Marekegn Asfaw TAMENUT, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America, Respondent, 477 F.3d 580

BEAM, Circuit Judge. I. BACKGROUND This is the second time Mr. Tamenut is before us. See Tamenut v. Ashcroft, 361 F.3d 1060 (8th Cir.2004) (Tamenut I). He entered the U.S. in December 1996 and remained beyond the time authorized. He filed an application for asylum on March 30, 1998, conceding that he was subject to removal but seeking asylum, withholding of removal, and protection under the Convention Against Torture. Based upon impeachment evidence offered by the government, and other inconsistencies revealed before the immigration judge (IJ), the IJ denied all of Tamenut’s applications on October 22, 1999.

Tamenut married a U.S. citizen on November 27, 2002. The Board of Immigration Appeals (BIA) affirmed without opinion the IJ’s decision on March 28, 2003. In Tamenut I, Tamenut appealed to this court from the BIA’s 2003 affirmance claiming that his due process rights were violated when the IJ allowed the government to introduce the impeachment evidence without prior notice to Tamenut. On March 22, 2004, we disagreed with the due process argument and denied his petition. Tamenut I, 361 F.3d at 1061.

After Tamenut I, on June 7, 2004, Tam-enut filed a motion to reopen with the BIA seeking to adjust his status based upon his marriage to a U.S. citizen. The BIA denied this motion to reopen on August 20, 2004, as filed out of time. The motion to reopen should have been filed on or before June 26, 2003, ninety days after the BIA’s March 28, 2003, order. Tamenut did not appeal the August 20, 2004, BIA order. The United States Department of Homeland Security U.S.

Citizenship and Immigration Services approved Tamenut’s wife’s Form 1-130, filed on Tamenut’s behalf, on January 21, 2005, providing Tame-nut with the appropriate classification making him eligible for lawful permanent residency. In September 2005, Immigration and Naturalization Service ordered Tamenut to report for departure to Ethiopia on September 28, 2005. Again Tamenut sought stay of removal and was granted permission to remain in the U.S. until January 2006.

Tamenut filed another motion to reopen, pursuant to 8 C.F.R. § 1003.2, on October 4, 2005, arguing that his case presented significant hardship considerations that warranted sua sponte reopening of the matter to allow him to apply for adjustment of status based on his marriage to a U.S. citizen. On November 21, 2005, the BIA found the motion untimely and declined to exercise its limited discretionary power under

section 1003.2(

a) to sua sponte reopen. Tamenut appeals this order. II. DISCUSSION There is no dispute in this case that Tamenut’s October 4, 2005, motion to reopen was untimely. Tamenut argues that in spite of that, the BIA should have reopened sua sponte under 8 C.F.R. § 1003.2(a), which provides that the Board “may at any time[, at its discretion,] reopen or reconsider on its own motion any case in which it has rendered a decision.” The government argues that we have no jurisdiction to review matters committed to agency discretion, as this is, citing Heckler v.

Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). Numerous circuits have concluded that the BIA’s refusal to reopen removal proceedings sua sponte under

section 1003.2(

a) is a discretionary decision that cannot be reviewed by the court of appeals. See, e.g., Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir.2004); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003). If we were writing on a clean slate, we, too, probably would conclude that we lack jurisdiction. However, we have previously reviewed challenges to a BIA’s decision not to exercise its sua sponte authority to reopen removal proceedings under

section 1003.2(

a) for an abuse of discretion. Recio-Prado v. Gonzales, 456 F.3d 819, 821-22 (8th Cir.2006). “[W]e will find an abuse of discretion if the denial was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis (such as race).” Ghasemimehr v. Gonzales, 427 F.3d 1160, 1162 (8th Cir.2005) (alteration in original) (quotations omitted).

Although the Redo-Prado and Ghasemi-mehr panels were apparently not faced with a direct challenge to the exercise of jurisdiction, the clear inference from their reviews of the matters addressed indicates the existence of the jurisdiction now challenged by the government. Given this precedent, we review the BIA’s decision for abuse of discretion and leave resolution of the jurisdictional issue to the court en banc at the appropriate time. Applying the abuse of discretion standard, we find none.

Tamenut was already married in March 2003 when the BIA affirmed without opinion the IJ’s decision to deny Tamenut’s applications for asylum. And, Tamenut’s first motion to reopen in June 2004, although untimely, was based on his marriage and expected parental status, facts he now claims are new and exceptional. The October 2005 motion, recognizing its untimeliness, sought to reopen under the discretionary provision of

section 1003.2. There does not appear to be anything exceptional raised in this latest motion to reopen. And, notwithstanding our own view of the merits in this case, the BIA clearly recognized the situation set forth in Tamenut’s motion, acknowledged Tamenut’s sympathetic circumstances and refused to exercise its discretion. We find no abuse of that discretion and therefore deny Tame-nut’s petition. Finally, Tamenut’s due process argument is without merit. He claims that the BIA failed to fully consider all factors and circumstances surrounding this case and thus his due process rights were violated.

There is no support for this claim. III. CONCLUSION Accordingly, we deny the petition. . The dissenting opinion fails to acknowledge in its discussion of Recio-Prado that there, the motion to reopen before the BIA was untimely under

section 1003.2(

c) and was thus ultra vires. Accordingly, if the BIA conducted any review at all, it did so only under an exercise of its own discretion established in

section 1003.2(a). Given these circumstances we find ourselves bound by this precedent today whether or not we agree that we are without jurisdiction to review the agency's decision.