismissed his appeal.
At that point, by regulation, his removal order was administratively final.
It doesn’t appear he filed a petition for review under sections 242(a)(1) and (b) of the Immigration and Nationality Act (INA) with the U.S. circuit court having jurisdiction over the unspecified place where the IJ heard his case within 30 days of the BIA issuing its order, either.
Instead, he simply decided to ignore the Board’s decision.
Keep in mind it’s a civil offense under section 274D of the INA (subject to a current fine of up to $998 per day) and a crime in certain instances under section 243(a)(1) (carrying a penalty of up to four years in jail — or more, depending on the alien’s criminal and immigration history — and a fine) to willfully fail or refuse to depart within 90 days of the issuance of a removal order, but nothing suggests he’s been subject to either penalty.
Rather than leaving, Herrera-Nunez settled in and got married in 2019; his U.S.-citizen wife thereafter filed an immigrant visa petition on his behalf, which is currently pending with USCIS.
A child joined the family the next year, but instead of taking his family back to Mexico (which is what the law required, in his case at least), Herrera-Nunez waited.
And waited and waited.
Matter of Herrera-Nunez II
Which brings me to the second BIA opinion, Matter of Herrera-Nunez, 29 I&N Dec. 695 (BIA 2026) (Matter of Herrera-Nunez II), though at this point the facts in both cases are essentially the same.
He filed a motion to reopen his now closed removal proceedings in May 2025 “nearly a decade” after his removal order became final, and years past the 90-day statutory deadline for filing such motions in section 240(c)(7)(C)(i) of the INA.
Consequently, the only way Herrera-Nunez could seek to have his closed removal case reopened was to ask the BIA to exercise its “sua sponte” reopening authority, that is to reopen on its own accord.
A regulation, 8 C.F.R. § 1003.2(a), specifically permits the BIA to “at any time reopen or reconsider on its own motion any case in which it has rendered a decision”, though that provision also makes clear that sua sponte reopening is discretionary.
Despite that authority, the Board has long disfavored such requests for exercise of its largesse, explaining nearly 28 years ago in Matter of J-J- that:
The power to reopen on our own motion is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship. When Congress passes laws, and agencies promulgate rules as directed by those laws, these acts are meant to have real and substantial effect. [Emphasis added.]
The BIA carried that point one step further in Matter of Herrera-Nunez II, noting that because his “equities” — i.e., his wife and child — “were acquired years after the respondent was ordered removed”, they don’t carry much discretionary weight.
Note that Herrera-Nunez also claimed that a denial of reopening sua sponte would “result in manifest injustice and a violation of due process”, but the Board reviewed the record and: (1) concluded that he had conceded removability; and (2) found no “indication that his removal proceedings were unfair”.
Moreover, unlike the respondent in the BIA’s recent opinion in Matter of Yadav (where the Board also denied an alien’s request to reopen sua sponte), the visa petition filed on Herrera-Nunez’s behalf by his U.S.-citizen wife “remains pending”, and thus any claim he has to post-opening relief is speculative.
On these three grounds — the acquisition of post-order equities, no showing of unfairness in his now-closed removal proceedings, and the continued pendency of the visa petition filed on his behalf — the BIA denied the alien’s request for sua sponte reopening in Matter of Herrera-Nunez II.
Back to Matter of Herrera-Nunez I
Along with his motion asking the BIA to reopen his case on its own accord, Herrera-Nunez also filed a request with the Board for a discretionary stay of its October 2015 removal order, which the BIA opted to deal with separately in Matter of Herrera-Nunez I.
The regulations are clear that simply filing a motion to reopen (statutory or sua sponte) will not stay an alien’s removal, nor would the filing of a stay request itself, but to physically remove Herrera-Nunez from this country, DHS must have a removal order in hand and the department tries not to jump the gun or force the Board’s hand.
Therefore, if the BIA had granted that request, Herrera-Nunez would have been allowed to remain here indefinitely, free (for a while) from removal.
Except the Board did not grant Herrera-Nunez’s stay request.
Instead, in Matter of Herrera-Nunez I, it created a new precedent applicable only in this case and to stay requests filed after the issuance of this opinion that any alien subject to a final order who requests a stay must first ask DHS to stay removal under its authority in 8 C.F.R. § 241.6.
That regulation grants certain DHS officials separate authority to “grant a stay of removal or deportation for such time and under such conditions as he or she may deem appropriate”, but is also clear that: “Neither the request nor failure to receive notice of disposition of the request shall delay removal or relieve the alien from strict compliance with any outstanding notice to surrender for deportation or removal.”
As the BIA explained in Matter of Herrera-Nunez I, section 241(a)(1) of the INA grants DHS “exclusive authority” to execute removal orders, and so that is where aliens should go first when they are seeking a stay, particularly to avoid “the needless potential for duplicative efforts by DHS”, IJs, and the BIA “when an alien separately requests a discretionary stay from each agency”.
If DHS says “no”, the regulations would still permit Herrera-Nunez to seek a stay from the Board.
Nor is this new rule completely inflexible because, as the BIA continued, aliens who fail to first file a stay request with the Department of Homeland Security “should provide an explanation as to why the request was not filed with DHS with an adequate amount of time for DHS to respond”.
That said, it would be veritable malpractice for any attorney to not first seek a stay from DHS for any alien under a final removal order.
The “Important Public Interest in the Finality of Immigration Proceedings”
As the Board of Immigration Appeals noted in 2017, there’s “an important public interest in the finality of immigration proceedings”. Despite that, for decades aliens have ignored removal orders, only to rush to the BIA once ICE showed up. After Matters of Herrera-Nunez I and II, such aliens may find themselves out of luck — and the Board will definitely have fewer dilatory, late-filed motions to deal with.