* Th e Hono rabl e DannyC. Reev es, Unit ed Sta tes Dist ric t Ju dge f

or the Eastern Distri ct of Kentucky, si tting by designation.

1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0254P (6th C ir.) File Name: 04a02 54p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

Y URI H ARCHENKO , O LEKSANDR H ARCHENKO , and T ETIANA H ARCHENKO ,

Petitione rs,

v.

I MMIGRATI ON AND N ATURALI ZATI ON S ERVICE ; J OHN A SHCROFT , Attorney Genera l, Responde

nts. X - - - -

> , - - - - - - - N No. 02-3971

On Appea

l from the Board o f Imm

igration Appeal s. Nos. A73 123 548; A73 419 538; A73 418 915.

Submitted: June 9, 2004

Decided and Filed: July 30, 2004

Befor e: SIL ER and GI

BBONS, Circuit Judg es; REEVE S, District Judge. * 2 Harchen ko v. INS , et al. No. 02-3971

_________________ COUNSEL

ON BRI EF: Richard T. Herman, RICHARD T. HERMAN & ASSOCIATES, Cleveland, Ohio, for Petitioners. Audrey B. Hemesath, UNITED STATES DEPARTMENT OF JUSTICE, OFFICE OF IMMI GRATION L

ITI GA T ION, Washingt on, D.C., f

or Respon

dents.

_________________ OPINION

_________________ JU LIASMITH

GIB BONS, Circuit Judge. Petitioner Yuri Harchenko ap peal s from the decision of the Board of Immigration

Appeals (“BI

A”) denying

his emergency

motion to reopen, or in

the alternative, to reinstate voluntary departure. Harchenko’s initial petition for asy lum was denied after a he aring on the merits on August 19, 1997. The Immigration

Judge (“IJ”) gr

anted v o luntary depar

ture and Harchenko appealed the denial of his application for asylum to the BIA. The BIA dismissed his appeal and this court

a ffirmed, finding that the BIA ’s denial of asy lum an d withh oldin g of deportation was supported by substantial evidence inthe admin

istrative record . Prior tothe issuance of this court’s opinion in Harchenko’s first appeal, he fi led a motion to reopen based on an approved labor ce rtification and “deter iorating human rig

hts conditions in the Ukraine,” and, inthe alter

native, r equeste d reinsta

tement of the volu ntary d eparture period. The BIA found that the motion to reop e n
was untimely and

declined to exercis e its sua sponte authority to reopen t

he proce edings p

ursuant t o 8 C.F.R. § 3.2(a). The BIA also concluded that

it lacked the authority

to reinsta te the period of voluntary depa

rture because it was den ying the motion to reopen. For the following reasons, the petition for review of the decision of the BI A is denied.No. 02-3971 Harchen ko v. INS , et al. 3

I.

Harchenk o and h is family are na tives and citizens of the Ukraine. They

arrive d in

the United States in October 1994, with a B-2 visitor visa that al lowed the m to stay until Apri l 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 (“I NS”) issued an Order to Show Cause, charging

Harche nko with de

portabili ty for remaining in the United States for a time long er th an permitted.

Harchenko’s petition for asylum wa s de nied initially on August 19, 1997. The IJ noted that she had “ some prob lems with [Harche nko’s] cr ed ib il it y” b ec au se hi s a dm in is tr at iv el yfiled application alleged a fear of persecution on the basis of h is J ewish ethnicity, while his supplemental applica tion emphasized

the likelihood that he would be thr eate ned by criminal s if he returned to the Ukra ine. The IJ none th ele ss assumed Harchenko’s claims were credible and concluded that he had failed to establish a likelihood of present or future persecut ion in the Ukr

aine bas ed upon hi s identity as a member of the Jewi shfaith, or as a Jewish national. An order

was entere d denying H archenko’ s applications for asylum and the withholding of deportation and granting voluntar y departure. The order noted that “if the[r]espon dents fa il to depart when and as required, the privilege of voluntary departure shall be withdrawn wit hout further notice or pr oceedi ngs and the following order shall bec om e immediate ly

effective: [r]espondents shall be deported from the United States to the Ukraine on the charg es conta ined in the Orders to Show Cause.”

