*

The Honorable Danny C. Reeves, United States District Judge for

the Eastern District of Kentucky, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0254P (6th Cir.)

File Name: 04a0254p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

YURI HARCHENKO,

OLEKSANDR HARCHENKO,

and TETIANA HARCHENKO,

Petitioners,

v.

IMMIGRATION AND

NATURALIZATION SERVICE;

JOHN ASHCROFT, Attorney

General,

Respondents.

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No. 02-3971

On Appeal from the Board of Immigration Appeals.

Nos. A73 123 548; A73 419 538; A73 418 915.

Submitted: June 9, 2004

Decided and Filed: July 30, 2004 

Before: SILER and GIBBONS, Circuit Judges; REEVES,

District Judge.*

2 Harchenko v. INS, et al. No. 02-3971

_________________

COUNSEL

ON BRIEF: Richard T. Herman, RICHARD T. HERMAN

& ASSOCIATES, Cleveland, Ohio, for Petitioners. Audrey

B. Hemesath, UNITED STATES DEPARTMENT OF

JUSTICE, OFFICE OF IMMIGRATION LITIGATION,

Washington, D.C., for Respondents.

_________________

OPINION

_________________

JULIA SMITH GIBBONS, Circuit Judge. Petitioner Yuri

Harchenko appeals from the decision of the Board of

Immigration Appeals (“BIA”) denying his emergency motion

to reopen, or in the alternative, to reinstate voluntary

departure. Harchenko’s initial petition for asylum was denied

after a hearing on the merits on August 19, 1997. The

Immigration Judge (“IJ”) granted voluntary departure and

Harchenko appealed the denial of his application for asylum

to the BIA. The BIA dismissed his appeal and this court

affirmed, finding that the BIA’s denial of asylum and

withholding of deportation was supported by substantial

evidence in the administrative record. Prior to the issuance of

this court’s opinion in Harchenko’s first appeal, he filed a

motion to reopen based on an approved labor certification and

“deteriorating human rights conditions in the Ukraine,” and,

in the alternative, requested reinstatement of the voluntary

departure period. The BIA found that the motion to reopen

was untimely and declined to exercise its sua sponte authority

to reopen the proceedings pursuant to 8 C.F.R. § 3.2(a). The

BIA also concluded that it lacked the authority to reinstate the

period of voluntary departure because it was denying the

motion to reopen. For the following reasons, the petition for

review of the decision of the BIA is denied.
No. 02-3971 Harchenko v. INS, et al. 3

I.

Harchenko and his family are natives and citizens of the

Ukraine. They arrived in the United States in October 1994,

with a B-2 visitor visa that allowed them to stay until April

20, 1995. On December 9, 1994, Harchenko filed a petition

for asylum that included derivative petitions for his wife, Dr.

Tetiana Harchenko, and son, Oleksandr. On March 12, 1996,

the Immigration and Naturalization Service (“INS”) issued an

Order to Show Cause, charging Harchenko with deportability

for remaining in the United States for a time longer than

permitted. 

Harchenko’s petition for asylum was denied initially on

August 19, 1997. The IJ noted that she had “some problems

with [Harchenko’s] credibility” because his administrativelyfiled application alleged a fear of persecution on the basis of

his Jewish ethnicity, while his supplemental application

emphasized the likelihood that he would be threatened by

criminals if he returned to the Ukraine. The IJ nonetheless

assumed Harchenko’s claims were credible and concluded

that he had failed to establish a likelihood of present or future

persecution in the Ukraine based upon his identity as a

member of the Jewish faith, or as a Jewish national. An order

was entered denying Harchenko’s applications for asylum and

the withholding of deportation and granting voluntary

departure. The order noted that “if the [r]espondents fail to

depart when and as required, the privilege of voluntary

departure shall be withdrawn without further notice or

proceedings and the following order shall become

immediately effective: [r]espondents shall be deported from

the United States to the Ukraine on the charges contained in

the Orders to Show Cause.” 

