Roman Sokolov v. ALBERTO R. GONZALES , Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3218
R OMAN S OKOLOV ,
Petitioner,
v.
A LBERTO R. G ONZALES , Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A78-643-107
____________
A RGUED S EPTEMBER 9, 2005—D ECIDED M ARCH 24, 2006
____________
Before B AUER , P OSNER , and W OOD , Circuit Judges.
W OOD , Circuit Judge. Roman Sokolov filed an asylum
application claiming that he was persecuted in Russia
because he is a practicing Baptist. The Immigration Judge
(IJ) denied the application, finding that Sokolov had failed
to meet his burden of showing past persecution and had
filed his claim too late. While his appeal to the Board of
Immigration Appeals (BIA) was pending, Sokolov married
a U.S. citizen. The BIA thus remanded the case to the IJ to
consider whether Sokolov could adjust his status based on
the marriage. The IJ thought not, exercising his discretion

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2 No. 04-3218
to deny Sokolov’s application primarily because of his
implausible explanation of a recent conviction for financial
identity theft. The BIA affirmed the denial of both claims.
We conclude that we lack jurisdiction over Sokolov’s claims
and therefore dismiss his petition for review.
I
Sokolov arrived in the United States on September 4,
1998, on a non-immigrant tourist visa. After obtaining an
extension of this visa, he was authorized to remain in the
United States until March 8, 2000. Sokolov waited to file
his asylum application until July 20, 2000. After this
application was filed, the then-Immigration and Naturaliza-
tion Service issued Sokolov a Notice to Appear, seeking to
remove him from the United States for overstaying his visa.
At his asylum hearing, Sokolov testified that he became a
practicing Baptist in 1993 and, as a result, was fired by his
employer and beaten and harassed by members of a
Russian nationalist political party. This was the only direct
evidence in the record supporting his claim, despite the fact
that his wife and many of his former co-parishioners, who
might have corroborated it, remained in Russia. Sokolov
claimed that the reason he filed his application after the
applicable one-year deadline was because of injuries he
sustained in a June 1999 car accident. In response to
questioning by the IJ, however, he acknowledged that he
was able to walk with crutches within weeks of the accident
and did not consider filing for asylum until several months
later, following a telephone conversation with his wife in
Russia.
The IJ denied Sokolov’s asylum application, explaining
that while “the harassment and treatment the respondent
endured in Russia apparently because of his religious
beliefs is reprehensible and unfair,” it did not meet the
standard of past persecution and that neither Sokolov’s

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No. 04-3218 3
testimony nor the State Department Country Report on
Russia “establish[es] a reasonable probability of future
persecution based upon [his] Baptist faith.” The IJ also
concluded that Sokolov failed to meet the one-year filing
requirement for asylum applications and did not qualify
under any of the exceptions to the timely filing rule, since
“it’s clear from the respondent’s testimony that it was not
the car accident that caused the delay in filing.”
Sokolov appealed to the BIA. While the appeal was
pending, Sokolov married Sylvia Ankova, a U.S. citizen, and
filed a motion with the BIA to remand his case so that he
could apply for adjustment of status based on the marriage.
(We assume, although the record is silent on this point, that
Sokolov and his wife in Russia had divorced between the
two hearings.) Noting that “the respondent now appears
prima facie eligible to adjust his status, in view of his
marriage to a United States citizen,” the BIA returned the
case to the IJ.
At the adjustment of status hearing, it came to light that
Sokolov recently had been convicted in Illinois state court
of financial identity theft, a misdemeanor, for having
obtained a state identification card in the name of his wife’s
ex-husband. When asked about this incident, Sokolov
explained that he had found an expired identification card
in the taxicab he was driving and, at the urging of his co-
workers and as a “bad joke,” had a new card made with his
own picture. Sokolov claimed that until he showed the new
card to Ankova, he was not aware that the expired card had
belonged to her ex-husband. In response to the IJ’s inquiry
regarding how the expired card had wound up in his cab in
the first place, Sokolov suggested that his wife must
accidentally have dropped it there. Ankova later testified,
however, that she had no knowledge of having ever pos-
sessed her ex-husband’s identification card.
The IJ found Sokolov’s explanation “incredible,” noting
that Ankova’s testimony that she had no knowledge of

