           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2    Prekaj, et al. v. INS                     No. 02-4462
        ELECTRONIC CITATION: 2004 FED App. 0298P (6th Cir.)
                    File Name: 04a0298p.06                                                    _________________
                                                                                                   COUNSEL
UNITED STATES COURT OF APPEALS
                                                                           ARGUED:       David H. Paruch, Troy, Michigan, for
                  FOR THE SIXTH CIRCUIT                                    Petitioners.   Susan K. Houser, UNITED STATES
                    _________________                                      DEPARTMENT OF JUSTICE, Washington, D.C., for
                                                                           Respondents. ON BRIEF: David H. Paruch, Troy,
 VILTON PREKAJ, AGE PREKAJ, X                                              Michigan, for Petitioners. Marion E. Guyton, Richard M.
 and LEORET PREKAJ,               -                                        Evans, UNITED STATES DEPARTMENT OF JUSTICE,
                                                                           Washington, D.C., for Respondents.
                    Petitioners, -
                                  -   No. 02-4462
                                  -                                                           _________________
            v.                     >
                                  ,                                                               OPINION
                                  -                                                           _________________
 IMMIGRATION AND                  -
 NATURALIZATION SERVICE           -                                          SAMUEL H. MAYS, Jr., District Judge. Petitioners seek
 and JOHN ASHCROFT ,              -                                        review of an Immigration Judge’s decision denying their
 Attorney General,                -                                        request for asylum, the Board of Immigration Appeals’
                  Respondents. -                                           (“Board”) decision on April 11, 2002 affirming that decision
                                  -                                        on a procedural ground, and the Board’s December 5, 2002
                                 N                                         denial of their untimely motion to reopen. This court has
        On Petition for Review of an Order of the                          jurisdiction only over the December 5, 2002 decision.
               Board of Immigration Appeals.                               Because the Board did not abuse its discretion by denying an
      Nos. A75 310 054; A75 310 055; A75 310 056.                          untimely motion to reopen, we DENY the petition for review.

                       Argued: July 9, 2004                                                    I. BACKGROUND
                                                                             Petitioners Vilton, Age, and Leoret Prekaj, a husband and
            Decided and Filed: September 8, 2004                           wife and their minor daughter, are natives of the former
                                                                           Republic of Yugoslavia. Vilton Prekaj entered the United
 Before: KRUPANSKY and GILMAN, Circuit Judges;                             States on December 20, 1993 as a non-immigrant visitor for
              MAYS, District Judge.*                                       pleasure. His temporary visa expired on June 19, 1994. Age
                                                                           and Leoret Prekaj entered the United States without valid
                                                                           entry documents on August 8, 1995. On October 31, 1997,
                                                                           the Immigration and Naturalization Service (“INS”) served
    *
     The Honorable Samuel H. Mays, Jr., United States District Judge for
the Western District of Tennessee, sitting by designation.

                                   1
No. 02-4462                               Prekaj, et al. v. INS         3    4      Prekaj, et al. v. INS                       No. 02-4462