Although Harchenko filed a timely notice of appeal with

the BIA, his brief was not submitted on time and the BIA

declined to grant an extension. Harchenko v. INS, No. 00-

3789, 2001 WL 1429245, at *2 (6th Cir. Nov. 9, 2001)

(Harchenko I). The BIA later denied his motion to consider

4 Harchenko v. INS, et al. No. 02-3971

his untimely brief and affirmed the IJ’s decision. Id. at *1.

The BIA also reiterated the IJ’s earlier grant of voluntary

departure: “[T]he respondents are permitted to depart from the

United States voluntarily within 30 days from the date of this

order or any extension beyond that time as may be granted by

the district director; and in the event of failure to so depart,

the respondents shall be deported as provided in the [original]

order.” This court affirmed the BIA’s decision on November

9, 2001. Id.

Between the IJ’s initial ruling and the BIA’s decision to

affirm, Harchenko filed a Form I-140 application for labor

certification as a Licensed Physical Nurse at Broadview

Multi-Care facility in Parma, Ohio. This application was

approved by the INS on October 18, 2000. In light of the

approved labor certification, the Harchenkos argued to the

INS that they were eligible for an adjustment in status to

permanent residents upon the reopening of their deportation

proceedings. However, the INS advised them that they were

barred from seeking an adjustment of status for five years

pursuant to § 242B(e) of the Immigration and Naturalization

Act (“INA”), 8 U.S.C. § 1252b (1996), due to their failure to

leave the United States following the issuance of the BIA’s

May 2000 decision granting voluntary departure. 

On October 30, 2001, the Harchenkos filed an emergency

motion to reopen and, in the alternative, to request

reinstatement of voluntarydeparture. The BIA concluded that

the motion to reopen was untimely and rejected Harchenko’s

argument that a final order of deportation did not exist until

the period of voluntary departure had expired. Harchenko had

argued that the period of voluntary departure was tolled while

he pursued an appeal of the BIA’s decision affirming the

denial of his application for asylum, but the BIA noted that

the regulatory deadline for the filing of a motion to reopen

runs from the date the IJ enters an order of deportation, and

not from the date the voluntary departure period expires. In

the alternative, Harchenko had argued that the BIA should

exercise its sua sponte authority to reopen the proceedings
No. 02-3971 Harchenko v. INS, et al. 5

due to exceptional circumstances, but the BIA concluded that

Harchenko’s desire to seek an adjustment of status was not an

exceptional situation warranting reopening. Harchenko also

requested reopening on the basis of changed circumstances

arising in the Ukraine, but the BIA found that he had not

demonstrated such a “reasonable likelihood of success on the

merits so as to make it worthwhile to develop the issues

further at a full evidentiary hearing.” Finally, the BIA denied

Harchenko’s request that it reinstate the period of voluntary

departure, finding that it lacked the authority to do so because

it was denying his motion to reopen. He now appeals from

the order denying his motion to reopen and request for

voluntary departure.

II.

This court’s jurisdiction to review the BIA’s denial of a

motion to reopen deportation proceedings was altered by

adoption of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208,

110 Stat. 3009. Prior to 1996, parties who wished to appeal

any decision of the BIA filed a petition for review in the court

of appeals for the circuit in which the administrative

proceedings had been held. INA § 106(a) (formerly codified

at 8 U.S.C. § 1105(a)). Section 106 was repealed by the

IIRIRA and replaced with a new judicial review provision

codified at 8 U.S.C. § 1252, but the repeal applies only to

immigration proceedings begun after April 1, 1997. IIRIRA

§§ 306(c), 309(a) & (c). The IIRIRA specifically provides for

the application of transitional rules in cases in which

deportation proceedings were pending before April 1, 1997,

and a final deportation order was filed after October 30, 1996.

IIRIRA § 309(c)(4). Because the BIA issued its decision on

July 31, 2002, and petitioners were placed in proceedings

before April 1, 1997, this case is governed by former § 106 of

the INA, as amended by the IIRIRA’s transitional rules.