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4 No. 04-3218
having possessed the card “suggests that the respondent
was not telling the truth.” The IJ commented that “[t]he
circumstances and underlying facts of the respondent’s act
suggest that he and his wife were aware that he had been
ordered to leave the United States and ‘concocted’ an idea
for the respondent to assume a new identity.” Based on
Sokolov’s “less than candid testimony and implausible
explanation for his conduct,” the IJ concluded that he did
not merit a favorable exercise of discretion to allow him to
adjust his status.
Sokolov appealed the IJ’s decision, which the BIA adopted
and affirmed. The Board explained that the IJ “correctly
held that the respondent’s asylum application must be
barred because he failed to file it within one year of his
arrival in the United States, and that the respondent failed
to qualify for an exception to the one year bar, since he
failed to timely file for asylum after his non-immigrant
status expired.” In addition, the BIA held that “based on the
evidence of record and the respondent’s testimony,” the IJ
“correctly denied the respondent’s application for adjust-
ment of status in the exercise of discretion.”
II
In his petition for review, Sokolov contends that the BIA’s
decision denying him asylum is not based on substantial
evidence and that the BIA abused its discretion in denying
his adjustment of status application based on the identity
theft conviction. The government contends that we lack
jurisdiction over both claims, arguing that 8 U.S.C. § 1158
bars judicial review of a BIA decision finding an asylum
application untimely, and 8 U.S.C. § 1252 bars our review
of a discretionary denial of an adjustment of status applica-
tion.
In general, an alien must file an asylum application
within one year of her arrival in the United States. 8 U.S.C.

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No. 04-3218 5
§ 1158(a)(2)(B). Notwithstanding this deadline, an applica-
tion may be deemed timely “if the alien demonstrates to the
satisfaction of the Attorney General either the existence of
changed circumstances which materially affect the appli-
cant’s eligibility for asylum or extraordinary circumstances
relating to the delay in filing an application within the
[required] period.” 8 U.S.C. § 1158(a)(2)(D). The statute is
clear, however, that these decisions are exclusively the
Attorney General’s to make; it specifically says that “[n]o
court shall have jurisdiction to review any determination of
the Attorney General” under these provisions. 8 U.S.C.
§ 1158(a)(3). Thus, if the BIA’s denial of an asylum applica-
tion rests on timeliness grounds, we lack jurisdiction. See
Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir. 2005) (“[T]his
jurisdictional bar [referring to § 1158(a)(3)], even as
qualified by the REAL ID Act, prevents us from reviewing
the BIA’s factual determination about when [a petitioner]
filed his asylum claim.”).
It is undisputed that Sokolov filed his asylum application
more than a year after entering the United States. Al-
though at his immigration hearing Sokolov contended that
injuries sustained in a car accident should excuse his late
filing, the IJ understandably rejected this argument based
on Sokolov’s own testimony that he did not even begin to
contemplate applying for asylum until months after the
accident. The BIA affirmed the IJ’s asylum decision solely
on this timeliness ground. We therefore lack jurisdiction
over Sokolov’s challenge to the denial of his asylum applica-
tion.
We turn next to Sokolov’s adjustment of status claim.
Here too, Congress has given the Attorney General a large
measure of unreviewable discretion. The statute permits
him to adjust an alien’s status, “in his discretion and under
such regulations as he may prescribe,” if the alien meets
specified criteria. 8 U.S.C. § 1255(a). A door-closing statute
precludes judicial review of “any judgment regarding the

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6 No. 04-3218
granting of relief under section . . . 1255,” 8 U.S.C.
§ 1252(a)(2)(B)(i), language we have interpreted as
“preclud[ing] our review of discretionary decisions to deny
relief under § 1255.” Boykov v. Ashcroft, 383 F.3d 526, 531
(7th Cir. 2004); see also Vasile, 417 F.3d at 768 (notwith-
standing changes wrought by the REAL ID Act, “discretion-
ary or factual determinations continue to fall outside the
jurisdiction of the court of appeals entertaining a petition
for review”). At the same time, we have held that the door-
closing statute remains “inapplicable to orders that violate
the Constitution,” Subhan v. Ashcroft, 383 F.3d 591, 595
(7th Cir. 2004), a point the government conceded at argu-
ment and that is reinforced by the REAL ID Act’s amend-
ment of § 1252, which specifically permits judicial review of
“constitutional claims or questions of law.” REAL ID Act of
2005, Pub. L. No. 109-13, 119 Stat. 231, 310-11 (2005),
amending 8 U.S.C. § 1252(a)(2). This, of course, does not
mean that we will “emasculate the door-closing statute by
equating arbitrary rulings to denials of due process,”
Subhan, 383 F.3d at 595-96; only egregious administrative
irregularities may amount to constitutional violations.
There were no such problems in this case. The IJ exer-
cised his discretion to deny Sokolov’s application for
adjustment of status primarily on the basis of his conviction
and his incredible explanation of the circumstances sur-
rounding it. As the IJ explained to Sokolov in rendering his
decision: “Your lack of honesty in court affects your eligibil-
ity for permanent residence in the exercise of discretion. So
while the crime itself does not make you ineligible I’m going
to deny your application based on discretion.” In affirming
the decision, the BIA explicitly approved this exercise of
discretion. These actions fall squarely within the ambit of
§ 1252, and we thus lack jurisdiction to review Sokolov’s
challenge to the denial of his application for adjustment of
status.

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No. 04-3218 7
III
Accordingly, the petition for review is D ISMISSED for want
of jurisdiction.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-24-06

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