Al thou gh Harche

nko filed a timely notice of appeal w ith the BIA, his bri ef was not sub mi tt ed o n t im e an d t he B IA declined to grant an extension. Harchen ko 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 Harchen ko v. INS , et al. No. 02-3971

his untimely brief and a

ffirmed the IJ’s decision. I d. at *1

. The BIA also rei

te rated the IJ’s earlier g

rant of voluntary departu re: “[T]he respon dents are permitted to depart from the United States vol

untarily within 30 days from the

date of t his order or any extension beyond

that time as may be g

ranted by the district director; and in the even t of failur e to so dep art, the responde

nts shall be

deporte d as provi ded in the [origina l] order.” This court affirmed the BIA’s

decision on November 9, 2001. Id.

Between the IJ’s initial ruling and the BI A’ s decision

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

as a Licensed Phy

sical Nurse at Broadview Multi -Car e facility in Parma, Ohio. This applica tion was approved by the INS on Octob er 18, 2000. In ligh t o f the approved labor certification, the Harchenkos ar gued to the INS that they were

eligible for an adju stment in st atus to permanent

residents upon the reopening of their deportation procee dings. However, the IN S advised themthat they were barred from see king an adjustmen

t of status

f orfive yea

rs pursuant to § 242B(e) of the I

mmigration and Naturalization Act (“INA”), 8 U .S.C. § 1252b (1996), due to their failure to le av e the United States following the issuance of the BI A’s May 2000 decision g

ranting voluntary

departure.

O n October 30, 2001, the Harchenkos filed an eme rgency

m otion to reopen and, in the alternative, to reque s t reinstatement

of voluntar

y depar ture. The BIA

concluded that the motion to reopenwas untimely and rejected Harchenko’s argument that a final order of deportation did not exist until the pe ri od of

vo lu nt ar y d eparture had expired. Harchenko had argued that the period of

voluntary depar

ture was tolled whi le he pursu ed an appeal of the BI A’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 orde r of de portation, and notfrom the date t

he vol unt ary d epa rtu re p eri od e xp ire s. In the alternative, Harchenko had arg ued that t he BI A should exercise its su a sp onte autho rity to re open t he pro ceedin gsNo. 02-3971 Harchen ko v. INS , et al. 5

due to exceptional circumstances, but the BIA conclude d that Harchenko’s desire to seek an adjustment of status was not an exceptional situ ation warran ting re openi ng. Harchenko also requested reopening on the basis of ch an ged circumstances arising in the Ukraine, b ut the B IA found that he had not demonstrated

such a “reasonable likelihood of success on the merits so as to make it worthwh ile to d evelop the issues further at a full evidentiary

hearing.”Finally, the B IA denied Harchenko’s request that it reinstate the period of voluntary departure, finding

that it lacked t he author ity to do so bec ause it w as deny ing his motion to reopen. He now appeals from the or de r denying

his motion to reopen and request for voluntary depar

ture.

II.

This court’s

jurisdi ction to review the BIA ’s denial of a motion to reopen deportation proceedings wa s altered by adoptionof the Illega

l Immigration Reform and Imm igrant Responsib ility

Act of 1996 (“IIR IRA” ), P ub. L. No. 104-208, 110 Stat. 3009. Prior

to 1996, parties who wished to appeal any decision of the BIA f

iled a petition for review in the court of appeals for t

he ci rcuit in which the administrative procee dings had bee

n held. I NA § 106( a) (for

merly codified at 8 U.S.C. § 1105(a)). Section 106 was repealed by the II RIRA and replaced with a n ew judicial review provision codified at 8 U.S.C. § 1252, but the repeal ap pli es only to immigration

proceedings begun af

ter April 1, 1997. IIRI

RA §§ 306(c), 309(a) & (c). The II RIRA specifically

provides for t he application of transitional rules in cases in which deportation

procee dings we

re pendi ng bef ore Apr il 1, 1997, and a final deportation order

was filed after

October 30, 1996. II RIRA § 309(c)(4). B ecause the BI A issued its decision on July 31, 2002, a

nd petitioner s were p laced i n proc eedin gs before April 1, 1997, this case is governed by former § 106 of the I NA, as amended by

the I IRI RA’s tran sitional r

ules. 6 Harchen ko v. INS , et al. No. 02-3971

1 The gove rnme nt argue s that this co urt s hou ld dismiss petitioners’ brief for f ailure to ci te the adm inistrative re cord in acco rdan ce with Federal Rule of Appellate Procedure 28(a)(9)(A). Although petitioners’ brief is i n fact