6 Harchenko v. INS, et al. No. 02-3971

1

The government argues that this court should dismiss petitioners’

brief for failure to cite the administrative record in accordance with

Federal Rule of Appellate Procedure 28(a)(9)(A). Although petitioners’

brief is in fact bereft of citations to the administrative record, the

government cites no authority supporting its argument that this court

should dismiss petitioners’ appeal on that basis. Many of the arguments

asserted by petitioners, with the exception of their argument for changed

country conditions in the Ukraine, are legal, and not factual in nature.

Hence, the lack of citations to the administrative record is not necessarily

fatal to their arguments on appeal. We caution parties, however, that the

court does not condone failures to comply with this rule. Such failures

unnecessarily complicate review of the materials included in the Joint

Appendix.

III.

Although Harchenko asserts eight issues in his brief,1 he is

in essence arguing just two points: (1) the BIA abused its

discretion in denying his motion to reopen, and (2) if this

court affirms the denial of his motion to reopen, it should

nevertheless reinstate his earlier grant of voluntary departure.

A. Motion to Reopen

Harchenko first challenges the BIA’s denial of his motion

to reopen. He argues that the BIA erred in concluding that his

motion to reopen was untimely, in deciding that he had failed

to demonstrate changed country conditions in the Ukraine, in

declining to exercise its sua sponte authority to reopen

proceedings, and in finding that it lacked the authority to

reinstate voluntary departure. This court reviews the BIA’s

denial of a motion to reopen for an abuse of discretion. INS

v. Doherty, 502 U.S. 314, 323-24 (1992). Legal issues are

reviewed de novo. See Mikhailevitch v. INS, 146 F.3d 384,

391 (6th Cir. 1998).

Under the rules in effect at the time the Harchenkos filed

their asylum petition, a motion to reopen in any case

previously the subject of a final decision by the BIA had to be

filed no later than 90 days after the date of the BIA’s decision.
No. 02-3971 Harchenko v. INS, et al. 7

See 8 C.F.R. § 3.2(c)(2). However, the 90-day filing deadline

does not apply to motions to reopen (1) filed by aliens who

are deported in absentia; (2) filed by aliens seeking asylum or

withholding of deportation based on changed country

circumstances; (3) jointly filed by the alien and the INS; and

(4) filed by the INS where the basis of the motion is fraud in

the original proceeding or a crime that would support

termination of asylum. 8 C.F.R. § 3.2(c)(3)(i-iv). Because

they filed their motion to reopen well after the BIA’s May

2000 decision, the Harchenkos asked the INS to join in their

motion, but the INS declined on the grounds that the

Harchenkos were statutorily ineligible to seek an adjustment

of status until after June 22, 2005, due to their failure to

voluntarily depart within 30 days of the final order of

deportation. Before the BIA on their motion to reopen, the

Harchenkos argued that their voluntary departure period was

tolled until 30 days after this court issued its mandate in

Harchenko I and that their motion to reopen was therefore

timely. The BIA dismissed their argument, noting that the

regulatory deadline for the filing of a motion to reopen runs

from the date of the entry of the order of deportation, and not

from the date that the period of voluntary departure expires.

The BIA did not err in reaching this conclusion. See Matter

of Goolcharan, 23 I. & N. Dec. 5 (BIA 2001). This court has

previously noted that the time for filing a motion to reopen

can be equitably tolled, see Miculi v. Ashcroft, No. 03-3276,

2004 WL 886956, at *1 (6th Cir. Apr. 23, 2004) (citing

Iavorski v. INS, 232 F.3d 124, 127 (2d Cir. 2000)), but the

Harchenkos offer no explanation for their failure to file their

motion to reopen within the 90-day deadline established by

8 C.F.R. § 3.2(c)(2). Indeed, the Harchenkos do not

challenge the BIA’s determination that their motion to reopen

was untimely. 

