Cirilo Padilla-Navarro v. Eric Holder, Jr.
UNPUBLISHED OPINION FILED. [14-60090 Affirmed in Part and Dismissed in Part] Judge: TMR , Judge: JLD , Judge: LHS. Mandate pull date is 02/09/2015 [14-60090]
Date Filed: 12/18/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
December 18, 2014
Lyle W. Cayce
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A074 588 884
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Cirilo Padilla-Navarro, a native and citizen of Mexico, appeals from the
Board of Immigration Appeals’s (“BIA”) summary affirmance of the
immigration judge’s (“IJ”) denial of his motion to reopen and to sua sponte
reopen his removal proceedings.
He argues that his removal proceedings
should have been reopened based on an intervening change in the law relating
to the physical presence requirement necessary for suspension of deportation,
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Date Filed: 12/18/2014
that the BIA’s summary affirmance procedures violated his due process rights
and were improperly used given the circumstances of his case, and that the IJ
erred in determining in his initial order that Padilla was ineligible for
suspension of deportation.
We review the denial of a motion to reopen for abuse of discretion. Zhao
v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). When the BIA summarily
affirms the IJ’s decision without opinion, as in this case, we review the IJ’s
decision. Galvez-Vergara v. Gonzales, 484 F.3d 798, 801 (5th Cir. 2007).
Padilla’s motion to reopen was untimely, as it was filed 15 years after
the IJ’s decision.
Padilla has not shown that his untimeliness should be
excused based on a statutory exception. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8
C.F.R. § 1003.2(c)(2). Padilla therefore has not shown that the IJ’s denial of
his motion to reopen was an abuse of discretion. In addition, we do not have
jurisdiction to consider his argument that the IJ erred by denying his request
to sua sponte reopen his removal proceedings.
See Enriquez-Alvarado v.
Ashcroft, 371 F.3d 246, 249-50 (5th Cir. 2004). Accordingly, this portion of his
petition for review is dismissed. See Ramos-Bonilla v. Mukasey, 543 F.3d 216,
220 (5th Cir. 2008).
Padilla next argues that the IJ, by failing to sua sponte reopen, ignored
an intervening change in the law regarding his physical presence in the United
States, an alleged change set forth in In re Avilez-Nava, 23 I. & N. Dec. 799,
805 (BIA 2005). The IJ’s decision not to sua sponte reopen his proceedings was
entirely discretionary. The IJ stated that even if Avilez-Nava were applicable,
she would still not sua sponte reopen Padilla’s proceedings because he had
ignored a previous voluntary departure order and because he continued to
violate this country’s immigration laws.
Date Filed: 12/18/2014
Padilla also argues the BIA failed to follow In re X-G-W, 22 I. & N. Dec.
71, 74 (BIA 1998), in which the BIA exercised its authority to sua sponte reopen
a case based on a change in asylum law, and therefore he met the requirements
for a written opinion and submission to a three-member panel. See 8 C.F.R. §
1003.1(e)(4)(i), (e)(6)(ii), (iii). Under the circumstances, Padilla has not shown
that the BIA erred by failing to issue a written opinion or by failing to submit
his case to a three-member panel. See § 1003.1(e)(4)(i), (e)(5). Moreover,
Padilla has not shown that the BIA’s summary affirmance of the IJ’s decision
violated his due process rights. See Soadjede v. Ashcroft, 324 F.3d 830, 832-33
(5th Cir. 2003).
Finally, Padilla concedes that review of the IJ’s underlying decision
denying suspension of deportation is not before this court because he did not
seek administrative or judicial review of that decision.
See 8 U.S.C.
§ 1252(b)(1) (requiring a petition for review to be filed within thirty days of the
final administrative order of removal); Kane v. Holder, 581 F.3d 231, 237 n.14
(5th Cir. 2009).
PETITION FOR REVIEW DENIED IN PART, DISMISSED IN PART.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?