           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                      2    Harchenko v. INS, et al.                     No. 02-3971
        ELECTRONIC CITATION: 2004 FED App. 0254P (6th Cir.)
                    File Name: 04a0254p.06                                                  _________________
                                                                                                 COUNSEL
UNITED STATES COURT OF APPEALS
                                                                        ON BRIEF: Richard T. Herman, RICHARD T. HERMAN
                  FOR THE SIXTH CIRCUIT                                 & ASSOCIATES, Cleveland, Ohio, for Petitioners. Audrey
                    _________________                                   B. Hemesath, UNITED STATES DEPARTMENT OF
                                                                        JUSTICE, OFFICE OF IMMIGRATION LITIGATION,
 YURI HARCHENKO ,              X                                        Washington, D.C., for Respondents.
 OLEKSANDR HARCHENKO ,          -
                                -                                                           _________________
 and TETIANA HARCHENKO ,
                                -            No. 02-3971
                  Petitioners, -                                                                OPINION
                                 >                                                          _________________
                                ,
           v.                   -                                          JULIA SMITH GIBBONS, Circuit Judge. Petitioner Yuri
                                -                                       Harchenko appeals from the decision of the Board of
 IMMIGRATION AND                -                                       Immigration Appeals (“BIA”) denying his emergency motion
 NATURALIZATION SERVICE;        -                                       to reopen, or in the alternative, to reinstate voluntary
 JOHN ASHCROFT , Attorney       -                                       departure. Harchenko’s initial petition for asylum was denied
                                -                                       after a hearing on the merits on August 19, 1997. The
 General,
                                -                                       Immigration Judge (“IJ”) granted voluntary departure and
                Respondents. N                                          Harchenko appealed the denial of his application for asylum
    On Appeal from the Board of Immigration Appeals.                    to the BIA. The BIA dismissed his appeal and this court
     Nos. A73 123 548; A73 419 538; A73 418 915.                        affirmed, finding that the BIA’s denial of asylum and
                                                                        withholding of deportation was supported by substantial
                    Submitted: June 9, 2004                             evidence in the administrative record. Prior to the issuance of
                                                                        this court’s opinion in Harchenko’s first appeal, he filed a
               Decided and Filed: July 30, 2004                         motion to reopen based on an approved labor certification and
                                                                        “deteriorating human rights conditions in the Ukraine,” and,
Before: SILER and GIBBONS, Circuit Judges; REEVES,                      in the alternative, requested reinstatement of the voluntary
                   District Judge.*                                     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.
     The Hono rable Danny C. Reeves, United States District Judge for
the Eastern District of Kentucky, sitting by designation.

                                 1
No. 02-3971                     Harchenko v. INS, et al.       3    4    Harchenko v. INS, et al.                     No. 02-3971

                               I.                                   his untimely brief and affirmed the IJ’s decision. Id. at *1.
                                                                    The BIA also reiterated the IJ’s earlier grant of voluntary
  Harchenko and his family are natives and citizens of the          departure: “[T]he respondents are permitted to depart from the
Ukraine. They arrived in the United States in October 1994,         United States voluntarily within 30 days from the date of this
with a B-2 visitor visa that allowed them to stay until April       order or any extension beyond that time as may be granted by
20, 1995. On December 9, 1994, Harchenko filed a petition           the district director; and in the event of failure to so depart,
for asylum that included derivative petitions for his wife, Dr.     the respondents shall be deported as provided in the [original]
Tetiana Harchenko, and son, Oleksandr. On March 12, 1996,           order.” This court affirmed the BIA’s decision on November
the Immigration and Naturalization Service (“INS”) issued an        9, 2001. Id.
