YURI HARCHENKO, OLEKSANDR HARCHENKO, and TETIANA HARCHENKO v. IMMIGRATION AND NATURALIZATION SERVICE; JOHN ASHCROFT, Attorney General

*The Hono rable Danny C. Reeves, United States District Judge for
the Eastern District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0254P (6th Cir.)
File Name: 04a0254p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
YURI HARCHENKO,
OLEKSANDR HARCHENKO,
and TETIANA HARCHENKO,
Petitioners,
v.
IMMIGRATION AND
NATURALIZATION SERVICE;
JOHN ASHCROFT, Attorney
General,
Respondents.
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No. 02-3971
On Appeal from the Board of Immigration Appeals.
Nos. A73 123 548; A73 419 538; A73 418 915.
Submitted: June 9, 2004
Decided and Filed: July 30, 2004
Before: SILER and GIBBONS, Circuit Judges; REEVES,
District Judge.*
2 Harchenko v. INS, et al. No. 02-3971
_________________
COUNSEL
ON BRIEF: Richard T. Herman, RICHARD T. HERMAN
& ASSOCIATES, Cleveland, Ohio, for Petitioners. Audrey
B. Hemesath, UNITED STATES DEPARTMENT OF
JUSTICE, OFFICE OF IMMIGRATION LITIGATION,
Washington, D.C., for Respondents.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Petitioner Yuri
Harchenko appeals from the decision of the Board of
Immigration Appeals (“BIA”) denying his emergency motion
to reopen, or in the alternative, to reinstate voluntary
departure. Harchenko’s initial petition for asylum was denied
after a hearing on the merits on August 19, 1997. The
Immigration Judge (“IJ”) granted voluntary departure and
Harchenko appealed the denial of his application for asylum
to the BIA. The BIA dismissed his appeal and this court
affirmed, finding that the BIA’s denial of asylum and
withholding of deportation was supported by substantial
evidence in the administrative record. Prior to the issuance of
this court’s opinion in Harchenko’s first appeal, he filed a
motion to reopen based on an approved labor certification and
“deteriorating human rights conditions in the Ukraine,” and,
in the alternative, requested reinstatement of the voluntary
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.

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No. 02-3971 Harchenko v. INS, et al. 3
I.
Harchenko and his family are natives and citizens of the
Ukraine. They arrived in the United States in October 1994,
with a B-2 visitor visa that allowed them to stay until April
20, 1995. On December 9, 1994, Harchenko filed a petition
for asylum that included derivative petitions for his wife, Dr.
Tetiana Harchenko, and son, Oleksandr. On March 12, 1996,
the Immigration and Naturalization Service (“INS”) issued an
Order to Show Cause, charging Harchenko with deportability
for remaining in the United States for a time longer than
permitted.
Harchenko’s petition for asylum was denied initially on
August 19, 1997. The IJ noted that she had “some problems
with [Harchenko’s] credibility” because his administratively-
filed application alleged a fear of persecution on the basis of
his Jewish ethnicity, while his supplemental application
emphasized the likelihood that he would be threatened by
criminals if he returned to the Ukraine. The IJ nonetheless
assumed Harchenko’s claims were credible and concluded
that he had failed to establish a likelihood of present or future
persecution in the Ukraine based upon his identity as a
member of the Jewish faith, or as a Jewish national. An order
was entered denying Harchenko’s applications for asylum and
the withholding of deportation and granting voluntary
departure. The order noted that “if the [r]espondents fail to
depart when and as required, the privilege of voluntary
departure shall be withdrawn without further notice or
proceedings and the following order shall become
immediately effective: [r]espondents shall be deported from
the United States to the Ukraine on the charges contained in
the Orders to Show Cause.”
Although Harchenko filed a timely notice of appeal with
the BIA, his brief was not submitted on time and the BIA
declined to grant an extension. Harchenko v. INS, No. 00-
3789, 2001 WL 1429245, at *2 (6th Cir. Nov. 9, 2001)
(Harchenko I). The BIA later denied his motion to consider
4 Harchenko v. INS, et al. No. 02-3971
his untimely brief and affirmed the IJ’s decision. Id. at *1.
The BIA also reiterated the IJ’s earlier grant of voluntary
departure: “[T]he respondents are permitted to depart from the
United States voluntarily within 30 days from the date of this
order or any extension beyond that time as may be granted by
the district director; and in the event of failure to so depart,
the respondents shall be deported as provided in the [original]
order.” This court affirmed the BIA’s decision on November
9, 2001. Id.
Between the IJ’s initial ruling and the BIA’s decision to
affirm, Harchenko filed a Form I-140 application for labor
certification as a Licensed Physical Nurse at Broadview
Multi-Care facility in Parma, Ohio. This application was
approved by the INS on October 18, 2000. In light of the
approved labor certification, the Harchenkos argued to the
INS that they were eligible for an adjustment in status to
permanent residents upon the reopening of their deportation
proceedings. However, the INS advised them that they were
barred from seeking an adjustment of status for five years
pursuant to § 242B(e) of the Immigration and Naturalization
Act (“INA”), 8 U.S.C. § 1252b (1996), due to their failure to
leave the United States following the issuance of the BIA’s
May 2000 decision granting voluntary departure.
On October 30, 2001, the Harchenkos filed an emergency
motion to reopen and, in the alternative, to request
reinstatement of voluntary departure. The BIA concluded that
the motion to reopen was untimely and rejected Harchenko’s
argument that a final order of deportation did not exist until
the period of voluntary departure had expired. Harchenko had
argued that the period of voluntary departure was tolled while
he pursued an appeal of the BIA’s decision affirming the
denial of his application for asylum, but the BIA noted that
the regulatory deadline for the filing of a motion to reopen
runs from the date the IJ enters an order of deportation, and
not from the date the voluntary departure period expires. In
the alternative, Harchenko had argued that the BIA should
exercise its sua sponte authority to reopen the proceedings