bereft of cit ations to th e adminis trat ive reco rd, the government cites no authori ty supporting i ts argument that this court shou ld dismiss petitioners’ app eal on that basis. M any of the argum ents asserte d by p etitioner s, with the except ion of the ir argument f

or changed country conditi ons in t he Ukraine, ar e l egal, and not f actual in nat

ure. Hence, the lackof citation s to the a dmin istrative re cord is not nec essarily fata l to their argu ments on appeal. We ca ution parties , however, that the

cou r t does not condone f ailures t o comply wit

h thi s rul e. Such f

ailures

unne cessa rily com plicate review of the mat erials i ncluded in the Joint Append ix. III.

Alth ough Harchenko asserts e ight issues in his brief, 1 he is in e ssence a

rguing just two poi

nts: (1) the BI

A abuse d it s discretionindenying his motion to reopen, and (2) i f this court affirms the denia

l of his moti on to reop en, it shou ld nevertheless reinstat

e his earlier grant of

voluntary depar

ture.

A. Motion to Reopen

Harche nko first c

halleng es the B IA’ s denial o f his motion to reopen. He argues that the B IA e rred in c oncluding

that his motion to reopen was untimely, in de ciding that he had failed to demonstr

ate cha nged c ountry

condition s in the Ukr

aine, in decliningto exerci se its sua sponte authority to reopen procee dings, and in fin

ding tha t it lacke d the authority

to reinstat e voluntary depar

ture. This cour

t reviews the BI

A’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 M ikhail evitch v . INS , 146 F.3d 384, 391 (6th Cir. 1998).

Under the rule s in effe ct a

t the ti me the Harchenkos filed their asy lum p et ition, a mot

ion to reo

pen in any

case previous ly

the subject of a final decision by the BIA had

to be filed no later than 90 days afte

r the date of the BI

A’s decision.No. 02-3971 Harchen ko 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 absenti

a ; (2) filed by

aliens seeking asy

lum or withholding of deportation based on chang ed co untry circumst ances; (3) jointly

filed by the alien a

nd the INS; and (4) filed by the I

NS where the basis of the motion is f raud in the original proceeding or a c rime that would support term ination of asy

lum. 8 C.F. R. § 3.2(c )(3)(i- iv). Be cause t hey filed their motion to reopen well after the BI A’ s May 2000 decision, the Harchenkos asked the INS to join in the ir motion, but the INS declined on the gr ounds that t

he Harchenkos were sta

tutorily ineligib le to seek an adjustment of status until after June 22 , 2005 , due to the ir failur e to vol untarily

depart within 30 days of the final order of deportation. Before the BI A on the ir mot ion to reopen, the Harchenkos argued

that their voluntary depa

rture period was t olled until 30 da

ys a fter this court issu

ed its mand

ate in Harchenko I

and that their mot ion to reopen was therefore ti me ly. The BIA di smis sed their argument, noting that the regulatory

deadline for the filing of a motion to reopen runs fromthe date of the entry

of the order of

deportation, and not fromth e d at e t ha t t he pe ri od of vo lu nt ar y d eparture expir es. The BI A did not e

rr in rea ching th is conclusion. See Matter of Goolcharan , 23 I. & N. Dec . 5 (BIA 2001). This cour t has previous ly

noted that the time for filing a motion to reopen

can be equitably tolled, see Mic uli v. Ashc roft

, No. 03-3276, 2004 WL 8 86956, 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 fa ilure to f ile their motion to reopen within the 90-d ay dea dline established by 8 C.F.R. § 3.2(c)(2). Inde ed, the Harchenkos do not chall enge the BIA’s dete

rmination thattheir

motion to reopen was untimely.

