Vasile, Gheorghe v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3337
GHEORGHE VASILE,*
Petitioner,
v.
ALBERTO R. GONZALES,**
Attorney General of the United States,
Respondent.
____________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A97-119-546
____________
ARGUED MAY 4, 2005—DECIDED AUGUST 9, 2005
____________
Before RIPPLE, ROVNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Gheorghe Vasile, a native and
citizen of Romania, entered the United States without
*
Petitioner was initially listed in this court as Vasile Gheorghe,
but upon examination of the record, we have reversed the order of
his names to reflect the caption headings used at the Board of
Immigration Appeals.
**
Pursuant to FED. APP. R. 43(c), we have substituted Alberto R.
Gonzales, the present Attorney General of the United States, for
his predecessor in office.
2 No. 04-3337
inspection on or about August 1, 2000. Almost three years
later, on July 10, 2003, he filed an application for asylum,
claiming that he was persecuted on account of his Roma
ethnicity. On August 25, 2003, while his application was
pending, the Immigration and Naturalization Service issued
Vasile a Notice to Appear (NTA), charging him with
removability based on his presence in the United States
without being admitted or paroled. See INA § 212(a)(6)
(A)(i), 8 U.S.C. § 1182(a)(6)(i). During the removal proceed-
ings, Vasile admitted the factual allegations contained in
the NTA and conceded removability. Hoping to avoid that
ultimate outcome, he requested that the Immigration and
Nationality Act (INA) consider his previously filed asylum
application. In the alternative, Vasile applied for voluntary
departure under INA § 240B(b), 8 U.S.C. § 1229c.
Without addressing the merits of his claim, the IJ deter-
mined that Vasile was ineligible for asylum for two reasons:
first, he had filed his application more than one year after
his date of arrival in the United States; and second, he had
not demonstrated “changed circumstances” or “extraordi-
nary circumstances” that might justify an extension of the
deadline. See INA § 208(a)(2), 8 U.S.C. § 1158(a)(2). The IJ
recognized that Vasile was still eligible to request withhold-
ing of removal under INA § 241(b)(3), see 8 C.F.R.
§ 208.3(b), but the judge denied that relief because Vasile
had not demonstrated a clear probability of persecution if
he returned to Romania. Although Vasile did not request
protection under the Convention Against Torture (CAT),
adopted as federal law by section 2242(a) of the Foreign
Affairs Reform and Restructuring Act of 1988, 8 U.S.C.
§ 1231, the IJ nevertheless considered the potential CAT
claim and found that Vasile did not qualify for relief. The IJ
did, however, grant Vasile’s request for voluntary departure
and ordered him to depart the United States by June 21,
2004. The Board of Immigration Appeals (BIA) affirmed the
IJ’s decision in all respects.
No. 04-3337 3
Before this court, Vasile has abandoned his request for
withholding of removal and relief under the CAT by failing
to raise them in his opening brief. See Lin v. Ashcroft, 305
F.3d 748, 750 (7th Cir. 2004). His petition for review of the
BIA’s order challenges only the denial of his asylum claim.
He argues that the BIA should have reached the merits of
his claim because he was entitled to an extension of time to
file his petition under INA § 208(a)(2)(D). He contends that
there were extraordinary circumstances, namely that he
was suffering from post-traumatic stress disorder and
struggling with alcoholism, which prevented him from filing
his petition for asylum within the one-year period permitted
by law.
We conclude that we cannot review the BIA’s denial of his
asylum claim, even in light of the changes in the judicial
review provisions contained in the REAL ID Act of 2005,
Pub. L. No. 109-13, 119 Stat. 231, 310-11 (2005). That
statute, as we recently noted in Ramos v. Gonzales, No.
03-4050, 2005 WL 1618821, at *1 (7th Cir. July 12, 2005),
amended the judicial review provisions of INA § 242(a) to
allow review of constitutional claims and questions of law,
notwithstanding any other provision of the statute. See
REAL ID Act § 106(a)(1)(ii), amending 8 U.S.C. § 1252(a)(2).
Notwithstanding § 106(a) of the Act, however, discretionary
or factual determinations continue to fall outside the
jurisdiction of the court of appeals entertaining a petition
for review. See 8 U.S.C. § 1252(a)(2) (B)(ii); Gattem v.
Gonzales, 412 F.3d 758, 767 (7th Cir. 2005) (finding no
jurisdiction under 8 U.S.C. § 1252(a)(2)(C) to reach the IJ’s
discretionary refusal to continue a removal proceeding
pending the adjudication of an application for adjustment
of status once it was determined that the petitioner was
removable by reason of having committed an aggravated
felony). Perhaps Vasile would like to shoehorn his claim
into the “question of law” category, but it simply does not fit
there. In fact, he takes issue with the BIA’s factual determi-
4 No. 04-3337
nation that he failed to file his asylum claim within one
year and its decision that he failed to qualify for an exten-
sion of time.
Thus, just as in Gattem (and unlike Ramos, where the
petitioner was presenting constitutional due process
claims), Vasile must still contend with INA § 208(a)(3), 8
U.S.C. § 1158(a)(3), which says that “[n]o court shall have
jurisdiction to review any determination of the Attorney
General under [§ 208(a)(2)].” See Zaidi v. Ashcroft, 377 F.3d
678, 681 (7th Cir. 2004) (holding that the statute’s language
clearly evinces Congress’s intent to preclude judicial review
of agency action under § 208(a)(3)); Nigussie v. Ashcroft, 383
F.3d 531, 533 (7th Cir. 2004) (“We lack jurisdiction over the
BIA’s decision to bar, based on untimeliness, [petitioner’s]
asylum application.”).
It is easy enough to see why this jurisdictional bar, even
as qualified by the REAL ID Act, prevents us from review-
ing the BIA’s factual determination about when Vasile filed
his asylum claim. Vasile’s effort to show that he should
have received an extension because of his stress and
alcoholism problems is similarly beyond our reach. INA
§ 208(a)(2)(D) states that “[a]n application for asylum of an
alien may be considered . . . 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
[one-year] period.” Id. (emphasis added). Permissive
language that refers to demonstrating something to the
agency’s “satisfaction” is inherently discretionary. At least
one court has formally characterized it as such. See
Castellano-Chacon v. INS, 341 F.3d 533, 543-44 (6th Cir.
2003). We agree with the Sixth Circuit that the decision to
extend the deadline for filing an asylum application is a
discretionary one. Vasile’s claim therefore does not fall
within § 1252(a)(2) as amended by the REAL ID Act.
No. 04-3337 5
Because we do not have jurisdiction to review the BIA’s
timeliness determination, see 8 U.S.C. § 1158(a)(3), we are
unable to reach the merits of Vasile’s asylum claim.
Accordingly, the petition for review is DISMISSED for want
of jurisdiction.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-9-05