                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-4418
                                  ___________

Marekegn Asfaw Tamenut,               *
                                      *
             Petitioner,              *
                                      * Petition for Review of
       v.                             * an Order of the Board
                                      * of Immigration Appeals.
Alberto Gonzales, Attorney General    *
of the United States of America,      *
                                      *
             Respondent.              *
                                 ___________

                            Submitted: December 11, 2006
                               Filed: February 15, 2007
                                ___________

Before WOLLMAN, BEAM, and RILEY, Circuit Judges.
                          ___________

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, Tamenut 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 I-130, filed on Tamenut's behalf, on January
21, 2005, providing Tamenut 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.

                                         -2-
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 (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).1 "[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


      1
        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.

                                          -3-
Recio-Prado and Ghasemimehr 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 Tamenut'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.




                                          -4-
RILEY, Circuit Judge.

       I respectfully dissent. Tamenut appeals the Board of Immigration Appeals’
(BIA) refusal to exercise its discretionary authority under 8 C.F.R. § 1003.2(a) to
reopen sua sponte Tamenut’s proceedings. The language of § 1003.2(a)2 provides “no
meaningful standard against which to judge the agency’s exercise of discretion.”
Heckler v. Chaney, 470 U.S. 821, 830 (1985). Without any meaningful standard or
applicable law, the BIA’s authority to reopen proceedings sua sponte has been entirely
committed to the BIA’s discretion making the BIA’s decision “impossible to
evaluate . . . for abuse of discretion,” and thus it cannot be reviewed by the courts. Id.
(internal quotation marks omitted); see Ngure v. Ashcroft, 367 F.3d 975, 982 (8th Cir.
2004).

       Our circuit cases relied upon by the panel majority, Recio-Prado v. Gonzales,
456 F.3d 819 (8th Cir. 2006), and Ghasemimehr v. Gonzales, 427 F.3d 1160 (8th Cir.
2005) (per curiam), do not hold to the contrary. In both Recio-Prado and
Ghasemimehr, the court held the BIA had not abused its discretion in concluding the
petitioner had not met the petitioner’s burden under § 1003.2(c).3 Recio-Prado, 456
F.3d at 821-22; Ghasemimehr, 427 F.3d at 1162-63. In contrast to § 1003.2(a), the
language of § 1003.2(c) provides a meaningful standard against which to judge the
BIA’s decisions. The citations in Recio-Prado and Ghasemimehr to § 1003.2(a) are
clearly dicta because neither Recio-Prado nor Ghasemimehr concerned a motion to


      2
       “The Board may at any time reopen or reconsider on its own motion any case
in which it has rendered a decision.” 8 C.F.R. § 1003.2(a).
      3
        “A motion to reopen proceedings shall state the new facts that will be proven
at a hearing to be held if the motion is granted and shall be supported by affidavits or
other evidentiary material.” 8 C.F.R. § 1003.2(c)(1). “A motion to reopen
proceedings shall not be granted unless it appears to the Board that evidence sought
to be offered is material and was not available and could not have been discovered or
presented at the former hearing.” Id.

                                           -5-
reopen proceedings sua sponte under § 1003.2(a), and § 1003.2(a) was not a basis for
either decision. Therefore Recio-Prado and Ghasemimehr are not controlling. See
Wilson v. Zoellner, 114 F.3d 713, 721 n.4 (8th Cir. 1997) (noting a panel is bound to
follow Eighth Circuit precedent, not dicta).

       I conclude we lack jurisdiction over Tamenut’s § 1003.2(a) appeal. Because
the panel majority concludes our precedent dictates otherwise, I respectfully
recommend the en banc court consider this issue in order to bring the law of the
Eighth Circuit in accord with the precedent of the Supreme Court and the holdings of
ten of our sister circuits.4
                         ______________________________




      4
        Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006) (per curiam) (holding “a
decision of the BIA whether to reopen a case sua sponte under 8 C.F.R. § 1003.2(a)
is entirely discretionary and therefore beyond our review—in other words, we lack
jurisdiction to review the BIA’s decision not to reopen [the petitioner’s] immigration
proceedings sua sponte.”); accord Zhang v. Gonzales, 469 F.3d 51, 53 (1st Cir. 2006);
Doh v. Gonzales, 193 F. App’x 245, 245 (4th Cir. 2006) (per curiam) (unpublished);
Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004); Harchenko v. INS, 379
F.3d 405, 410-11 (6th Cir. 2004); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-
50 (5th Cir. 2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir. 2003); Calle-Vujiles
v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir. 2003); Ekimian v. INS, 303 F.3d 1153,
1159 (9th Cir. 2002); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir. 1999) (per
curiam).

                                         -6-
