VILTON PREKAJ, AGE PREKAJ, and LEORET PREKAJ v. IMMIGRATION AND NATURALIZATION SERVICE and JOHN ASHCROFT, Attorney General

*The Honorable Samuel H. Mays, Jr., United States District Judge for
the Western District of Tennessee, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0298P (6th Cir.)
File Name: 04a0298p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
VILTON PREKAJ, AGE PREKAJ,
and LEORET PREKAJ,
Petitioners,
v.
IMMIGRATION AND
NATURALIZATION SERVICE
and JOHN ASHCROFT,
Attorney General,
Respondents.
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No. 02-4462
On Petition for Review of an Order of the
Board of Immigration Appeals.
Nos. A75 310 054; A75 310 055; A75 310 056.
Argued: July 9, 2004
Decided and Filed: September 8, 2004
Before: KRUPANSKY and GILMAN, Circuit Judges;
MAYS, District Judge.*
2 Prekaj, et al. v. INS No. 02-4462
_________________
COUNSEL
ARGUED: David H. Paruch, Troy, Michigan, for
Petitioners. Susan K. Houser, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondents. ON BRIEF: David H. Paruch, Troy,
Michigan, for Petitioners. Marion E. Guyton, Richard M.
Evans, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondents.
_________________
OPINION
_________________
SAMUEL H. MAYS, Jr., District Judge. Petitioners seek
review of an Immigration Judge’s decision denying their
request for asylum, the Board of Immigration Appeals’
(“Board”) decision on April 11, 2002 affirming that decision
on a procedural ground, and the Board’s December 5, 2002
denial of their untimely motion to reopen. This court has
jurisdiction only over the December 5, 2002 decision.
Because the Board did not abuse its discretion by denying an
untimely motion to reopen, we DENY the petition for review.
I. BACKGROUND
Petitioners Vilton, Age, and Leoret Prekaj, a husband and
wife and their minor daughter, are natives of the former
Republic of Yugoslavia. Vilton Prekaj entered the United
States on December 20, 1993 as a non-immigrant visitor for
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

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

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

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No. 02-4462 Prekaj, et al. v. INS 7
3As in this case, the court considered only the B oard ’s decisio n in
denying the mo tion to re consider/reope 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.”)
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.

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