Order to Show Cause, charging Harchenko with deportability
for remaining in the United States for a time longer than             Between the IJ’s initial ruling and the BIA’s decision to
permitted.                                                          affirm, Harchenko filed a Form I-140 application for labor
                                                                    certification as a Licensed Physical Nurse at Broadview
   Harchenko’s petition for asylum was denied initially on          Multi-Care facility in Parma, Ohio. This application was
August 19, 1997. The IJ noted that she had “some problems           approved by the INS on October 18, 2000. In light of the
with [Harchenko’s] credibility” because his administratively-       approved labor certification, the Harchenkos argued to the
filed application alleged a fear of persecution on the basis of     INS that they were eligible for an adjustment in status to
his Jewish ethnicity, while his supplemental application            permanent residents upon the reopening of their deportation
emphasized the likelihood that he would be threatened by            proceedings. However, the INS advised them that they were
criminals if he returned to the Ukraine. The IJ nonetheless         barred from seeking an adjustment of status for five years
assumed Harchenko’s claims were credible and concluded              pursuant to § 242B(e) of the Immigration and Naturalization
that he had failed to establish a likelihood of present or future   Act (“INA”), 8 U.S.C. § 1252b (1996), due to their failure to
persecution in the Ukraine based upon his identity as a             leave the United States following the issuance of the BIA’s
member of the Jewish faith, or as a Jewish national. An order       May 2000 decision granting voluntary departure.
was entered denying Harchenko’s applications for asylum and
the withholding of deportation and granting voluntary                 On October 30, 2001, the Harchenkos filed an emergency
departure. The order noted that “if the [r]espondents fail to       motion to reopen and, in the alternative, to request
depart when and as required, the privilege of voluntary             reinstatement of voluntary departure. The BIA concluded that
departure shall be withdrawn without further notice or              the motion to reopen was untimely and rejected Harchenko’s
proceedings and the following order shall become                    argument that a final order of deportation did not exist until
immediately effective: [r]espondents shall be deported from         the period of voluntary departure had expired. Harchenko had
the United States to the Ukraine on the charges contained in        argued that the period of voluntary departure was tolled while
the Orders to Show Cause.”                                          he pursued an appeal of the BIA’s decision affirming the
                                                                    denial of his application for asylum, but the BIA noted that
  Although Harchenko filed a timely notice of appeal with           the regulatory deadline for the filing of a motion to reopen
the BIA, his brief was not submitted on time and the BIA            runs from the date the IJ enters an order of deportation, and
declined to grant an extension. Harchenko v. INS, No. 00-           not from the date the voluntary departure period expires. In
3789, 2001 WL 1429245, at *2 (6th Cir. Nov. 9, 2001)                the alternative, Harchenko had argued that the BIA should
(Harchenko I). The BIA later denied his motion to consider          exercise its sua sponte authority to reopen the proceedings
No. 02-3971                     Harchenko v. INS, et al.      5    6        Harchenko v. INS, et al.                            No. 02-3971

due to exceptional circumstances, but the BIA concluded that                                           III.
Harchenko’s desire to seek an adjustment of status was not an
exceptional situation warranting reopening. Harchenko also           Although Harchenko asserts eight issues in his brief,1 he is
requested reopening on the basis of changed circumstances          in essence arguing just two points: (1) the BIA abused its
arising in the Ukraine, but the BIA found that he had not          discretion in denying his motion to reopen, and (2) if this
demonstrated such a “reasonable likelihood of success on the       court affirms the denial of his motion to reopen, it should
merits so as to make it worthwhile to develop the issues           nevertheless reinstate his earlier grant of voluntary departure.
