                     United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 00-3239
                                  ___________

Vladimir Ismailov,                      *
                                        *
              Petitioner,               *
                                        * Petition for Review of an
      v.                                * Order of the Board of
                                        * Immigration Appeals.
            1
Janet Reno, Attorney General, U.S.      *
                                      2
Department of Justice; Doris Meissner, *
Commissioner, Immigration and           *
Naturalization Service,                 *
                                        *
              Respondents.              *
                                  ___________

                            Submitted: June 15, 2001

                                 Filed: August 30, 2001
                                  ___________

Before WOLLMAN, Chief Judge, HEANEY, and BOWMAN, Circuit Judges.
                             ___________

WOLLMAN, Chief Judge.



      1
        On the court’s own motion, United States Attorney General John Ashcroft is
substituted for his predecessor Janet Reno. See Fed. R. App. P. 43(c)(2).
      2
       On the court’s own motion, Commissioner of the United States Immigration and
Naturalization Service James W. Ziglar is substituted for his predecessor Doris
Meissner. See Fed. R. App. P. 43(c)(2).
       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 $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 questioned
Ismailov’s diligence in attempting to re-contact Leonid and his failure to approach INS
himself, especially in light of his ability to speak some English and the fact that he was
aware of the availability of asylum in the United States. Moreover, with regard to the
issue of alleged ineffective assistance of counsel, the Board determined that Ismailov

                                            -3-
failed to satisfy the requirements of Matter of Lozada, 19 I&N Dec. 637, 639 (BIA
1988), and 8 C.F.R. § 208.4(a)(5)(iii), which require an alien asserting ineffective
assistance of counsel to (1) file an affidavit specifically describing counsel’s alleged
misconduct; (2) submit evidence that counsel was informed of the allegations of
misconduct; and (3) provide evidence that a complaint has been lodged with the
appropriate disciplinary authorities regarding the alleged misconduct.

                                           II.

       On petition for review, Ismailov argues solely that the Board erred by finding
that he failed to demonstrate extraordinary circumstances sufficient to excuse his failure
to apply for asylum within one year of his arrival in the United States. The threshold
question we must address is whether we have jurisdiction to review this contention.

      The following statutory provisions govern our disposition of this case:

      § 1158. Asylum

      (a) Authority to apply for asylum

            (1) In general

                 Any alien who is physically present in the United States or who
            arrives in the United States, . . . irrespective of such alien’s status,
            may apply for asylum in accordance with this section or, where
            applicable, section 1225(b) of this title.

            (2) Exceptions

                 ....




                                           -4-
                 (B) Time limit

                      Subject to subparagraph (D), paragraph (1) shall not apply
                 to an alien unless the alien demonstrates by clear and
                 convincing evidence that the application has been filed within
                 1 year after the date of the alien’s arrival in the United States.

                 (C) Previous asylum applications

                      Subject to subparagraph (D), paragraph (1) shall not apply
                 to an alien if the alien has previously applied for asylum and
                 had such application denied.

                 (D) Changed circumstances

                      An application for asylum of an alien may be considered,
                 notwithstanding subparagraphs (B) and (C), if the alien
                 demonstrates to the satisfaction of the Attorney General either
                 the existence of changed circumstances which materially affect
                 the applicant’s eligibility for asylum or extraordinary
                 circumstances relating to the delay in filing an application
                 within the period specified in subparagraph (B).

            (3) Limitation on judicial review

                 No court shall have jurisdiction to review any determination of
            the Attorney General under paragraph (2).


8 U.S.C. § 1158.

       The government contends that we do not have jurisdiction to review Ismailov’s
claim, arguing that § 1158(a)(3) precludes our review of the Board’s determination that
Ismailov failed to file his asylum application within one year of his arrival in the United
States as required by § 1158(a)(2)(B), and the Board’s conclusion that he failed to


                                           -5-
demonstrate extraordinary circumstances sufficient to excuse the delay pursuant to §
1158(a)(2)(D).

