In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-1608

VALENTIN BOYKOV,

Petitioner,

v.

JOHN D. ASHCROFT,

Respondent.

____________

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A71-468-234

____________

ARGUED JUNE 9, 2004—DECIDED SEPTEMBER 1, 2004

____________

Before FLAUM, Chief Judge, and BAUER and EVANS,

Circuit Judges.

FLAUM, Chief Judge. Petitioner Valentin Boykov, a

citizen of Bulgaria, petitions for review of two orders of the

Board of Immigration Appeals (“BIA”), one rescinding its

order to reopen and remand his case to an immigration

judge, and the other affirming the immigration judge’s

decision denying his application for adjustment of status.

The Department of Homeland Security moves to dismiss

Boykov’s petitions for lack of jurisdiction. We conclude that

we have jurisdiction to review the order of the BIA that

rescinded its remand order, and further conclude that the

BIA did not abuse its discretion in issuing that order. In
2 No. 03-1608

1 As of February 2003, the INS ceased to exist. The Bureau of

Immigration and Customs Enforcement in the new U.S. Department

of Homeland Security now performs the immigration enforcement

function that was previously the responsibility of the INS.

regard to Boykov’s petition for review of the BIA’s order

denying his application for adjustment of status, we have

determined that this Court has no jurisdiction and grant

the Department of Homeland Security’s motion on that

ground.

I. Background

Boykov initially entered the United States on a nonimmigrant visa on June 11, 1990. Sometime thereafter, he

filed an application for asylum and withholding of deportation. These applications were denied by an immigration

judge, and the denials were upheld by the BIA and this

Court. See Boykov v. INS, 109 F.3d. 413 (7th Cir. 1997). The

immigration judge granted Boykov’s request for voluntary

departure, and Boykov departed from the United States on

September 28, 1997.

On January 8, 1998, Boykov was apprehended by the

Immigration and Naturalization Service (“INS”)1

 shortly

after he had reentered the United States from Mexico.

The INS initiated removal proceedings later that month,

alleging that Boykov was subject to removal for violating

§ 212(a)(6)(A)(i) of the Immigration and Naturalization Act

(“INA”), 8 U.S.C. § 1182(a)(6)(A)(i). Boykov again sought relief in the forms of asylum and withholding of removal.

Additionally, he applied for suspension of deportation under

§ 203 of the Nicaraguan Adjustment and Central American

Relief Act (“NACARA”), Pub. L. 105-110, 111 Stat. 2193,

2199 (1998), and adjustment of status under § 245(i) of the

INA, 8 U.S.C. § 1255(i).
No. 03-1608 3

An immigration judge held a hearing on Boykov’s applications for relief. On September 16, 1999, the immigration

judge issued a decision denying Boykov all forms of relief

and ordering Boykov deported to Bulgaria. In regard to

Boykov’s application for adjustment of status, the immigration judge denied relief for two reasons. First, the immigration judge noted that Boykov was statutorily ineligible for

adjustment of status because an immigrant visa was not

immediately available to him. See INA § 245(i)(2)(B), 8

U.S.C. § 1255(a) (conditioning eligibility for adjustment of

status on multiple prerequisites, including that the applicant demonstrate that “an immigrant visa is immediately

available to him at the time his application is filed”). Secondly, the immigration judge remarked that “[e]ven if the

respondent were eligible to apply for adjustment of status,

the court would find that he does not merit a grant of adjustment of status in the exercise of discretion.” See id.

(committing the decision to adjust the status of an alien to

the discretion of the Attorney General). Citing Boykov’s

repeated entries into the United States in disregard of the

immigration laws of the United States, Boykov’s violation

of his voluntary departure order, and Boykov’s repeated

attempts to “litigat[e] a highly implausible asylum claim,”

the immigration judge wrote that these adverse factors

would require the denial of Boykov’s application, even if an

immigrant visa had been available to Boykov.

Boykov appealed the immigration judge’s decision to the

BIA. While the appeal was pending, Boykov’s employer submitted a labor certification petition to the INS on Boykov’s

behalf. On January 25, 2001, the INS approved Boykov’s

immigrant visa petition. Several months later, Boykov filed

a motion to reopen his proceedings and remand his case to

the immigration judge, citing the approval of his immigrant

visa petition as grounds for remand. The INS did not

respond to the motion. On November 23, 2001, the BIA

ruled in favor of Boykov and remanded his case to the
4 No. 03-1608

immigration judge. Five days later, the INS submitted a

response to Boykov’s motion. The BIA refused to consider

the motion because it was untimely. In December, the INS

filed a motion for reconsideration with the BIA urging that,

notwithstanding the INS’s grant of an immigrant visa to

Boykov, there was no valid basis for remanding Boykov’s

case. The INS argued that the visa could not cure all of the

deficiencies that the immigration judge had indicated in

Boykov’s application for adjustment of status and that the

acquisition of the visa would not impact the immigration

judge’s discretionary determination that Boykov was ineligible for adjustment of status. The BIA agreed with the INS

and issued a February 15, 2002 order rescinding its earlier

remand order. The BIA stated that a “decision on the

respondent’s appeal will be forthcoming.” Boykov did not

petition for review of this order.