further at a full evidentiary hearing.” Finally, the BIA denied
Harchenko’s request that it reinstate the period of voluntary          A. Motion to Reopen
departure, finding that it lacked the authority to do so because
it was denying his motion to reopen. He now appeals from              Harchenko first challenges the BIA’s denial of his motion
the order denying his motion to reopen and request for             to reopen. He argues that the BIA erred in concluding that his
voluntary departure.                                               motion to reopen was untimely, in deciding that he had failed
                                                                   to demonstrate changed country conditions in the Ukraine, in
                              II.                                  declining to exercise its sua sponte authority to reopen
                                                                   proceedings, and in finding that it lacked the authority to
  This court’s jurisdiction to review the BIA’s denial of a        reinstate voluntary departure. This court reviews the BIA’s
motion to reopen deportation proceedings was altered by            denial of a motion to reopen for an abuse of discretion. INS
adoption of the Illegal Immigration Reform and Immigrant           v. Doherty, 502 U.S. 314, 323-24 (1992). Legal issues are
Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208,        reviewed de novo. See Mikhailevitch v. INS, 146 F.3d 384,
110 Stat. 3009. Prior to 1996, parties who wished to appeal        391 (6th Cir. 1998).
any decision of the BIA filed a petition for review in the court
of appeals for the circuit in which the administrative                Under the rules in effect at the time the Harchenkos filed
proceedings had been held. INA § 106(a) (formerly codified         their asylum petition, a motion to reopen in any case
at 8 U.S.C. § 1105(a)). Section 106 was repealed by the            previously the subject of a final decision by the BIA had to be
IIRIRA and replaced with a new judicial review provision           filed no later than 90 days after the date of the BIA’s decision.
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           1
                                                                          The government argue s that this court should dismiss petitioners’
the application of transitional rules in cases in which            brief for failure to cite the administrative record in acco rdance with
deportation proceedings were pending before April 1, 1997,         Federal Rule of Appellate Procedure 28(a)(9)(A). Although petitioners’
and a final deportation order was filed after October 30, 1996.    brief is in fact bereft of citations to the administrative reco rd, the
IIRIRA § 309(c)(4). Because the BIA issued its decision on         government cites no authority supporting its argument that this court
                                                                   should dismiss petitioners’ appeal on that basis. Many of the argum ents
July 31, 2002, and petitioners were placed in proceedings          asserted by p etitioners, with the exception of their argument for changed
before April 1, 1997, this case is governed by former § 106 of     country conditions in the Ukraine, are legal, and not factual in nature.
the INA, as amended by the IIRIRA’s transitional rules.            Hence, the lack of citation s to the administrative record is not nec essarily
                                                                   fatal to their arguments on appeal. We ca ution parties, however, that the
                                                                   court does not condone failures to comply with this rule. Such failures
                                                                   unnecessarily com plicate review of the materials included in the Joint
                                                                   Append ix.
No. 02-3971                    Harchenko v. INS, et al.      7    8    Harchenko v. INS, et al.                    No. 02-3971

See 8 C.F.R. § 3.2(c)(2). However, the 90-day filing deadline     circumstances arising in the country of nationality if the
does not apply to motions to reopen (1) filed by aliens who       evidence of such conditions is material, was not available, and
are deported in absentia; (2) filed by aliens seeking asylum or   could not have been discovered or presented at the previous
withholding of deportation based on changed country               hearing. The BIA determined this exception was not
circumstances; (3) jointly filed by the alien and the INS; and    applicable to Harchenko’s motion to reopen because
(4) filed by the INS where the basis of the motion is fraud in    Harchenko had not established the existence of materially
the original proceeding or a crime that would support             changed conditions in the Ukraine. The BIA did not abuse its
termination of asylum. 8 C.F.R. § 3.2(c)(3)(i-iv). Because        discretion in doing so. The party filing a motion to reopen
they filed their motion to reopen well after the BIA’s May        bears a heavy burden. See Doherty, 502 U.S. at 323. As the
2000 decision, the Harchenkos asked the INS to join in their      Supreme Court has noted, “[g]ranting such motions too freely
motion, but the INS declined on the grounds that the              will permit endless delay of deportation by aliens creative and
Harchenkos were statutorily ineligible to seek an adjustment      fertile enough to continuously produce new and material facts
of status until after June 22, 2005, due to their failure to      sufficient to establish a prima facie case.” INS v. Wang, 450
voluntarily depart within 30 days of the final order of           U.S. 139, 143 n.5 (1981) (quotation omitted). As evidence of
deportation. Before the BIA on their motion to reopen, the        changed human rights conditions in the Ukraine, Harchenko
Harchenkos argued that their voluntary departure period was       offers a long list of newspaper articles and references to the
tolled until 30 days after this court issued its mandate in       2001 State Department Country Reports. He fails to explain
Harchenko I and that their motion to reopen was therefore         how these developments would affect him if he is returned to
timely. The BIA dismissed their argument, noting that the         the Ukraine.