Vilton and Age Prekaj with Notices to Appear, charging them                  that failure, citing 8 C.F.R. § 3.1(d)(2)(i)(D), which
with removal under the Immigration and Nationality Act.1                     authorizes summary dismissal if the appellant indicates on the
                                                                             notice of appeal form “that he or she will file a brief or
  Petitioners sought asylum. After conducting hearings that                  statement in support of the appeal and, thereafter, does not
concluded on April 10, 2000, Immigration Judge Miriam K.                     file such brief or statement, or reasonably explain his or her
Mills issued a decision denying Petitioners relief on May 3,                 failure to do so, within the time set for filing.” The Board
2001. Petitioners filed an appeal with the Board on May 17,                  also stated, “[U]pon review of the record, we are not
2001. The Notice of Appeal form included a place for                         persuaded that the Immigration Judge’s ultimate resolution of
Petitioners to indicate whether they would “file a separate                  this case was in error.”
written brief or statement in addition to the ‘Reason(s) for
Appeal’ written above or accompanying this form.” The form                      On October 1, 2002, Petitioners filed a motion to reopen
also included the statement: “WARNING: Your appeal may                       their removal proceeding with the Board. The motion stated
be summarily dismissed if you indicate in item #6 that you                   that Petitioners “sought assistance of counsel and counsel was
will file a separate written brief or statement and, within the              unable to complete the briefing on time.” On December 5,
time set for filing, you fail to file the brief or statement and do          2002, the Board denied the motion to reopen on the basis that
not reasonably explain such failure.” The Notice of Appeal                   it was untimely. Its order stated:
was signed by Petitioners’ counsel, David Paruch. It stated,
as reasons for appeal, the same reasons raised in the present                    PER CURIAM. The motion to reopen has been filed out
petition.2                                                                       of time and will be denied. The final order in these
                                                                                 proceedings was entered by the Board on April 11, 2002.
  Although Petitioners checked the box indicating that they                      Pursuant to 8 C.F.R. § 3.2(c)(2), a motion to reopen in
would file a separate brief, they failed to do so. On April 11,                  any case previously the subject of a final decision by the
2002, the Board summarily dismissed the appeal because of                        Board must be filed no later than 90 days after the date of
                                                                                 that decision. In the instant case, a motion to reopen
                                                                                 would have been due on or before July 10, 2002. The
    1                                                                            record reflects, however, that the Board did not receive
     The INS ceased to exist as an independent agency on March 1,
2003, when its functions were tra nsferred to the Department of Homeland
                                                                                 the motion until October 1, 2002. The motion to reopen
Security under the H ome land S ecurity A ct of 20 02. The proper                was therefore filed out of time.
respondent is the Attorney General of the United States. See 8 U.S.C.
§1252 (b)(3).                                                                    In her motion, the respondent requests that the Board
                                                                                 consider her “late filed” brief. As the respondent has
    2
      Petitioners argued that the Immigration Judge abused her discretion        failed to present adequate reasons to support reopening
by (1) misconstruing testimony about incidents of persecution, (2) finding       and consideration of the brief, the motion will be denied.
that Petitioners had not experienced past persecution, (3) finding that
Petitioners do not reasonably fear persecution because of changed country    On December 27, 2002, Petitioners filed a petition seeking
conditions, and (4) denying P etitioners’ requests for asylum and
withholding of deportation and for relief under the Co nven tion against     review of the Board’s December 5th decision. This court has
Torture. They also a rgued that the delay be tween the conclusion of the     jurisdiction over the petition for review under 8 U.S.C.
hearings on April 10, 2000 and the date the decision was issued (May 3,      § 1252(b)(1).
2001) caused the Im migration Judge to forget portions of the testimo ny,
resulting in a denial of their due pro cess rights.
No. 02-4462                           Prekaj, et al. v. INS     5    6    Prekaj, et al. v. INS                       No. 02-4462

