Vasile v. Gonzales

• Decision Date: 09 August 2005
• Docket Number: No. 04-3337.,04-3337.
• Citation: 417 F.3d 766
• Parties: Gheorghe VASILE,<SMALL><SUP>*</SUP></SMALL> Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>**</SUP></SMALL> Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

417 F.3d 766

Gheorghe VASILE,^* Petitioner, v. Alberto R. GONZALES,^** Attorney General of the United States, Respondent.

No. 04-3337.

United States Court of Appeals, Seventh Circuit.

Argued May 4, 2005.

Decided August 9, 2005.

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

George P. Katsivalis, Department of Homeland Security Office of the District Counsel, Chicago, IL, Jacqueline R. Dryden (briefed) and James E. Grimes (argued), U.S. Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before RIPPLE, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

Gheorghe Vasile, a native and citizen of Romania, entered the United States without 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 proceedings, Vasile admitted the factual allegations contained in the NTA and conceded removability. Hoping to avoid that ultimate outcome, he requested that the Immigration Judge (IJ) 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 determined 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 "extraordinary 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 withholding 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.

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, 385 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, 414 F.3d 800, 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 determination that he failed to file his asylum claim within one year and its decision that he failed to qualify for an extension 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...