                       NOT RECOMMENDED FOR PUBLICATION
                              File Name: 06a0709n.06
                             Filed: September 29, 2006

                                        No. 05-3735

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


ANDREW S. HANGO,

       Petitioner,
                                                       On Appeal from the Board of
v.                                                     Immigration Appeals

ALBERTO R. GONZALES, Attorney General,

       Respondent.
                                             /

BEFORE:       MARTIN and RYAN, Circuit Judges; and MARBLEY, District Judge.*

       RYAN, Circuit Judge.         The petitioner, Andrew S. Hango, appeals an order of

the Board of Immigration Appeals (BIA) adopting and affirming an Immigration Judge’s (IJ)

order denying Hango’s motion to reopen his case. Because we find that the BIA did not

abuse its discretion, we DENY Hango’s petition for review.

                                                 I.

       Andrew S. Hango is a citizen of Tanzania, who entered the United States on a

student visa on September 16, 1997, but never attended any classes. On June 17, 1998,

he married a United States Citizen, Candice Hango, who petitioned for Hango to be

granted permanent residence. The Immigration and Naturalization Service (INS) denied

this application in May 2001, after finding that the parties “could not prove that the marriage



       *
         The Honorable Algenon L. Marbley, United States District Judge for the Southern
District of Ohio, sitting by designation.
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was legitimate.” Hango was further advised that he “appear[ed] to be removable” and

would be placed in deportation proceedings if he did not depart the United States

voluntarily. Hango did not depart, and a notice to appear was issued on September 4,

2001. On October 2, 2002, after an administrative hearing in Detroit, Michigan, in which

Hango and his attorney participated, an IJ determined that Hango was removable. The IJ

gave Hango until January 30, 2003, to voluntarily depart or an alternate order of removal

to Tanzania would take effect. The IJ also ordered that a bond of $500 be posted with the

INS before October 9, 2002, or the order of removal would take effect.

       Hango did not appeal the decision, but neither did he leave the United States. He

claims that he tried to post the bond on two occasions, but that no bond processor was

available. Meanwhile, on January 28, 2003, he remarried, this time to Twilla Hango, a

United States Citizen, and once again sought permanent residence on this basis. On

November 3, 2003, Hango filed an untimely motion to reopen his case, arguing that

“exceptional circumstances” made his case “eligible for [sua sponte] reopening” by the IJ.

The IJ denied the motion to reopen on November 28, 2003, after finding that Hango “failed

to file a timely motion to reopen.”

       Hango filed an appeal with the BIA on December 22, 2003, arguing that the IJ

abused her discretion in denying his motion to reopen. On February 20, 2004, the BIA

affirmed the IJ’s decision without issuing an opinion. On May 28, 2004, the BIA reissued

the decision, treating it as though it were entered on that date.

       Hango, meanwhile, was detained by immigration authorities, who obtained an

emergency travel document from Tanzania, and sought to remove him by commercial flight

from Newark, New Jersey, on May 12, 2004. Hango resisted and the airline refused to fly
(No. 05-3735)                                 -3-

him without an escort. While Hango was in New Jersey, he filed a pro se petition for a writ

of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the District

of New Jersey. He requested an immediate stay of the order of removal and a review of

the BIA’s and IJ’s denials of his motion to reopen. The district court initially dismissed the

petition, but after the REAL ID Act became law on May 12, 2005, the district court

transferred the case to this court pursuant to 8 U.S.C. § 1252(a)(5). Accordingly, Hango’s

§ 2241 habeas corpus petition was converted into a petition for review before this court.

       On June 6, 2005, several days after the district court ordered the case transferred

to this circuit, Hango filed a motion for the BIA to reopen and reconsider its May 28, 2004,

decision not to reopen or to exercise its “sua sponte” authority on the theory that he was

now eligible for adjustment of status due to his marriage to Twilla Hango. On June 30,

2005, the BIA denied the motion as “untimely” and refused to exercise its sua sponte

authority. Hango does not appear to have made any appeal from the BIA’s June 30, 2005,

determination.