Instead, the Harchenkos argue that this court should reope n their procee dings based

on changed human rights conditions inthe Ukraine. Under 8 C.F.R. § 3.2(c)(3 )(i i), there is no time limitation f

or fil ing a motion to reopen to reapply for asylum or w ithholding of deportation based on changed 8 Harchen ko v. INS , et al. No. 02-3971

circumstances arising

in the cou

ntry of nationality

if the evidence of such co ndi tions is material, was not available, and coul d not have been discovered or presented a t the previou s hearin g. The BI

A determ

in ed this exception was not applica ble to Harchen

ko’s motion to re open bec ause Harche nk o had not established the existen

ce of ma terially changed condition s in

the Ukra ine. The BIA did not abuse its disc retion in doing so. The party filing a motion to reopen bears a heavy

burden. See Dohe

rty , 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 cre ative and fertile enough to continuously produce new and m

aterial facts sufficient to establi sha prima facie case.” INS v. Wang , 450 U.S. 139, 143 n.5 (1981) (quotation omitted). As evidence of chang ed human r

ights conditions in the Ukraine, Harchenko offers a long li st

of n ewspaper articles and refe rences to the 2001 State Dep artment C ountry Reports. H e fails to

explain how these developments would affect him if he is

returne d to the Ukraine.

Al te rn at iv el y, Harchenko requests that this co u rt take judicial notice of changed conditions in the Ukraine. As we ha ve pr eviously noted, an alien f iling a motion to reopen ba sed on changed country

conditions “cannot re ly o n speculative conclusions or mere assertions of fear of possible persecution, but instea

d must offe

r reasonably

spec ific informationshowing a real threat of individualpersecution.” Dokic v. INS , No. 92-3592, 1993 WL 265166, *5 (6th Cir. July 15, 19 93) (ci ting Blanco-C omarrib as v. INS

, 830 F.2d 1039, 1041-42 ( 9th Cir. 198 7)). “The fear ed perse cution mus t

r ela te to the alien individually, not to the population generally .” Id. Even if

this court were to take judicial notice of changed human

r ights conditions in the Ukraine, the articles and reports offered by Harche nko fail to

demonstr ate the “individu

alized” f ear of p ersecu

tion requ ired for asy lum. Therefore, th e BIA did not abu se its disc retion when it concluded

that Harchenko had failed to sho w mat erially changed condition s in the Ukr

aine such that his f

ailure to file a timely motion to reopen could be e xcused.No. 02-3971 Harchen ko v. INS , et al. 9

Harchenko also contends that the BIA abused its discre

tion by declining to exer c ise its sua sponte authority to reopen procee dings under 8 C.F.R. § 3. 2(a). The BI A noted that its discretionar

y power to

reopen u nder § 3. 2(a) is li

mited to “exceptional situations” a nd c oncluded that Harchenko’s desire to s eek anadjustmen t of status

was not exceptiona

l. The government contends that this court lacks jurisdiction to find that the B IA a

bused its d

iscretion by

failing to exercis e its dis cretionary

authority to reopen H ar chenko’s procee dings

. We agree. The decision whether to invoke sua spon te authority is committed to the unfettered discretion of the BIA. See 8 C. F.R. § 3. 2(a). “Therefore, the ve ry nature of the claim renders it not subject to judicial review.” Luis v. INS

, 19 6 F.3d 36, 40 (1st Cir. 1999). See also Calle-Vuj iles 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 oth er courts have noted, the discretion permitted b y § 3.2(a ) is “so wi de that e ven if the party moving has ma d e outa prima

fac ie c ase for rel ief

, t he B IA can den

y a motion to reopen a deportation orde r. No language in the provision requires the BI A to reopen a deportation proceeding under any set of pa rticular circumst ances. I nstead, t h e provision merely provides the BIA

the discr etion to reopen immigration procee dings as it s ees fit.” Anin , 188 F.3d at 1279 (citations and quotation omitted). This reasoni n g is based on the Supreme Court’s decision in Heck ler v. Chaney , 470 U.S. 821, 830 (1985), in which the court he ld that “r eview is n ot to be had i f the statute is drawn so that a court would ha ve n o

m ean ingful standard against which to judge the agency’s exerci se of discretion.” Section 3.2(a) provides no standard by whi ch t o j udg e th e ag enc y’s e xe rci se o f di scr eti on. It all ows the BIA to reope n proceedings in exceptional situations ; it doe s no t re qui re t he B IAto do so. As such, this court is without jurisdiction to review the BIA’s dec ision declining to exercise its discretion to reopen or reconsider Harchenko’s case. 10 Harchen ko v. INS , et al. No. 02-3971

Fi na ll y, Harche

nko arg ues that the BI

A erred when it concluded

that it lac ked the a uthority to reinsta te his period of voluntary departu re. Thiscourt reviews the BI A’s ref usal to reinst a te voluntary depar ture under an abuse of discretion

s tandar d. Yousif v. INS

, 794 F.2d 236, 244 (6th Cir. 1986). Voluntary

departure is a form of discr etionary re lief that allows an alien to leav e wi thout stig ma or adv erse consequences of deportation. See Contr eras-Ara gon v. INS