regulatory deadline for the filing of a motion to reopen runs
from the date of the entry of the order of deportation, and not      Alternatively, Harchenko requests that this court take
from the date that the period of voluntary departure expires.     judicial notice of changed conditions in the Ukraine. As we
The BIA did not err in reaching this conclusion. See Matter       have previously noted, an alien filing a motion to reopen
of Goolcharan, 23 I. & N. Dec. 5 (BIA 2001). This court has       based on changed country conditions “cannot rely on
previously noted that the time for filing a motion to reopen      speculative conclusions or mere assertions of fear of possible
can be equitably tolled, see Miculi v. Ashcroft, No. 03-3276,     persecution, but instead must offer reasonably specific
2004 WL 886956, at *1 (6th Cir. Apr. 23, 2004) (citing            information showing a real threat of individual persecution.”
Iavorski v. INS, 232 F.3d 124, 127 (2d Cir. 2000)), but the       Dokic v. INS, No. 92-3592, 1993 WL 265166, *5 (6th Cir.
Harchenkos offer no explanation for their failure to file their   July 15, 1993) (citing Blanco-Comarribas v. INS, 830 F.2d
motion to reopen within the 90-day deadline established by        1039, 1041-42 (9th Cir. 1987)). “The feared persecution must
8 C.F.R. § 3.2(c)(2). Indeed, the Harchenkos do not               relate to the alien individually, not to the population
challenge the BIA’s determination that their motion to reopen     generally.” Id. Even if this court were to take judicial notice
was untimely.                                                     of changed human rights conditions in the Ukraine, the
                                                                  articles and reports offered by Harchenko fail to demonstrate
  Instead, the Harchenkos argue that this court should reopen     the “individualized” fear of persecution required for asylum.
their proceedings based on changed human rights conditions        Therefore, the BIA did not abuse its discretion when it
in the Ukraine. Under 8 C.F.R. § 3.2(c)(3)(ii), there is no       concluded that Harchenko had failed to show materially
time limitation for filing a motion to reopen to reapply for      changed conditions in the Ukraine such that his failure to file
asylum or withholding of deportation based on changed             a timely motion to reopen could be excused.
No. 02-3971                    Harchenko v. INS, et al.      9    10    Harchenko v. INS, et al.                     No. 02-3971

   Harchenko also contends that the BIA abused its discretion        Finally, Harchenko argues that the BIA erred when it
by declining to exercise its sua sponte authority to reopen       concluded that it lacked the authority to reinstate his period of
proceedings under 8 C.F.R. § 3.2(a). The BIA noted that its       voluntary departure. This court reviews the BIA’s refusal to
discretionary power to reopen under § 3.2(a) is limited to        reinstate voluntary departure under an abuse of discretion
“exceptional situations” and concluded that Harchenko’s           standard. Yousif v. INS, 794 F.2d 236, 244 (6th Cir. 1986).