On February 14, 2003, the BIA issued a final order affirming without opinion the immigration judge’s September

16, 1999 decision. Boykov filed a petition for review in this

Court on March 7, 2003. Boykov’s petition requests that

this Court vacate the BIA’s denial of his motion to remand

his case. Additionally, Boykov requests that this Court find

him eligible as a matter of law for adjustment of status

pursuant to § 245(i) of the INA and remand his case to the

immigration judge for further proceedings.

II. Analysis

Before turning to the merits of Boykov’s appeal, we must

first address this Court’s jurisdiction over Boykov’s petition

for review. This Court has jurisdiction to review an order of

removal entered by the BIA if the petition for review is filed

not later than 30 days after the date of the final order of

removal. See 8 U.S.C. § 1252(b)(1). The BIA issued its final

order affirming the immigration judge’s order of removal on

February 14, 2003. Boykov petitioned this Court for review
No. 03-1608 5

on March 7, 2003; thus, Boykov’s petition for review of the

order of removal was timely filed under 8 U.S.C.

§ 1252(b)(1).

Although Boykov wishes this Court to review one of the

issues implicated by the February 14, 2003 final order of

deportation, he also petitions for review of the BIA’s February

15, 2002 order rescinding and vacating its prior remand

order (“February 15 order”). The government argues that

this Court has no subject matter jurisdiction to hear Boykov’s

petition for review of the February 15 order because Boykov

failed to file that petition within the thirty-day filing deadline

imposed by 8 U.S.C. § 1252(b)(1).

While Boykov delayed for over a year before petitioning

for review of the February 15 order, it does not necessarily

follow that the petition is barred by the § 1252(b)(1) filing

deadline. According to the text of § 1252(b)(1), the sole

trigger for the § 1252(b)(1) filing deadline is the entry of an

“order of removal.” The February 15 order did not contain

an order of removal or any other final disposition of Boykov’s

applications for relief. The order clarifies that the BIA had

not yet addressed the merits of Boykov’s case by stating

that a “decision on the respondent’s appeal will be forthcoming.” The February 15 order was merely interlocutory. It did

not implicate the § 1252(b)(1) filing deadline, and it preserved the jurisdiction of the BIA over Boykov’s case.

The government mistakenly relies on Stone v. INS, 514

U.S. 386 (1995), for the proposition that a petitioner must

file separate petitions for review for every BIA order that

will be eventually be consolidated on appeal to the appropriate circuit court of appeals. In Stone, the BIA issued a final

order of deportation on July 1991; the petitioner filed a

“Motion to Reopen and/or Reconsider” with the BIA in

August 1991; the BIA denied that motion in February 1993.

See id. at 389. In March 1993, Stone petitioned for judicial

review in the U.S. Court of Appeals for the Sixth Circuit
6 No. 03-1608

seeking review of both the July 1991 deportation order and

the February 1993 order denying reconsideration. See id.

The Supreme Court held that Stone’s timely filing of his

August 1991 motion to reconsider with the BIA did not toll

the 90-day filing period for judicial review of the July 1991

final order of deportation. Id. at 394. Reasoning that Congress

intended to “expedite both the initiation and the completion of

the judicial review” of orders of deportation, the Stone Court

concluded that to stay the running of the statutory period

for review of a deportation order during the pendency of a

motion for reconsideration before the BIA would be “at odds

with the congressional purpose.” Id. at 400.

Unlike Stone, Boykov did not delay filing a petition for

review in this Court after the BIA issued its final order of

deportation, and for that reason, the Stone rule has no relevance to Boykov’s case. It is not problematic that Boykov

filed a petition for review of the February 15 order after the

BIA issued its final order of deportation, because the

February 15 order was not ripe for review until the BIA

issued the final order of deportation. Indeed, until the BIA

affirmed the immigration judge’s order of deportation, it

was unclear whether the February 15 order would remain

in question: had the BIA reversed the immigration judge’s

deportation order and remanded for further proceedings,

the issues presented by the February 15 order would have

been rendered moot. Now that the BIA has issued a final

order of deportation, the February 15 order is properly

before this Court.

We now turn to the merits of Boykov’s petition for review

of the February 15 order. This Court reviews the BIA’s denial of a motion to remand for abuse of discretion. Pop v.

INS, 279 F.3d 457, 460 (7th Cir. 2001). Under this standard, the Board’s decision will “be upheld unless it was

made without a rational explanation, inexplicably departed

from established policies, or rested on an impermissible basis
No. 03-1608 7

such as invidious discrimination against a particular race

or group.” Mansour v. INS, 230 F.3d 902, 907 (7th Cir. 2000).