Instead, the Harchenkos argue that this court should reopen

their proceedings based on changed human rights conditions

in the Ukraine. Under 8 C.F.R. § 3.2(c)(3)(ii), there is no

time limitation for filing a motion to reopen to reapply for

asylum or withholding of deportation based on changed

8 Harchenko v. INS, et al. No. 02-3971

circumstances arising in the country of nationality if the

evidence of such conditions is material, was not available, and

could not have been discovered or presented at the previous

hearing. The BIA determined this exception was not

applicable to Harchenko’s motion to reopen because

Harchenko had not established the existence of materially

changed conditions in the Ukraine. The BIA did not abuse its

discretion in doing so. The party filing a motion to reopen

bears a heavy burden. See Doherty, 502 U.S. at 323. As the

Supreme Court has noted, “[g]ranting such motions too freely

will permit endless delay of deportation by aliens creative and

fertile enough to continuously produce new and material facts

sufficient to establish a prima facie case.” INS v. Wang, 450

U.S. 139, 143 n.5 (1981) (quotation omitted). As evidence of

changed human rights conditions in the Ukraine, Harchenko

offers a long list of newspaper articles and references to the

2001 State Department Country Reports. He fails to explain

how these developments would affect him if he is returned to

the Ukraine.

Alternatively, Harchenko requests that this court take

judicial notice of changed conditions in the Ukraine. As we

have previously noted, an alien filing a motion to reopen

based on changed country conditions “cannot rely on

speculative conclusions or mere assertions of fear of possible

persecution, but instead must offer reasonably specific

information showing a real threat of individual persecution.”

Dokic v. INS, No. 92-3592, 1993 WL 265166, *5 (6th Cir.

July 15, 1993) (citing Blanco-Comarribas v. INS, 830 F.2d

1039, 1041-42 (9th Cir. 1987)). “The feared persecution must

relate to the alien individually, not to the population

generally.” Id. Even if this court were to take judicial notice

of changed human rights conditions in the Ukraine, the

articles and reports offered by Harchenko fail to demonstrate

the “individualized” fear of persecution required for asylum.

Therefore, the BIA did not abuse its discretion when it

concluded that Harchenko had failed to show materially

changed conditions in the Ukraine such that his failure to file

a timely motion to reopen could be excused.
No. 02-3971 Harchenko v. INS, et al. 9

Harchenko also contends that the BIA abused its discretion

by declining to exercise its sua sponte authority to reopen

proceedings under 8 C.F.R. § 3.2(a). The BIA noted that its

discretionary power to reopen under § 3.2(a) is limited to

“exceptional situations” and concluded that Harchenko’s

desire to seek an adjustment of status was not exceptional.

The government contends that this court lacks jurisdiction to

find that the BIA abused its discretion by failing to exercise

its discretionary authority to reopen Harchenko’s proceedings.

We agree. The decision whether to invoke sua sponte

authority is committed to the unfettered discretion of the BIA.

See 8 C.F.R. § 3.2(a). “Therefore, the very nature of the

claim renders it not subject to judicial review.” Luis v. INS,

196 F.3d 36, 40 (1st Cir. 1999). See also Calle-Vujiles v.

Ashcroft, 320 F.3d 472, 474 (3d Cir. 2003); Ekimian v. INS,

303 F.3d 1153, 1154 (9th Cir. 2002); Anin v. Reno, 188 F.3d

1273, 1279 (11th Cir. 1999). 

As other courts have noted, the discretion permitted by

§ 3.2(a) is “so wide that even if the party moving has made

out a prima facie case for relief, the BIA can deny a motion to

reopen a deportation order. No language in the provision

requires the BIA to reopen a deportation proceeding under

any set of particular circumstances. Instead, the provision

merely provides the BIA the discretion to reopen immigration

proceedings as it sees fit.” Anin, 188 F.3d at 1279 (citations

and quotation omitted). This reasoning is based on the

Supreme Court’s decision in Heckler v. Chaney, 470 U.S.

821, 830 (1985), in which the court held that “review is not to

be had if the statute is drawn so that a court would have no

meaningful standard against which to judge the agency’s

exercise of discretion.” Section 3.2(a) provides no standard

by which to judge the agency’s exercise of discretion. It

allows the BIA to reopen proceedings in exceptional

situations; it does not require the BIA to do so. As such, this

court is without jurisdiction to review the BIA’s decision

declining to exercise its discretion to reopen or reconsider

Harchenko’s case. 

