Sokolov v. Gonzales, 04-3218.

• Decision Date: 24 March 2006
• Docket Number: No. 04-3218.,04-3218.
• Parties: Roman SOKOLOV, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

442 F.3d 566

Roman SOKOLOV, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 04-3218.

United States Court of Appeals, Seventh Circuit.

Argued September 9, 2005.

Decided March 24, 2006.

John T. Gonnella (argued), Chicago, IL, for Petitioner.

George P. Katsivalis, Department of Homeland Security Office of the Chief Counsel, Chicago, IL, Richard M. Evans, David E. Dauenheimer, Kristin K. Edison (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before BAUER, POSNER, and WOOD, Circuit Judges.

WOOD, 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 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 Naturalization 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 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 possessed her ex-husband's identification card.

The IJ found Sokolov's explanation "incredible," noting that Ankova's testimony that she had no knowledge of 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 adjustment 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...