desire to seek an adjustment of status was not exceptional.       Voluntary departure is a form of discretionary relief that
The government contends that this court lacks jurisdiction to     allows an alien to leave without stigma or adverse
find that the BIA abused its discretion by failing to exercise    consequences of deportation. See Contreras-Aragon v. INS,
its discretionary authority to reopen Harchenko’s proceedings.    852 F.2d 1088, 1090 (9th Cir. 1988) (en banc). Under
We agree. The decision whether to invoke sua sponte               8 U.S.C. §§ 1254(e)(1) and 1252(b), the Attorney General has
authority is committed to the unfettered discretion of the BIA.   sole discretion to permit an alien under deportation
See 8 C.F.R. § 3.2(a). “Therefore, the very nature of the         proceedings to depart voluntarily. By regulation, this
claim renders it not subject to judicial review.” Luis v. INS,    authority is delegated to the INS district director, and, in
196 F.3d 36, 40 (1st Cir. 1999). See also Calle-Vujiles v.        limited circumstances, to immigration judges and to the BIA:
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         Authority to reinstate or extend the time within which to
1273, 1279 (11th Cir. 1999).                                        depart voluntarily specified initially by an immigration
                                                                    judge or the Board is within the sole jurisdiction of the
   As other courts have noted, the discretion permitted by          district director, except that an immigration judge or the
§ 3.2(a) is “so wide that even if the party moving has made         Board may reinstate voluntary departure in a deportation
out a prima facie case for relief, the BIA can deny a motion to     proceeding that has been reopened for a purpose other
reopen a deportation order. No language in the provision            than solely making an application for voluntary
requires the BIA to reopen a deportation proceeding under           departure.
any set of particular circumstances. Instead, the provision
merely provides the BIA the discretion to reopen immigration      8 C.F.R. § 1240.57 (emphasis added). As is clear from the
proceedings as it sees fit.” Anin, 188 F.3d at 1279 (citations    above language, the BIA’s authority to reinstate voluntary
and quotation omitted). This reasoning is based on the            departure is dependent on the reopening of a proceeding for
Supreme Court’s decision in Heckler v. Chaney, 470 U.S.           a purpose other than solely making an application for
821, 830 (1985), in which the court held that “review is not to   voluntary departure.       In this case, the BIA denied
be had if the statute is drawn so that a court would have no      Harchenko’s motion to reopen. Therefore, it lacked the
meaningful standard against which to judge the agency’s           authority to reinstate voluntary departure and clearly did not
exercise of discretion.” Section 3.2(a) provides no standard      abuse its discretion in denying this request.
by which to judge the agency’s exercise of discretion. It
allows the BIA to reopen proceedings in exceptional                 B. This Court’s Authority to Reinstate Voluntary
situations; it does not require the BIA to do so. As such, this        Departure
court is without jurisdiction to review the BIA’s decision
declining to exercise its discretion to reopen or reconsider        Harchenko alternatively asks this court to reinstate
Harchenko’s case.                                                 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     12    Harchenko v. INS, et al.                     No. 02-3971

extend or reinstate voluntary departure in order to punish him                   its discretion to withhold voluntary departure to deter
for seeking access to this court.                                                applicants from seeking judicial review of BIA decisions, or
                                                                                 (2) the [INS] does not suggest it will present the district
   This circuit has never before addressed the circumstances                     director with any other reason for refusing the reinstatement.”
under which we may reinstate voluntary departure in cases                        Id. (quotations omitted) (emphasis and alteration in original).
that are pre-IIRIRA and governed by the transitional rules.                      By contrast, four circuits held, prior to the IIRIRA, that the
Before adoption of the IIRIRA, the courts of appeals were                        statutory and regulatory language vesting authority to
divided on the issue of whether and under what circumstances                     reinstate voluntary departure solely within the discretion of
they had the authority to reinstate voluntary departure.2 The                    the Attorney General deprived federal courts of jurisdiction to
Ninth Circuit held that once voluntary departure was granted                     reinstate the voluntary departure period. See Nkacoang v.
