*1 WOLLMAN, Before BEAM, and RILEY, Circuit Judges.
BEAM, Circuit Judge. I. BACKGROUND This is the second time Mr. Tamenut is before us. See Tamenut v. (8th Cir.2004) (Tamenut I). He entered U.S. in December 1996 and remained the time authorized. He application asylum on March 30, 1998, conceding that he subject but seeking asylum, withholding removal, protection Con- Against vention Torture. upon Based im- peachment evidence offered ment, and other inconsistencies revealed the immigration (IJ), all of denied applications 1999. Tamenut married a citizen on November 2002. The Board of Immigrаtion Appeals af- *2 2005, 21, On November citizen. to a U.S. on the IJ’s opinion firmed without untimely and the motion BIA the found March limited discretion- to exercise its declined to this I, аppealed Tamenut In Tamenut 1003.2(a) to sua section under ary power 2003 affirmance BIA’s court from or- Tamenut sponte reopen. rights process his that duе claiming der. allowed violated impeachment introduce to ment II. DISCUSSION Tamenut. notice to prior without with 22, 2004, disagreed we March On that in this case dispute is no There peti- his and denied argument process due re- motion to October Tamenut’s I, 1061.
tion. Tamenut that argues Tamenut untimely. open 2004, 7, Tam- I, June on After Tamenut re- that, BIA should hаve spite BIA reopen motion to enut filed sponte opened sua upon his adjust his status based seeking to that the de- BIA The citizen. to U.S. marriage discretion,] re- time[, “may at 20, August reopen on to this motion nied motion on its own or reconsider open to The motion time. 2004, out of as filed a decision.” it has in which rendered сase before on or filed have been reopen should have no that we argues government The 2003, days after 26, ninety June committed matters did 2003, Tamenut 28, order. Mаrch is, citing discretion, as this agency to 2004, order. 20, August appeal 830, Chaney, Heckler v. of Home- Department States The United (1985). Nu- L.Ed.2d Immi- Citizenship and Security U.S. land that have concluded circuits merous approved Services gration proceed- removal to BIA’s refusal be- 1-130, filed on Tamenut’s wife’s Form 1003.2(a) is under section ings spontе sua Tame- 21, 2005, providing half, January on re- that discretionary decision cannot classification appropriate nut with See, e.g., appeals. by the сourt of viewed permanent lawful eligible for making him v.Ali residency. Cir.2006); Enriquez-Alvarado (5th Cir.2004); Immigration Be- September In to Tamenut ordered 1000-01 Service Naturalization lay-Gebru v. Sep- Ethiopia to departure report for sought Again
tember slate, a clean writing on If were we permis- and was stay of removal we that conclude wе, too, would probably January until in the U.S. remain However, previ we have jurisdiction. another 2006. Tamenut deci a BIA’s challenges to ously reviewed 1003.2, on to 8 C.F.R. reopen, pursuant authori to exercise its sion not pre- that case arguing his under ty hardship considerations significant sented of discretion. for an section reopening that warranted Gonzales, 456 F.3d ad- Recio-Prado apply him to to allow the matter Cir.2006).1 will “[W]e marriage on his of status based justment BIA conducted if the acknowlеdge vires. dissenting opinion fails all, exercise only there, so under an it did of Recio-Prado in its discussion section established in of its own untime- the BIA was motion to circumstаnces Given these ultra thus and was ly section abuse of discretion if the denial was made Finally, Tamenut’s process due argu- without a explanation, rational inеxplicably ment is without merit. He claims that the departed policies, from established or rest- BIA fully failed to consider all factors and (such ed on an impermissiblе basis as surrounding circumstances this case and race).” Ghasemimehr 427 thus his process due rights were violated. *3 Cir.2005) (alteration There is support no for this claim. in omitted). original) (quotations Al- though the Redo-Prado and Ghasemi- III. CONCLUSION panels mehr apparently not faced deny the petition.
with a direct challenge to the exercise of jurisdiction, the clear inference from their RILEY,
reviews of the matters addressed
Judge.
indicates
jurisdiction
existence of the
now chal-
I respectfully dissent.
lenged by
government.
Given this
Board of Immigration Appeals’
precedent, we review the BIA’s decision
refusal to exercise its discretionary author-
for аbuse of discretion and leave resolution
ity
1003.2(a)
§
to reopen
jurisdictional
issue to the court en
sua sponte Tamenut’s proceedings. The
banc at the appropriate time.
1003.2(a)2
language
§of
provides “no
meaningful
standard against which to
Applying the abuse of discretion
judge
agency’s
exercise of discretion.”
standard, we find none. Tamenut
al
was
Heckler v. Chaney,
470 U.S.
ready
married March
(1985).
dent, not Company, Rawlings Sporting Goods over I conclude Corporation with Inc., a Delaware apрeal. Because Fenton, place of business precedent our majority concludes Missouri, Louis, County of State of St. recom- otherwise, respeсtfully I dictates Defendant-Appellant/Cross-Appellee. this issue consider banc court the en mend 05-4345, 06-1033. Nos. Eighth law of the bring the in order in accord Appeals, оf States Court United holdings of ten and the Supreme Eighth Circuit. circuits.4 our sister 13, 2006. Nov. Submitted: April
Rehearing Denied words, jurisdiction to we lack other state proceedings shall "A3. petition reopen [the hearing not to BIA’s decision proven be that will new facts sponte.”); and shall immigration is er's] if the motion be held (1st evidentiary Gonzales, 53 F.3d or other 469 supported Zhang affidavits v. be accord 1003.2(c)(1). "A Fed.Appx. 8 C.F.R. Cir.2006); 193 material.” Doh v. grant- shall reopen proceedings curiam) Cir.2006) (unpublished); tion to (4th (per 245 apрears to the Board it ed unless Ashcroft, 386 v. F.3d Infa nzon is offered material sought to be INS, Cir.2004); (10th v. Harchenko been have could not available and was not Cir.2004); (6th Enriquez- F.3d hear- at the former presented discovered 246, 249-50 Alvarado ing.” Id. Cir.2004); Ashcroft, 353 F.3d Pilch Cir.2003); Calle-Vujiles v. Ash (2d Cir. 4. Ali v. Cir.2003); croft, curiam) 2006) (holding "a (per 303 F.3d Ekimian case sua reopen a BIA whether Reno, Cir.2002); Anin v. entirely discre- is 8 C.F.R. curiam). review—in our tionary