10 Harchenko v. INS, et al. No. 02-3971

Finally, Harchenko argues that the BIA erred when it

concluded that it lacked the authority to reinstate his period of

voluntary departure. This court reviews the BIA’s refusal to

reinstate voluntary departure under an abuse of discretion

standard. Yousif v. INS, 794 F.2d 236, 244 (6th Cir. 1986).

Voluntary departure is a form of discretionary relief that

allows an alien to leave without stigma or adverse

consequences of deportation. See Contreras-Aragon v. INS,

852 F.2d 1088, 1090 (9th Cir. 1988) (en banc). Under

8 U.S.C. §§ 1254(e)(1) and 1252(b), the Attorney General has

sole discretion to permit an alien under deportation

proceedings to depart voluntarily. By regulation, this

authority is delegated to the INS district director, and, in

limited circumstances, to immigration judges and to the BIA:

Authority to reinstate or extend the time within which to

depart voluntarily specified initially by an immigration

judge or the Board is within the sole jurisdiction of the

district director, except that an immigration judge or the

Board may reinstate voluntary departure in a deportation

proceeding that has been reopened for a purpose other

than solely making an application for voluntary

departure.

8 C.F.R. § 1240.57 (emphasis added). As is clear from the

above language, the BIA’s authority to reinstate voluntary

departure is dependent on the reopening of a proceeding for

a purpose other than solely making an application for

voluntary departure. In this case, the BIA denied

Harchenko’s motion to reopen. Therefore, it lacked the

authority to reinstate voluntary departure and clearly did not

abuse its discretion in denying this request.

B. This Court’s Authority to Reinstate Voluntary

Departure

Harchenko alternatively asks this court to reinstate

voluntary departure. He argues that we are empowered to do

so in his case because the INS and the BIA both declined to
No. 02-3971 Harchenko v. INS, et al. 11

2

It is clear that under the IIRIRA this court has no authority to review

discretionary grants and denials of voluntary departure. 8 U.S.C.

§ 1229c(f) (“No court shall have jurisdiction over an appeal from denial

of a request for an order of voluntary departure.”). 

3

In Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1172-74 (9th Cir.

2003), the Ninth Circuit held that in light of the new provisions in the

IIRIRA, Contreras-Aragon is no longer good law. 

extend or reinstate voluntary departure in order to punish him

for seeking access to this court.

This circuit has never before addressed the circumstances

under which we may reinstate voluntary departure in cases

that are pre-IIRIRA and governed by the transitional rules.

Before adoption of the IIRIRA, the courts of appeals were

divided on the issue of whether and under what circumstances

they had the authority to reinstate voluntary departure.2 The

Ninth Circuit held that once voluntary departure was granted

by the BIA, the privilege “remain[ed] in effect throughout the

period of [judicial] review and for whatever additional period

the [Board] afforded the alien in the order under review.”

Contreras-Aragon, 852 F.2d at 1092.3 The First and Fourth

Circuits took a more moderate position, retaining some

authority over reinstatement or extension of voluntary

departure while at the same time acknowledging that “the

decision to reinstate or extend voluntary departures should

usually be left to the discretion of the District Director, who

is better suited to consider the factual prerequisites . . . .”

Ramsay v. INS, 14 F.3d 206, 213 (4th Cir. 1994); see also

Umanzor-Alvarado v. INS, 896 F.2d 14, 16 (1st Cir. 1990).

These courts were concerned that under the Ninth Circuit’s

original approach, “a court might reinstate voluntary

departure even though, in the interim period between the

BIA’s and court of appeals’ decisions, the alien may have

committed acts which would preclude him from eligibility for

voluntary departure . . . .” Ramsay, 14 F.3d at 213. They

agreed that courts of appeals have the authority to reinstate

voluntary departure, but only when “(1) the INS is wielding

12 Harchenko v. INS, et al. No. 02-3971

its discretion to withhold voluntary departure to deter

applicants from seeking judicial review of BIA decisions, or

(2) the [INS] does not suggest it will present the district

director with any other reason for refusing the reinstatement.”

Id. (quotations omitted) (emphasis and alteration in original).