        As a general rule, only a showing of “clear and convincing evidence” is sufficient
to support a finding that Congress intended to preclude judicial review of an
administrative action. See Bd. of Governors of the Fed. Reserve Sys. v. MCorp Fin.
Inc., 502 U.S. 32, 44 (1991); see also INS v. St. Cyr, 121 S. Ct. 2271, 2278 (2001)
(“[f]or the INS to prevail it must overcome . . . the strong presumption in favor of
judicial review of administrative action”). This standard is not a rigid evidentiary test,
however, but rather “a useful reminder to courts that, where substantial doubt about the
congressional intent exists, the general presumption favoring judicial review of
administrative actions is controlling.” Block v. Cmty. Nutrition Inst., 467 U.S. 340,
349 (1984). This presumption does not control, however, where congressional intent
to preclude judicial review is “fairly discernible” in the detail of the particular
legislative scheme. Id. Stated otherwise, the presumption may be rebutted by specific
language that is a reliable indicator of congressional intent to preclude judicial review.
Id. at 349.

       Although Ismailov concedes that § 1158(a)(3) might be read in isolation to
preclude our review of his claim, he argues that we have jurisdiction under 8 U.S.C. §
1252(b)(4)(D), which provides that “the Attorney General’s discretionary judgment
whether to grant relief under section 1158(a) of this title shall be conclusive unless
manifestly contrary to the law and an abuse of discretion,” and pursuant to 8 U.S.C. §
1252(a)(2)(B)(ii), which provides that no court has jurisdiction to review “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.” Ismailov argues that because these
provision conflict with § 1158(a)(3), there is substantial doubt whether Congress
intended to bar review of his claim.


                                           -6-
       We disagree. Initially, we note that § 1252(a)(2)(B)(ii) simply precludes judicial
review of certain actions taken by the Attorney General; it need not be interpreted as
an affirmative grant of jurisdiction that conflicts with § 1158(a)(3). Moreover, it is
“fairly discernible” from the structure of the statute that Congress intended to preclude
judicial review in this case, see Block, 467 U.S. at 349, and that all three provisions in
question can be read to avoid conflict. The meaning of § 1158(a)(3) is clear: Congress
intended to bar judicial review of decisions made under § 1158(a)(2). In our view,
“[n]o court shall have jurisdiction to review any determination of the Attorney General
under paragraph (2)” is the sort of “specific language that is a reliable indicator of
congressional intent to preclude judicial review.” Id. The more general grant of
jurisdiction in § 1252(b)(4)(D) and arguably, in § 1252(a)(2)(B)(ii), can be interpreted
to extend only to decisions made pursuant to § 1158(a)(1). See Gonzalez v. Reno, 86
F. Supp. 2d 1167, 1178-79 (S.D. Fla. 2000).

       Furthermore, “the presumption favoring judicial review of administrative action
may be overcome by inferences of intent drawn from the statutory scheme as a whole.”
Block, 467 U.S. at 349. Here, the structure of the statute in question militates against
Ismailov’s argument. Although the statute provides, in general terms, for judicial
review of the decisions of the Attorney General, it includes several specific prohibitions
on judicial review. See, e.g. 8 U.S.C. § 1158(a)(3), 8 U.S.C. § 1158(b)(2)(D) (limiting
judicial review of the Attorney General’s determinations regarding the inadmissibility
of aliens implicated in terrorist activity). To adopt Ismailov’s argument would render
these provisions meaningless, a result that Congress cannot have intended.

       In sum, we conclude that § 1158(a)(3) clearly indicates congressional intent to
preclude judicial review of decisions made pursuant to § 1158(a)(2), notwithstanding
any other provision in the statute. Accordingly, we conclude that we have no
jurisdiction to address Ismailov’s claim that the Board erred by determining that he did
not demonstrate extraordinary circumstances related to his untimely application for
asylum.

                                           -7-
The petition for review is dismissed.

A true copy.

    Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                  -8-