                        II. ANALYSIS                                 the merits of the underlying order of deportation, because the
                                                                     petition for review is not timely as to that order.”)
A. Scope of this Court’s Review
                                                                        The petition for judicial review, filed with this court
  Petitioners seek review of three decisions: (1) the                December 27, 2002, is timely only as to the Board’s
Immigration Judge’s May 3, 2001 decision denying asylum,             December 5, 2002 denial of Petitioners’ motion to reopen the
(2) the Board’s April 11, 2002 decision denying Petitioners’         case. We therefore limit our review to that decision, applying
appeal from the Immigration Judge’s decision, and (3) the            the abuse of discretion standard. See INS v. Doherty, 502
Board’s December 5, 2002 decision denying Petitioners’               U.S. 314, 324 (1992). The denial of a motion to reopen is a
motion to reopen the case. This court has jurisdiction to            final order subject to judicial review. Zheng v. Ashcroft, 89
consider only the third decision, the Board’s December 5,            Fed. Appx. 76, 77, 2004 WL 345601, at *1 (9th Cir. Feb. 24,
2002 decision declining to reopen the case.                          2004).
   First, we do not review the Immigration Judge’s decision.         B. The Board’s December 5 Decision Was Not an Abuse
There is “widespread consensus” that, in 8 U.S.C.                       of Discretion
§ 1252(a)(1), Congress has granted the courts power to
review only “final order[s]” of removal. Abdulai v. Ashcroft,           The only remaining issue is whether the Board abused its
239 F.3d 542, 548 (3d Cir. 2001) (quoting the statute).              discretion by denying Petitioners’ motion to reopen because
“Because an alien facing removal may appeal to the BIA as            it was untimely. The motion was filed almost three months
of right, and because the BIA has the power to conduct a de          outside the ninety-day window for filing such motions set
novo review of [Immigration Judge] decisions, there is no            forth in 8 C.F.R. § 3.2(c)(2) and later codified at 8 U.S.C.
‘final order’ until the BIA acts.” Id. at 548-49 (citing Castillo-   § 1229a(c)(6)(C)(i). See Ekimian v. INS, 303 F.3d 1153, 1156
Rodriguez v. INS, 929 F.2d 181, 183 (5th Cir. 1991)).                (9th Cir. 2002).
  Second, we do not review the Board’s April 11, 2002 denial           Petitioners argue that the Board “cannot summarily deny
of Petitioners’ appeal. The statute providing for judicial           reopening based on cursory and speculative determinations.”
review, 8 U.S.C. § 1252(b)(1), states that “[t]he petition for       (Petitioners’ Brief at 23.) They cite the Second Circuit case
review must be filed not later than 30 days after the date of        Zhao v. United States Department of Justice, 265 F.3d 83 (2d
the final order of removal.” That statutory time limit is “both      Cir. 2001), in support of their argument. In Zhao, the Second
mandatory and jurisdictional.” Martinez-Serrano v. INS, 94           Circuit reviewed the Board’s denial of a timely motion for
F.3d 1256, 1258 (9th Cir. 1996) (discussing previous version         reconsideration, which the Board had construed as a motion
of statute; declining to consider underlying denial of appeal        to reopen. The court stated that the Board abuses its
and considering only denial of untimely motion to reopen).           discretion where its decision “provides no rational
Petitioners did not seek judicial review of the April 11, 2002       explanation, inexplicably departs from established policies, is
decision within thirty days of its issuance. Therefore, the          devoid of any reasoning, or contains only summary or
court lacks jurisdiction to consider Petitioners’ objections to
that decision. See, e.g., Flores v. Ashcroft, 76 Fed. Appx.
177, 2003 WL 22203779, at *1 (9th Cir. Sept. 15, 2003) (“We
lack jurisdiction to consider Flores’s contentions regarding
No. 02-4462                                 Prekaj, et al. v. INS         7

conclusory statements.” Id. at 93 (citations omitted).3 The
court remanded the case to the Board, holding that its
decision was not adequately explained. Id. at 96-97.
   In this case, by contrast, the Board’s decision was neither
conclusory nor devoid of reasoning. It is undisputed that the
motion to reopen was filed outside the ninety-day period.
Rather than departing “inexplicably” from established
policies, the decision adheres to the long-established policy of
enforcing statutory and regulatory deadlines. Petitioners have
cited no authority to the effect that the Board abuses its
discretion by denying an untimely motion. It was not an
abuse of discretion for the Board to enforce the deadline. See
INS v. Abudu, 485 U.S. 94, 111 (1988) (“In passing on the
sufficiency of [a motion to reopen], the BIA is entitled to
attach significance to its untimeliness....”); Flores-Lima v.
Ashcroft, 97 Fed. Appx. 786, 787, 2004 WL 1197418, at *1
(9th Cir. May 10, 2004) (Board did not abuse its discretion in
denying motion to reopen on grounds of untimeliness).
                        III. CONCLUSION
 For the foregoing reasons, the petition for review is
DENIED.




    3
      As in this case, the court con sidered only the B oard ’s decisio n in
denying the mo tion to re consider/re ope n. Id. at 89-90 (stating that “the
appeal before us brings up for review only the Board ’s denial of the
motion to reconsider”; declining to consider Zhao’s assertions that he did
not receive due process at his hearing “[b]ecause we are precluded from
passing on the merits of the underlying exclusion proceedings.”)
