IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60090

Summary Calendar

CIRILO PADILLA-NAVARRO,

Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

Respondent

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.

United States Court of Appeals

Fifth Circuit

FILED

December 18, 2014

Lyle W. Cayce

Clerk

 

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No. 14-60090

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. 

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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.

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