                                              II.

       The denial of a motion to reopen is reviewed for an abuse of discretion. Haddad v.

Gonzales, 437 F.3d 515, 517 (6th Cir. 2006). This standard requires us to “‘decide

whether the denial of [the] motion to reopen . . . was made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible basis such

as invidious discrimination against a particular race or group.’” Id. (internal quotation marks

and citations omitted). Furthermore, a motion to reopen “must be filed within 90 days of

the date of entry of a final administrative order of removal, deportation, or exclusion.” 8

C.F.R. §§ 1003.23(b)(1) and 1003.2(a).
(No. 05-3735)                                 -4-

       In this case, the November 3, 2003, motion to reopen was filed with the IJ more than

a year after the original decision and well beyond the applicable 90-day time period.

Hango’s argument that this court should overturn the denial, which was based on

untimeliness, is unconvincing. He claims that the IJ “abused her discretion by failing to

reopen and conduct an evidentiary hearing” on the refusal of the INS to accept his bond

money and that the BIA erred by affirming this. Instead of addressing the regulatory

exceptions for an untimely petition under 8 C.F.R. §§ 1003.23(b)(4) or 1003.2(c)(3), Hango

relies on In re X-G-W, 22 I. & N. Dec. 71 (BIA 1998), where the BIA reopened an

immigration case even though the appropriate regulation for reopening—8 C.F.R. §

1003.2(c)(2)—offered no relief to the petitioner. In so doing, the BIA relied upon its “limited

discretionary powers” to act sua sponte. X-G-W, 22 I. & N. Dec. at 73.

       Hango’s reliance on this case is mistaken. Not only was the exception in X-G-W

specifically crafted for asylum claims based on population control policies, but the BIA has

since abandoned the holding. See In re G-C-L, 23 I. & N. Dec. 359, 361-62 (BIA 2002).

Further, X-G-W was an exercise of the BIA’s sua sponte authority, and this court refused

to review a similar matter in Harchenko v. INS, 379 F.3d 405, 410 (6th Cir. 2004), after

noting that “[t]he decision whether to invoke sua sponte authority is committed to the

unfettered discretion of the BIA.”

       In sum, we cannot find that the agency abused its discretion by dismissing such a

long overdue motion to reopen, nor can we interpose our will over that of the agency in the

exercise of its sua sponte authority.

       The second motion to reopen and reconsider, which Hango filed with the BIA on

June 6, 2005, was denied by the BIA on June 30, 2005, yet there is no indication in the
(No. 05-3735)                                  -5-

record that Hango appealed that decision to this court. Despite this, he argues that this

court is not “absolutely barred” from reviewing the merits of the June 30, 2005, BIA

decision because the joint appendix of this appeal includes the administrative record

related to his June 6, 2005, motion. We find no authority for this proposition. While the

Supreme Court has instructed that an alien who seeks review of a BIA petition in the courts

“may also seek agency reconsideration of the order” as well as court “review” of that

reconsideration, and that “[w]here the original petition is still before the court, the court shall

consolidate the two petitions,” the Court has steadfastly reaffirmed that such “review” must

be sought within the applicable time limit or a court of appeals lacks jurisdiction over the

matter. Stone v. INS, 514 U.S. 386, 405-06 (1995). This includes “two separate petitions

filed to review two separate final orders.” Id. at 405. In this case, Hango filed no appeal

of the BIA’s June 30, 2005, decision and made no indication that he sought review of it

other than to reference the agency decision in the merit arguments of his October 26,

2005, brief. As the applicable time limit of 30 days has long since expired, this court does

not have jurisdiction to review the June 30, 2005, order of the BIA. See Prekaj v. INS, 384

F.3d 265, 268 (6th Cir. 2004).

                                                III.

         For the above reasons, we DENY Andrew Hango’s petition for review of the BIA’s

order.
