                           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rescinded its remand order, and further conclude that the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

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 nonim-
migrant visa on June 11, 1990. Sometime thereafter, he
filed an application for asylum and withholding of deporta-
tion. 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 re-
lief 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).



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.
No. 03-1608                                                3

  An immigration judge held a hearing on Boykov’s appli-
cations 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 immigra-
tion judge denied relief for two reasons. First, the immigra-
tion 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 appli-
cant demonstrate that “an immigrant visa is immediately
available to him at the time his application is filed”). Sec-
ondly, 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 ad-
justment 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 sub-
mitted 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 ineli-
gible 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 af-
firming 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 forthcom-
ing.” The February 15 order was merely interlocutory. It did
not implicate the § 1252(b)(1) filing deadline, and it pre-
served 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 appropri-
ate 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 rele-
vance 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 de-
nial of a motion to remand for abuse of discretion. Pop v.
INS, 279 F.3d 457, 460 (7th Cir. 2001). Under this stan-
dard, 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 anal-
ysis 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 ex-
ercise 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 immi-
gration judge’s finding that Boykov would not merit an
adjustment of status even if he had access to an immigra-
tion 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 re-
mand 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 de-
parting 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 statu-
tory 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) de-
prives 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 sub-
    chapter 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. How-
ever, 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 ad-
justment 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 adjust-
ment 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