, 852 F.2d 1088, 1090 (9th Cir. 1 988) (en banc). Under 8 U.S.C. §§ 1254(e)(1) and 1252(b), the Attorney Ge neral has sole discretionto permit an alien under deportation procee dings to dep artvoluntar ily. By regula tion, this authority is delegated to the INS district dir ector, a nd, in limitedcircumstances, to immigration judges and to the BIA:
Authority to reinstate or extend the time within whichto depart voluntarily specified initially by an immigra

t ion judge or the B oard is wi

thin the so le juris dict ion of the districtdirect or, ex cept t hat an immi gratio n jud ge or the Board may reinstat e volunta ry departu re in a deportation proceeding

that has been reopened for a purp o se other th ansolely making a

n application for volun tary departure.

8 C.F.R. § 1240.57 (emphasis added). As is clear from the abo ve language, the BI

A’s authority to reinstate voluntar y departure is dependent on the reopening of a proce eding for

a purpose other

t han solely making

an application for voluntary departure. In this ca se, the BIA denie d Ha rchenko’s motion to reopen. Therefore, it lacked the authority to reinsta te volunta ry departu re and c learly

did not abuse its discreti on in deny

ing this r equest.

B. This Court’s Authority to Reinstate Voluntary Departure

Harchenko alternatively a sks this court to reinstat e voluntary departure. He argues that we are empowered

to do

so in his cas e becau se the I NS and the

BIA both decl i ned t oNo. 02-3971 Harchen ko v. INS , et al. 11

2 It is clear tha t unde r the IIR IRA this cou rt has no autho rity to revi ew discretionary

gra nt s an d deni als of v olu nt ary depar tu re. 8 U.S. C. § 1229c(f

) (“ No court

shal l ha ve ju ris dict ion over a n appealfr om denial of a req uest for a n ord er of vo luntary d epa rture.”)

.

3 In Zazue ta-Carrillo v. A sh crof t , 322 F.3d 11 66, 1172 -74 (9th Cir. 2003), the Ninth Circuit he l d that in l ight of t

he new provisions in t he IIRIR A, Contre ras-

Aragon is no lon ger go od la w. extendor reins tate voluntary depar ture in order

to punish hi

m for see king ac cess to th

is court.

This circuit has never before addre ssed the circumstances under which we ma y r einstate voluntary de parture in cases that are pre -II

RIRA a nd gove rned by the tran sitional r

ules. Before adoption of the II RIRA, the courts of appe als were divided on the issue of whether and under what circumstanc es they had the authority to re instate voluntary depa rture. 2 The Ninth Circuit held that

once voluntary depar

ture was granted by the BIA, the privilege “remain[ed] in effect throug hout 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 Circuitstook a more moderat e position, r etaining some authority over re inst a tement or extension of voluntary departure while at the same time acknowledging that “the decisionto reinstate or extend v oluntary departu res shoul d usually be left to the discretion of the District Director, who is better su

ited to consider th e factu al prere quisites . . . .” Ramsay v. INS , 14 F.3d 206, 213 (4 th Cir. 1994) ; see also Umanzor-Alvarado v. I

NS , 896 F.2d 14, 16 (1st Cir. 1990). These courts were concerned that under the N inth Circuit’s original approach, “a court might reinstate voluntar y departure even though, in the interim period between the BIA’sand cour

t of appe als ’ decisions, the alien may ha ve committed

acts which would preclude him from eligibility for voluntary departure . . . .” Ramsay , 1 4 F.3d at 213. They agreed t hat co urts of a

ppeals ha ve the au thority to reinsta

te voluntary departure, but only

when “(1) the IN S is wielding 12 Harchen ko v. INS , et al. No. 02-3971

its dis cre tion to withhold voluntary departure to dete r applica nts from seeking

ju di cia l re vi ew o f BIA decisions, or (2) t he [IN S] does not

sugge st it will pr

esent the distric t director with any other re asonfor

refusing the reinstatement.” Id. (quotations omitted) (emphasis and alteration in original). By contra st, four circuits held, prior to the II RIRA, that the statutory and regulatory

language vesting a

utho r ity t

o reinstat e voluntary depar

ture solely within the discretion of the Attorney

Genera l deprive d feder

al court s of jurisdi ction to reinstat e the voluntary depa

rtur e pe riod. See Nkacoang v. INS

, 83 F.3d

353, 355 ( 11th

Cir. 1996) ; Castaneda

v. INS , 23 F.3d 1576, 1580 (10th Cir. 1 994); Alsheweik h v. INS , 990 F.2d 1025, 1027 ( 8th Ci r. 1993); Kaczmarc zyk v. I NS , 933 F.2d 588, 598 (7th Cir. 1991). These circuits take the better approach.