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No. 02-3971 Harchenko v. INS, et al. 5
due to exceptional circumstances, but the BIA concluded that
Harchenko’s desire to seek an adjustment of status was not an
exceptional situation warranting reopening. Harchenko also
requested reopening on the basis of changed circumstances
arising in the Ukraine, but the BIA found that he had not
demonstrated such a “reasonable likelihood of success on the
merits so as to make it worthwhile to develop the issues
further at a full evidentiary hearing.” Finally, the BIA denied
Harchenko’s request that it reinstate the period of voluntary
departure, finding that it lacked the authority to do so because
it was denying his motion to reopen. He now appeals from
the order denying his motion to reopen and request for
voluntary departure.
II.
This court’s jurisdiction to review the BIA’s denial of a
motion to reopen deportation proceedings was altered by
adoption of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208,
110 Stat. 3009. Prior to 1996, parties who wished to appeal
any decision of the BIA filed a petition for review in the court
of appeals for the circuit in which the administrative
proceedings had been held. INA § 106(a) (formerly codified
at 8 U.S.C. § 1105(a)). Section 106 was repealed by the
IIRIRA and replaced with a new judicial review provision
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
the application of transitional rules in cases in which
deportation proceedings were pending before April 1, 1997,
and a final deportation order was filed after October 30, 1996.
IIRIRA § 309(c)(4). Because the BIA issued its decision on
July 31, 2002, and petitioners were placed in proceedings
before April 1, 1997, this case is governed by former § 106 of
the INA, as amended by the IIRIRA’s transitional rules.
6 Harchenko v. INS, et al. No. 02-3971
1The government argue s that this court should dismiss petitioners’
brief for failure to cite the administrative record in acco rdance with
Federal Rule of Appellate Procedure 28(a)(9)(A). Although petitioners’
brief is in fact bereft of citations to the administrative reco rd, the
government cites no authority supporting its argument that this court
should dismiss petitioners’ appeal on that basis. Many of the argum ents
asserted by p etitioners, with the exception of their argument for changed
country conditions in the Ukraine, are legal, and not factual in nature.
Hence, the lack of citations 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 complicate review of the materials included in the Joint
Append ix.
III.
Although Harchenko asserts eight issues in his brief,1 he is
in essence arguing just two points: (1) the BIA abused its
discretion in denying his motion to reopen, and (2) if this
court affirms the denial of his motion to reopen, it should
nevertheless reinstate his earlier grant of voluntary departure.
A. Motion to Reopen
Harchenko first challenges the BIA’s denial of his motion
to reopen. He argues that the BIA erred in concluding that his
motion to reopen was untimely, in deciding that he had failed
to demonstrate changed country conditions in the Ukraine, in
declining to exercise its sua sponte authority to reopen
proceedings, and in finding that it lacked the authority to
reinstate voluntary departure. This court reviews the BIA’s
denial of a motion to reopen for an abuse of discretion. INS
v. Doherty, 502 U.S. 314, 323-24 (1992). Legal issues are
reviewed de novo. See Mikhailevitch v. INS, 146 F.3d 384,
391 (6th Cir. 1998).
Under the rules in effect at the time the Harchenkos filed
their asylum petition, a motion to reopen in any case
previously the subject of a final decision by the BIA had to be
filed no later than 90 days after the date of the BIA’s decision.