by the BIA, the privilege “remain[ed] in effect throughout the                   INS, 83 F.3d 353, 355 (11th Cir. 1996); Castaneda v. INS, 23
period of [judicial] review and for whatever additional period                   F.3d 1576, 1580 (10th Cir. 1994); Alsheweikh v. INS, 990
the [Board] afforded the alien in the order under review.”                       F.2d 1025, 1027 (8th Cir. 1993); Kaczmarczyk v. INS, 933
Contreras-Aragon, 852 F.2d at 1092.3 The First and Fourth                        F.2d 588, 598 (7th Cir. 1991). These circuits take the better
Circuits took a more moderate position, retaining some                           approach.
authority over reinstatement or extension of voluntary
departure while at the same time acknowledging that “the                            Two primary concerns motivated courts that concluded
decision to reinstate or extend voluntary departures should                      they had the authority to reinstate voluntary departure pre-
usually be left to the discretion of the District Director, who                  IIRIRA: (1) access to appellate review, and (2) judicial and
is better suited to consider the factual prerequisites . . . .”                  administrative economy. Castaneda, 23 F.3d at 1581. These
Ramsay v. INS, 14 F.3d 206, 213 (4th Cir. 1994); see also                        courts were concerned that, “because the usual thirty-day
Umanzor-Alvarado v. INS, 896 F.2d 14, 16 (1st Cir. 1990).                        departure period permitted by the Board obviously cannot
These courts were concerned that under the Ninth Circuit’s                       cover the time expended by a petition for review, voluntary
original approach, “a court might reinstate voluntary                            departure is, in effect, conditioned on a waiver of judicial
departure even though, in the interim period between the                         review with respect to the underlying deportation order.” Id.
BIA’s and court of appeals’ decisions, the alien may have                        In short, they saw the legislative and regulatory scheme as
committed acts which would preclude him from eligibility for                     presenting aliens with a difficult choice: either elect to depart
voluntary departure . . . .” Ramsay, 14 F.3d at 213. They                        voluntarily and abandon any opportunity to overturn the
agreed that courts of appeals have the authority to reinstate                    deportation order, or choose to challenge the order and
voluntary departure, but only when “(1) the INS is wielding                      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
    2                                                                            the additional opportunity to depart voluntarily. On the
      It is clear that under the IIR IRA this court has no authority to review
discretionary grants and denials of voluntary departure. 8 U.S.C.                contrary, he retains precisely the same right to judicial review
§ 1229c(f) (“No court shall have jurisdiction over an appeal from denial         he would otherwise have had; it is only that his alternative to
of a req uest for an ord er of vo luntary departure.”).                          continued litigation has been made more attractive.” 23 F.3d
    3                                                                            at 1582. Furthermore, the choice is not as dire as the First
     In Zazue ta-Carrillo v. Ashcroft, 322 F.3d 11 66, 1172 -74 (9th Cir.        and Fourth Circuits predict. For example, in this case,
2003), the Ninth Circuit held that in light of the new provisions in the
IIRIR A, Contreras-Aragon is no longer go od law.                                Harchenko could have requested an extension of the
No. 02-3971                     Harchenko v. INS, et al.      13    14   Harchenko v. INS, et al.                    No. 02-3971

voluntary departure period from the district director, but he       he chose to file an untimely motion to reopen. Harchenko has
failed to do so. He was placed on notice of this option and of      cited no authority for the proposition that this court may
the consequences for failing to do so in both the IJ’s and the      reinstate his period of voluntary departure in the absence of a
BIA’s initial decisions denying his request for asylum.             timely-filed motion to reopen. If the BIA lacks the authority
Having failed to follow this procedure, Harchenko should not        to reinstate voluntary departure when the proceedings have
now be allowed to obtain relief he was offered earlier but          not been reopened, then surely this court does as well.
declined to accept.
                                                                                                 IV.
   The other rationale offered by courts that have assumed the
authority to reinstate voluntary departure is a concern for           For the foregoing reasons, the petition for review of the
judicial economy, but this concern is similarly misplaced. In       decision of the BIA is denied.
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,