The BIA initially granted Boykov’s motion to reopen and

remand his case because Boykov had received an immigrant

visa and had therefore become prima facie eligible for

adjustment of status under § 245(i) of the INA, 8 U.S.C.

§ 1255(i). Perhaps because the INS had not yet responded

to Boykov’s motion, the BIA assumed that Boykov’s prima

facie eligibility would change the immigration judge’s analysis of Boykov’s application for adjustment of status. However,

when the BIA received the INS’s motion for reconsideration,

it was persuaded that the remand would be futile because

the immigration judge was likely to deny Boykov relief in

the exercise of its discretion, regardless of Boykov’s newfound

eligibility for relief. Indeed, in his order denying Boykov’s

application for adjustment of status, the immigration judge

remarked that “[e]ven if the respondent were eligible to

apply for adjustment of status, the court would find that he

does not merit a grant of adjustment of status in the exercise of discretion.” The immigration judge seized upon the

following factors adverse to Boykov’s application: Boykov

had entered the country with a preconceived intention to

remain until his resident worker status was approved and

an immigrant visa was available; Boykov had violated his

voluntary departure order; Boykov had litigated a “frivolous

petition for habeas corpus” following the entry of the

voluntary departure order; and Boykov had advanced a

“highly implausible asylum claim.” In light of the immigration judge’s finding that Boykov would not merit an

adjustment of status even if he had access to an immigration visa, the BIA concluded that the remand on the basis

of Boykov’s immigrant visa was inappropriate.

Boykov argues that the BIA’s decision to rescind the remand order was an abuse of the BIA’s discretion. In Boykov’s

view, the February 15 order does not adequately reweigh

the factors relied upon by the immigration judge in his
8 No. 03-1608

adverse discretionary finding. First, Boykov contends that,

had the BIA engaged in a more thorough analysis, it might

have found that the immigration judge erred in concluding

that he had violated his voluntary departure order. Boykov

argues that he complied with that order by voluntarily departing to Bulgaria; he argues that his reentry to the United

States three months thereafter is not relevant to the issue

of whether he complied with the order. Second, Boykov urges

that the February 15 order does not give sufficient weight

to his newly approved visa petition.

We conclude that the BIA did not abuse its discretion in

rescinding its remand order. While the February 15 order

does not contain a particularly lengthy analysis in support

of the BIA’s decision, the order does provide a rational basis

for the BIA’s rescission of the remand order: Boykov’s statutory eligibility for adjustment of status surmounted only

one of two deficiencies in his application cited by the

immigration judge. In its February 15 order, the BIA did

not need to address Boykov’s challenges to the merits of the

immigration judge’s adverse discretionary finding, as it

reserved its commentary on the merits of Boykov’s appeal

until a later date. Thus, we uphold the order as a proper

exercise of the BIA’s discretion.

Lastly, we turn to Boykov’s petition for review of the BIA’s

February 14, 2003 order affirming the immigration judge’s

denial of his application for adjustment of status under § 245

of the INA, 8 U.S.C. § 1255. The government contends that

§ 242(a)(2)(B)(i) of the INA, 8 U.S.C. § 1252(a)(2)(B)(i) deprives this Court of jurisdiction to review the BIA’s final

determination. That section provides that:

Notwithstanding any other provision of law, no court

shall have jurisdiction to review—

(i) any judgment regarding the granting of relief under

section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this

title, or
No. 03-1608 9

(ii) any other decision or action of the Attorney General

the authority for which is specified under this subchapter to be in the discretion of the Attorney General,

other than the granting of relief under section 1158(a)

of this title.

8 U.S.C. § 1252(a)(2)(B)(i). Section 1252(a)(2)(B)(i) precludes

our review of discretionary decisions to deny relief under

§ 1255. Iddir v. INS, 301 F.3d 492, 497 (7th Cir. 2002). The

immigration judge denied Boykov relief under § 1255 on

both discretionary and statutory eligibility grounds. However, because the BIA acknowledged in its February 15 order

that Boykov had gained statutory eligibility for adjustment

of status, the BIA’s denial of Boykov’s application for adjustment of status must have been solely on the basis of the

immigration judge’s discretionary finding. Therefore, because

Boykov is seeking review of a discretionary determination

under § 1255, we are precluded by 8 U.S.C. § 1252(a)(2)

(B)(i) from exercising jurisdiction over his petition.

III. Conclusion

For the foregoing reasons, the petition for review of the

order of the BIA rescinding its order to reopen and remand

Boykov’s case is DENIED, and the petition for review of the

order of the BIA denying Boykov’s application for adjustment of status is DISMISSED for lack of jurisdiction.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-1-04