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No. 02-3971 Harchenko v. INS, et al. 7
See 8 C.F.R. § 3.2(c)(2). However, the 90-day filing deadline
does not apply to motions to reopen (1) filed by aliens who
are deported in absentia; (2) filed by aliens seeking asylum or
withholding of deportation based on changed country
circumstances; (3) jointly filed by the alien and the INS; and
(4) filed by the INS where the basis of the motion is fraud in
the original proceeding or a crime that would support
termination of asylum. 8 C.F.R. § 3.2(c)(3)(i-iv). Because
they filed their motion to reopen well after the BIA’s May
2000 decision, the Harchenkos asked the INS to join in their
motion, but the INS declined on the grounds that the
Harchenkos were statutorily ineligible to seek an adjustment
of status until after June 22, 2005, due to their failure to
voluntarily depart within 30 days of the final order of
deportation. Before the BIA on their motion to reopen, the
Harchenkos argued that their voluntary departure period was
tolled until 30 days after this court issued its mandate in
Harchenko I and that their motion to reopen was therefore
timely. The BIA dismissed their argument, noting that the
regulatory deadline for the filing of a motion to reopen runs
from the date of the entry of the order of deportation, and not
from the date that the period of voluntary departure expires.
The BIA did not err in reaching this conclusion. See Matter
of Goolcharan, 23 I. & N. Dec. 5 (BIA 2001). This court has
previously noted that the time for filing a motion to reopen
can be equitably tolled, see Miculi v. Ashcroft, No. 03-3276,
2004 WL 886956, at *1 (6th Cir. Apr. 23, 2004) (citing
Iavorski v. INS, 232 F.3d 124, 127 (2d Cir. 2000)), but the
Harchenkos offer no explanation for their failure to file their
motion to reopen within the 90-day deadline established by
8 C.F.R. § 3.2(c)(2). Indeed, the Harchenkos do not
challenge the BIA’s determination that their motion to reopen
was untimely.
Instead, the Harchenkos argue that this court should reopen
their proceedings based on changed human rights conditions
in the Ukraine. Under 8 C.F.R. § 3.2(c)(3)(ii), there is no
time limitation for filing a motion to reopen to reapply for
asylum or withholding of deportation based on changed
8 Harchenko v. INS, et al. No. 02-3971
circumstances arising in the country of nationality if the
evidence of such conditions is material, was not available, and
could not have been discovered or presented at the previous
hearing. The BIA determined this exception was not
applicable to Harchenko’s motion to reopen because
Harchenko had not established the existence of materially
changed conditions in the Ukraine. The BIA did not abuse its
discretion in doing so. The party filing a motion to reopen
bears a heavy burden. See Doherty, 502 U.S. at 323. As the
Supreme Court has noted, “[g]ranting such motions too freely
will permit endless delay of deportation by aliens creative and
fertile enough to continuously produce new and material facts
sufficient to establish a prima facie case.” INS v. Wang, 450
U.S. 139, 143 n.5 (1981) (quotation omitted). As evidence of
changed human rights conditions in the Ukraine, Harchenko
offers a long list of newspaper articles and references to the
2001 State Department Country Reports. He fails to explain
how these developments would affect him if he is returned to
the Ukraine.
Alternatively, Harchenko requests that this court take
judicial notice of changed conditions in the Ukraine. As we
have previously noted, an alien filing a motion to reopen
based on changed country conditions “cannot rely on
speculative conclusions or mere assertions of fear of possible
persecution, but instead must offer reasonably specific
information showing a real threat of individual persecution.”
Dokic v. INS, No. 92-3592, 1993 WL 265166, *5 (6th Cir.
July 15, 1993) (citing Blanco-Comarribas v. INS, 830 F.2d
1039, 1041-42 (9th Cir. 1987)). “The feared persecution must
relate to the alien individually, not to the population
generally.” Id. Even if this court were to take judicial notice
of changed human rights conditions in the Ukraine, the
articles and reports offered by Harchenko fail to demonstrate
the “individualized” fear of persecution required for asylum.
Therefore, the BIA did not abuse its discretion when it
concluded that Harchenko had failed to show materially
changed conditions in the Ukraine such that his failure to file
a timely motion to reopen could be excused.

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

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

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No. 02-3971 Harchenko v. INS, et al. 13
voluntary departure period from the district director, but he
failed to do so. He was placed on notice of this option and of
the consequences for failing to do so in both the IJ’s and the
BIA’s initial decisions denying his request for asylum.
Having failed to follow this procedure, Harchenko should not
now be allowed to obtain relief he was offered earlier but
declined to accept.
The other rationale offered by courts that have assumed the
authority to reinstate voluntary departure is a concern for
judicial economy, but this concern is similarly misplaced. In
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,
14 Harchenko v. INS, et al. No. 02-3971
he chose to file an untimely motion to reopen. Harchenko has
cited no authority for the proposition that this court may
reinstate his period of voluntary departure in the absence of a
timely-filed motion to reopen. If the BIA lacks the authority
to reinstate voluntary departure when the proceedings have
not been reopened, then surely this court does as well.
IV.
For the foregoing reasons, the petition for review of the
decision of the BIA is denied.

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