Ismailov v. Reno

• Citation: 263 F.3d 851
• Decision Date: 15 June 2001
• Docket Number: No. 00-3239,00-3239
• Parties: (8th Cir. 2001) VLADIMIR ISMAILOV, PETITIONER, v. JANET RENO, <A HREF="#fr1-1" name="fn1-1">1 ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE; DORIS MEISSNER, <A HREF="#fr1-2" name="fn1-2">2 COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENTS. Submitted:
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 851

263 F.3d 851 (8th Cir. 2001) VLADIMIR ISMAILOV, PETITIONER,
v.
JANET RENO,¹ ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE; DORIS MEISSNER,² COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENTS. No. 00-3239 UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Submitted: June 15, 2001
Filed: August 30, 2001

Petition for Review of an Order of the Board of Immigration Appeals.

Page 852

Before Wollman, Chief Judge, Heaney, and Bowman, Circuit Judges.

Wollman, Chief Judge

Vladimir Ismailov petitions for review of an order of the Board of Immigration Appeals (the Board) denying his application for asylum in the United States. Because we conclude that we lack jurisdiction to review the Board's decision, we dismiss the petition.

I.

Ismailov, an ethnic Azerbaijani and a citizen of Russia, entered the United States on a nonimmigrant visa on January 28, 1998. After responding to an advertisement in a Russian-language newspaper in New York, Ismailov took a job in the St. Louis, Missouri, area. He contends that he began searching for a Russian-speaking attorney to assist him with an application for asylum soon after his arrival in United States. When this search proved unsuccessful, Ismailov's supervisor at work provided him with the name of a Russian-speaking attorney in New York, known only as "Leonid," who, it was said, would be able to assist him with his asylum application. Although Ismailov provided Leonid with the relevant documentation in support of his application and spoke with him over the telephone, no application for asylum was ever filed on Ismailov's behalf. Subsequently, both Leonid and Ismailov's supervisor disappeared, as did approximately

Page 853

$4,000 in "legal fees" that were deducted from Ismailov's paychecks.

After Ismailov moved to North Dakota, the Immigration and Naturalization Service initiated removal proceedings, alleging that he was deportable pursuant to 8 U.S.C. § 1227(a)(1)(B), for remaining in the United States longer than permitted, and pursuant to 8 U.S.C. § 1227(a)(1)(C)(i), for working without authorization. At a hearing on November 4, 1999, Ismailov admitted the factual allegations made by the INS, and an immigration judge found him removable on both charges. Ismailov then filed an application for asylum, see 8 U.S.C. § 1158, witholding of removal, see 8 U.S.C. § 1231(b)(3), and, in the alternative, voluntary departure, see 8 U.S.C. § 1229c. At a hearing on December 23, 1999, the immigration judge granted Ismailov the privilege of voluntary departure but denied his request for asylum and witholding of removal. Although the judge found Ismailov's testimony to be "generally credible," the judge concluded that Ismailov had failed to file his application for asylum within the one year of his arrival in the United States as required by 8 U.S.C. § 1158(a)(2)(B), that he failed to demonstrate extraordinary circumstances to excuse the delay pursuant to 8 U.S.C. § 1158(a)(2)(D), and that he failed to demonstrate that he was the victim of persecution in Russia.

Ismailov appealed the decision of the immigration judge to the Board, arguing that he had been a victim of persecution and was therefore eligible for witholding of removal and for asylum. Additionally, although he conceded that he had not filed his application for asylum within one year of his entry into the United States, he argued that the ineffective assistance of counsel that he had received from Leonid constituted extraordinary circumstances sufficient to excuse the delay pursuant to 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R. § 208.4(a)(5) ("'extraordinary circumstances'... shall refer to events or factors directly related to the failure to meet the 1-year deadline... [including]... [i]neffective assistance of counsel").

In an order dated August 22, 2000, the Board granted Ismailov's petition for witholding of removal, concluding, contrary to the findings of the immigration judge, that he had demonstrated that it was more likely than not that he would be persecuted because of his ethnic background and skin color if he returned to Russia. The Board dismissed Ismailov's appeal from the denial of his application for asylum, however, concurring with the immigration judge's determination that Ismailov had failed to demonstrate extraordinary circumstances with respect to his failure to file his application within one year of his arrival in the United States. The Board...