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Padgett-Zelaya v. Attorney General of the United States
Citation: 353 F. App'x 685Docket: No. 09-3829
Court: Court of Appeals for the Third Circuit; November 23, 2009; Federal Appellate Court
Petitioner Tania Padgett-Zelaya sought a review of an August 31, 2009 decision by the Board of Immigration Appeals (BIA) that denied her second motion to reopen immigration proceedings as time and number-barred. The Government requested summary affirmance of the BIA's decision. Padgett, a native of Honduras who unlawfully entered the U.S. in 2002, was served a Notice to Appear in 2007. Following her previous petition's denial, she filed her second motion based on new evidence regarding a 2003 arrest warrant and an extradition request related to a murder accusation in Honduras, claiming exoneration by the Honduran government. The BIA found Padgett's motion barred by procedural rules on time and number limits for reopening cases, ruling that the "changed country conditions" exception did not apply and that no "exceptional situation" warranted reconsideration. The court has jurisdiction under 8 U.S.C. § 1252 and reviews the BIA's denial for abuse of discretion, which occurs only if the decision is arbitrary or contrary to law. The court granted the Government's motion for summary affirmance, determining that Padgett's appeal presented no substantial question. Although the BIA mistakenly ruled Padgett's motion untimely, it did not abuse its discretion in finding her second motion exceeded the statutory numerical limitations. Padgett's first motion was filed in June 2008 and denied in July 2008, while her second motion, filed in July 2009, sought to reopen proceedings terminated in June 2008, confirming the number-bar restriction. Furthermore, the court noted it lacks jurisdiction to review BIA's discretion not to reopen cases sua sponte. Thus, the Government’s motion was granted, and Padgett’s petition for review was denied. The Board considered Padgett's arrest warrant and other factors, concluding she was not eligible for a discretionary adjustment of status under 8 U.S.C. 1255(a). Padgett contends that 8 C.F.R. 1003.2(c)(1) allows for an exception for claims based on 'new evidence'; however, this provision does not create an exception to the rules for reopening motions. It states that a motion to reopen may only be granted if the evidence is material, unavailable, and could not have been discovered at the previous hearing. The Government mistakenly claims that the Board's February 5, 2008, decision is the reference point for timeliness. Instead, the relevant 'final administrative decision' for 8 C.F.R. 1003.2(c)(2) is the date the Board ends the proceedings, either through a final order of removal or the denial of a motion to reopen. Padgett's second motion to reopen, filed on July 1, 2008, was timely as it was within 90 days of the Board's June 3, 2008, order of removal. Although Padgett seeks to argue for equitable tolling of the procedural limitations, this issue was not raised in prior proceedings, leaving the court without jurisdiction to consider it.