Two primary

concer ns motivate d courts that concluded they had the a

uthority to reinsta

te volunta

ry departure preII RIRA: (1) access to ap pell ate review, and (2) judicial and administrative economy. Castaneda , 23 F.3d at 1581. These courtswere concerned that, “beca use the usual thirty-day departure period permitted by the B oard obviously cannot

co ver t he time expended by a pe tition for review, voluntary departure is, in effect, conditioned on a waiver of judicial review with respect to the underly ing deportation order.” Id. Inshort, they saw the leg islative and regulatory

scheme as presentingaliens wi

th a diffi cult

choice: either

elect to depart voluntar ily an d a ba nd on an y opp ortunity to overturn the deportation

order, or choo se 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 alienordered dep or

ted “doe s not lose

something when offered the additional opportunity to depart voluntar il y. On the

co nt ra ry, he retains precisely the same right

to judicial review he would othe

rwise ha ve had; it is only that his alterna

tive to continued litigationhas been made more attractive.” 23 F.3d at 1582. Furthermore, the ch oice is not as dir e as the F irst and Fourth Circuits predict. For example, in this case, Harchenko could have requested an extension of th eNo. 02-3971 Harchen ko v. INS , et al. 13

voluntary departure period from the district director, but h e failed to do so. He was placed on notice of this option and of the consequences for failing to do so in both the I J’s and the BIA’sinitial de cisions de nyi ng his request for

asy lum. Havingfailed to follow this procedure, Harchenko should not

now be allowe d to obtain relief he was o ff

ered earlier but decline d to acce

pt.

The other rationale offered by courts that have assumed the authority to reinstate voluntary de parture is a concern for judicial economy, but

this concern is similarly misplaced. In Umanzor-Alvarado

, the First Circuit noted that if “t he government

does n ot suggest it will present the district d irector with a ny other rea son f

or re fusin g re insta tement[, ]

. . . to r equi re th e pet ition er to[th en] apply to the district director to pass upon the matter would be pointless, for the director could not lawfully ref

use reinstatement.” 896 F.2d at 16. This reasoning “reflects both misplacement of the burden of persuasion a

nd app lication of the wrong standard for the dis trict director’s decision.” Castaneda , 23 F.3d at 158 2

. The district director has discretion to gr ant voluntary departure. It isnot legally ma ndated. “[E]ven if the alien has notdone anythi ng to render [himself] legally ineligible for reinstatement

or extension of

voluntary depar

ture, the district direct or always re

tains discretion to grant or deny the privilege.” Id.

Fi na ll y, it is worth no ting t he circumstances of Harchenko’ s app eal in this case. This is not a situation where an alien i s appeali ng the initial denial of his asylum application and asking this cour

t to reinstate the grant of voluntary departure inthe event that it decides to affirm the BIA. Nor is it a

case where a petitioner

has filed a motion se eking to

stay voluntary departure pending adjudication of his initial appeal. See Nwakanma v. Ashcr

oft , 352 F.3d

325, 327-28 (6th Cir. 2003). Inthis case, Harchenko filed an untimely motion to reopen and alternatively r

equested reinstatement of his earlier gr ant of voluntary depar

ture. It does not appear

that he r eques ted this form of r

elie f i n his initial appeal to this court. Instead, 14 Harchen ko v. INS , et al. No. 02-3971

he choseto file an

untimely motion to reopen. Harchenko has cited no author

ity f or the pr opositi on that this court may reinstat e his period of voluntary de parture in the absence of

a timely-filed

mo ti on t o re ope n. If

th e BIA lacks the

authority to reinstate voluntary de

parture when the proceed ings have not been reopened, then surely this court does as well.

IV.

For the foregoing reasons, the pe tition for rev iew o f the decision of the BIA is denie d.