By contrast, four circuits held, prior to the IIRIRA, that the

statutory and regulatory language vesting authority to

reinstate voluntary departure solely within the discretion of

the Attorney General deprived federal courts of jurisdiction to

reinstate the voluntary departure period. See Nkacoang v.

INS, 83 F.3d 353, 355 (11th Cir. 1996); Castaneda v. INS, 23

F.3d 1576, 1580 (10th Cir. 1994); Alsheweikh v. INS, 990

F.2d 1025, 1027 (8th Cir. 1993); Kaczmarczyk v. INS, 933

F.2d 588, 598 (7th Cir. 1991). These circuits take the better

approach.

Two primary concerns motivated courts that concluded

they had the authority to reinstate voluntary departure preIIRIRA: (1) access to appellate review, and (2) judicial and

administrative economy. Castaneda, 23 F.3d at 1581. These

courts were concerned that, “because the usual thirty-day

departure period permitted by the Board obviously cannot

cover the time expended by a petition for review, voluntary

departure is, in effect, conditioned on a waiver of judicial

review with respect to the underlying deportation order.” Id.

In short, they saw the legislative and regulatory scheme as

presenting aliens with a difficult choice: either elect to depart

voluntarily and abandon any opportunity to overturn the

deportation order, or choose to challenge the order and

thereby forgo the benefits of voluntary departure. Ramsay, 14

F.3d at 211-12. However, as the court in Castaneda noted, a

alien ordered deported “does not lose something when offered

the additional opportunity to depart voluntarily. On the

contrary, he retains precisely the same right to judicial review

he would otherwise have had; it is only that his alternative to

continued litigation has been made more attractive.” 23 F.3d

at 1582. Furthermore, the choice is not as dire as the First

and Fourth Circuits predict. For example, in this case,

Harchenko could have requested an extension of the
No. 02-3971 Harchenko v. INS, et al. 13

voluntary departure period from the district director, but he

failed to do so. He was placed on notice of this option and of

the consequences for failing to do so in both the IJ’s and the

BIA’s initial decisions denying his request for asylum.

Having failed to follow this procedure, Harchenko should not

now be allowed to obtain relief he was offered earlier but

declined to accept.

The other rationale offered by courts that have assumed the

authority to reinstate voluntary departure is a concern for

judicial economy, but this concern is similarly misplaced. In

Umanzor-Alvarado, the First Circuit noted that if “the

government does not suggest it will present the district

director with any other reason for refusing reinstatement[,]

. . . to require the petitioner to [then] apply to the district

director to pass upon the matter would be pointless, for the

director could not lawfully refuse reinstatement.” 896 F.2d at

16. This reasoning “reflects both misplacement of the burden

of persuasion and application of the wrong standard for the

district director’s decision.” Castaneda, 23 F.3d at 1582.

The district director has discretion to grant voluntary

departure. It is not legally mandated. “[E]ven if the alien has

not done anything to render [himself] legally ineligible for

reinstatement or extension of voluntary departure, the district

director always retains discretion to grant or deny the

privilege.” Id. 

Finally, it is worth noting the circumstances of Harchenko’s

appeal in this case. This is not a situation where an alien is

appealing the initial denial of his asylum application and

asking this court to reinstate the grant of voluntary departure

in the event that it decides to affirm the BIA. Nor is it a case

where a petitioner has filed a motion seeking to stay voluntary

departure pending adjudication of his initial appeal. See

Nwakanma v. Ashcroft, 352 F.3d 325, 327-28 (6th Cir. 2003).

In this case, Harchenko filed an untimely motion to reopen

and alternatively requested reinstatement of his earlier grant

of voluntary departure. It does not appear that he requested

this form of relief in his initial appeal to this court. Instead,

14 Harchenko v. INS, et al. No. 02-3971

he chose to file an untimely motion to reopen. Harchenko has

cited no authority for the proposition that this court may

reinstate his period of voluntary departure in the absence of a

timely-filed motion to reopen. If the BIA lacks the authority

to reinstate voluntary departure when the proceedings have

not been reopened, then surely this court does as well. 

IV.

For the foregoing reasons, the petition for review of the

decision of the BIA is denied.