Tania Padgett-Zelaya v. Attorney General of the United States

CLD-042 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3829
___________
TANIA PADGETT-ZELAYA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A087-021-274)
Immigration Judge: Walter A. Durling
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
November 13, 2009
Before: BARRY, FISHER and NYGAARD, Circuit Judges
(Opinion filed: November 24, 2009)
_________
OPINION
_________
PER CURIAM
Petitioner Tania Padgett-Zelaya seeks review of an August 31, 2009 decision of
the Board of Immigration Appeals that denied as time and number-barred her second
motion to reopen immigration proceedings. The Government has moved for summary

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The Board had weighed the arrest warrant, along with other factors, in determining1
that Padgett was not entitled to a discretionary grant of adjustment of status pursuant to 8
U.S.C. § 1255(a).
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affirmance of the Board’s decision. For the reasons that follow, we grant the motion and
will deny Padgett’s petition for review.
I.
Padgett is a native and citizen of Honduras. She entered the United States
unlawfully in 2002, and was served with a Notice to Appear in October 2007. We
summarized the bulk of Padgett’s procedural history in a previous opinion, see Padgett-
Zelaya v. Att’y Gen., No. 08-2780, 2009 WL 1783989 (3d Cir. June 24, 2009), and
incorporate that history here by reference. It suffices to say that after we denied Padgett’s
prior petition for review, she filed her second motion to reopen proceedings with the
Board. That motion was predicated on new evidence regarding the 2003 arrest warrant
from Honduran authorities, and a related extradition request, that implicated Padgett in
the murder of a man in her native country. Padgett alleged that this new evidence1
“shows that the government of Honduras, in late 2008 had exonerated [her] from all
wrongdoing in the death of [the murder victim].”
The Board determined that Padgett’s motion was barred by procedural rules
governing the time and number limitations for motions to reopen, and that the “changed
country conditions” exception to those rules did not apply. The Board also determined

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that Padgett “has not shown that an ‘exceptional situation’ exists that would warrant the
Board’s exercise of its limited discretion to reconsider or reopen these proceedings sua
sponte.” Padgett appealed. The Government has moved for summary affirmance of the
Board’s decision, and Padgett has filed her opposition.
II.
We have jurisdiction under 8 U.S.C. § 1252. We review the Board’s denial of a
motion to reopen using an abuse of discretion standard. See Borges v. Gonzales, 402
F.3d 398, 404 (3d Cir. 2005); see also Cruz v. Attorney General of the United States, 452
F.3d 240, 242 (3d Cir. 2006). Under this standard, we may reverse the Board’s decision
only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166,
174 (3d Cir. 2003). Summary affirmance is reserved for situations where, for example,
“no substantial question” is presented by the appeal, or where “subsequent precedent . . .
warrants such action.” See Third Circuit LAR 27.4 and I.O.P. 10.6; Cradle v. U.S. ex rel.
Miner, 290 F.3d 536, 539 (3d Cir. 2002).
III.
We will grant the Government’s motion for summary affirmance because this
appeal presents no “substantial question.” Barring exceptions not applicable to the facts
of this case, motions to reopen must be filed within 90 days from the date “the final
administrative decision was rendered,” and only one such motion is allowed. 8 C.F.R. §

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Petitioner argues that 8 C.F.R. § 1003.2(c)(1) provides an applicable exception for2
claims based on “new evidence,” but that provision is not an exception to the procedural
rules governing motions to reopen. Instead it provides that a motion to reopen “shall not
be granted unless it appears to the Board that evidence sought to be offered is material
and was not available and could not have been discovered or presented at the former
hearing.” Id.; see also Filja v. Gonzales, 447 F.3d 241, 253 (3d Cir. 2006).
The Government incorrectly asserts that the Board’s February 5, 2008 decision,3
which merely remanded proceedings to the Immigration Judge, is the lodestar for
determining timeliness. In fact, the “final administrative decision” for § 1003.2(c)(2)
purposes is the date that the Board terminates the proceedings, either by, for example, a
final order of removal, see Orehhova v. Gonzales, 417 F.3d 48, 51 (1st Cir. 2005), or the
denial of a motion to reopen. See Nevarez v. Holder, 572 F.3d 605, 607 (9th Cir. 2009).
When Padgett filed her second motion to reopen on July 1, 2008, the “final administrative
decision” was the Board’s June 3, 2008 order of removal and, as a result, Padgett’s
motion was filed well within 90 days from that date.
While Padgett argues that she is entitled to have the motion to reopen procedural4
limitations equitably tolled, she did not raise this issue below. We thus lack jurisdiction
to consider it. See Hoxha v. Holder, 559 F.3d 157, 159 (3d Cir. 2009)
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1003.2(c)(2). Though it erred in determining that Padgett’s motion to reopen was2
untimely, the Board did not abuse its discretion in determining that Padgett’s second
motion to reopen exceeded the statutory numerical limitations. Padgett’s first motion to
reopen, filed on June 10, 2008, was denied by the Board on July 10, 2008. Her second,
filed on July 1, 2009, sought to reopen proceedings that were terminated by the Board on
June 3, 2008, when it ordered Padgett removed to Honduras. Thus, it is clear that3
Padgett’s second motion to reopen was number-barred. Finally, and as the Government4
correctly points out, this Court lacks jurisdiction to review the Board’s decision not to
reopen proceedings sua sponte pursuant to 8 C.F.R. § 1003.2(a). See Calle-Vujilles v.
Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003) (“[b]ecause the BIA retains unfettered

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discretion to decline to sua sponte reopen or reconsider a deportation proceeding, this
court is without jurisdiction to review a decision declining to exercise such discretion to
reopen or reconsider the case”).
Accordingly, the Government’s motion is granted, and we will deny the petition
for review.

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