UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TSEGAW BELAY- GEBRU ,

Petitioner,

v.

IMMIGRATION & NATURALIZATION SERVICE,

Respondent.

Nos. 02-9509 & 02-9518

ORDER

Filed April 28, 2003

Before TACHA , Chief Circuit Judge, SEYMOUR and EBEL , Circuit Judges.

Respondent's motion to publish the order and judgment dated March 26, 2003, is granted. A copy of the published opinion is attached.

Entered for the Court,

Patrick Fisher, Jr., Clerk

By:	/s/ Steve Larson

Deputy Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TSEGAW BELAY-GEBRU,

Petitioner,

v.

IMMIGRATION & NATURALIZATION SERVICE,

Respondent.

Nos. 02-9509 & 02-9518

PETITION FOR REVIEW OF AN ORDER FROM THE BOARD OF IMMGRATION APPEALS

(No. A29-601-250)

Submitted on the briefs:

Mekre-Michael Ayele, Arlington, Virginia, on the brief for Petitioner.

Alison R. Drucker, Senior Litigation Counsel, and Margaret K. Taylor, Attorney, Office of Immigration Litigation, U.S. Department of Justice, Civil Division, Washington, DC, on the brief for Respondent.

Before TACHA, Chief Circuit Judge, SEYMOUR and EBEL, Circuit Judges.

TACHA, Chief Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

I.	Background	On January 29, 2001, the Board of Immigration Appeals ("BIA") denied Mr. Belay-Gebru's appeal from an immigration judge's order denying asylum and withholding of deportation. Mr. Belay-Gebru did not petition this court for review of the BIA's January 29, 2001, decision. Instead, Mr. Belay-Gebru filed an initial motion to reconsider with the BIA on March 2, 2001, which the BIA dismissed as time-barred on April 19, 2001. Mr. Belay-Gebru subsequently filed a second motion to reconsider,1 requesting that the BIA exercise its discretion to reopen and reconsider his case, pursuant to 8 C.F.R. § 1003.2(a). The BIA denied this request on May 17, 2001. This appeal followed.2

II. Discussion	We must first consider our jurisdiction to decide Mr. Belay-Gebru's appeal. Our jurisdictional inquiry in this case is governed by 8 U.S.C. § 1105a.3 Insofar as Mr. Belay-Gebru challenges (1) the BIA's denial of his appeal from the immigration judge's deportation order and (2) the BIA's denial of Mr. Belay- Gebru's initial motion to reconsider, we do not have jurisdiction to consider these claims because Mr. Belay-Gebru did not file a timely petition for review with this court. See Stone v. I.N.S., 514 U.S. 386, 406 (1995) (holding that the courts of appeal lack jurisdiction to review an untimely petition for review); see also Saadi v. I.N.S., 912 F.2d 428, 428 (10th Cir. 1990) (holding that the requirements of 8 U.S.C. § 1105a are mandatory and jurisdictional).

Under the transitional rules,4 a petition for review of a final order of exclusion or deportation must be filed with the court of appeals not later than thirty days after issuance of the final order. See Pub. L. No. 104-208, 110 Stat. 3009, § 309(c)(4)(A)-(D). Here, the BIA denied Mr. Belay-Gebru's appeal from the immigration judge's order on January 29, 2001. The thirty-day period for review began running on that date. See 8 C.F.R. § 1241.31 (order of deportation "become[s] final upon dismissal of an appeal by the [BIA]"). Mr. Belay-Gebru filed his petition for review with this court on February 22, 2002, well outside the thirty-day window. Regarding the BIA's denial of Mr. Belay-Gebru's initial motion to reconsider, the thirty-day period began running on April 19, 2001. Again, Mr. Belay-Gebru's present petition for review, filed with this court on February 22, 2002, is well outside the thirty-day period. Accordingly, we do not have jurisdiction to consider Mr. Belay-Gebru's challenge to either (1) the BIA's denial of his appeal from the immigration judge's order or (2) the BIA's denial of his initial motion to reconsider.5

Concerning the BIA's January 23, 2002, decision denying Mr. Belay-
Gebru's second motion to reconsider, we have no jurisdiction to consider petitioner's claim that the BIA should have exercised its sua sponte power to reopen his case. Ekimian v. I.N.S., 303 F.3d 1153, 1159 (9th Cir. 2002); see also Luis v. I.N.S., 196 F.3d 36, 40 (1st Cir. 1999) ("[T]he decision of the BIA whether to invoke its sua sponte authority is committed to its unfettered discretion. Therefore, the very nature of the claim renders it not subject to judicial review."); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir. 1999) ("[Section 3.2(a)] gives the BIA non-reviewable discretion to dismiss [petitioner's] claim.").

Under 8 U.S.C. § 1229a(c)(5), IIRIRA's codification of 8 C.F.R. § 1003.2(b)(2), a party has thirty days from the BIA's final administrative order of removal to file a motion to reconsider. Furthermore, a party may file only one motion to reconsider a decision that the alien is removable from the United States. 8 U.S.C. § 1229a(c)(5). By contrast, no statutory language authorizes the BIA to reconsider a deportation proceeding sua sponte. The only basis for reconsideration sua sponte is found in 8 C.F.R. § 1003.2(a). The text of this section provides that the BIA "may at any time . . . reconsider on its own motion any case in which it has rendered a decision." Id. (emphasis added). The regulation, however, provides no standards controlling or directing the BIA's decision whether to reconsider on its own motion. See Heckler v. Chaney, 470 U.S. 821, 830 (1985) ("[R]eview 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."). Because we have no meaningful standard against which to judge the BIA's exercise of its discretion, we hold that we do not have jurisdiction to review Mr. Belay-Gebru's claim that the BIA should have sua sponte reconsidered the immigration judge's order denying asylum and withholding of deportation.

III. Conclusion

Based on the foregoing, we DISMISS Mr. Belay-Gebru's petition.