Nikishchenko v. Lynch , 614 F. App'x 3 ( 2015 )

12-373-ag
Nikishchenko v. Lynch
BIA
McManus, IJ
A088 436 455
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 5th day of June, two thousand fifteen.
PRESENT: AMALYA L. KEARSE,
ROSEMARY S. POOLER,
DEBRA ANN LIVINGSTON,
Circuit Judges.
___________________________________
OLEG FEDOROVICH NIKISHCHENKO,
Petitioner,
v. 12-373-ag
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.1
___________________________________
FOR PETITIONER: Cleland B. Welton II (Stephen A.
Broome, on the brief), Quinn Emanuel
Urquhart & Sullivan, LLP, New York,
N.Y.
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Loretta E. Lynch is automatically
substituted for former Attorney General Eric H. Holder, Jr.
FOR RESPONDENT: Channah F. Norman, Trial Attorney
(Stuart F. Delery, Assistant
Attorney General, John S. Hogan,
Senior Litigation Counsel, on the
brief), Office of Immigration
Litigation, Civil Division, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner, Oleg Fedorovich Nikishchenko, a native of
the Soviet Union and citizen of Ukraine, seeks review of a
January 12, 2012 decision of the BIA affirming the December
16, 2010 decision of an Immigration Judge (“IJ”),
pretermitting his asylum application as untimely. In re Oleg
Fedorovich Nikishchenko, No. A088 436 455 (B.I.A. Jan. 12,
2012), aff’g No. A088 436 455 (Immig. Ct. N.Y. City Dec. 16,
2010). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
Nikishchenko challenges the agency’s denial of his
asylum application as filed more than one year after his
entry into the United States. See 8 U.S.C. § 1158(a)(2)(B).
2
He argues that his 2009 application should be excepted from
the one-year filing deadline because, in 1997, an attorney
misadvised him that he was ineligible for asylum because his
tourist visa had expired, and he did not discover the error
until he obtained pro bono counsel to defend him in the 2009
removal proceedings. Ineffective assistance of counsel is an
“extraordinary circumstance” excusing the one-year deadline
“as long as the alien filed the application within a
reasonable period given those circumstances.” 8 C.F.R.
§ 1208.4(a)(5). Nikishchenko argues that the agency failed
to apply the correct legal standard in concluding that his
application did not meet this requirement.
Although we generally lack jurisdiction to review the
pretermission of an asylum application as untimely, 8 U.S.C.
§ 1158(a)(3), whether the agency applied the correct legal
standard in determining timeliness raises a question of law
over which we retain jurisdiction, id. § 1252(a)(2)(D); Xiao
Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.
2006). We review this question of law de novo. Shi Jie Ge v.
Holder, 588 F.3d 90, 93-95 (2d Cir. 2009).
The agency determined that Nikishchenko’s application
was untimely because he had not demonstrated due diligence
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in discovering the attorney’s error and in applying for
asylum. In support of this finding, the BIA cited Jian Hua
Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007), and Cekic v.
INS, 435 F.3d 167, 170 (2d Cir. 2006). Nikishchenko is
correct that these cases, and the due diligence standard
they employ, are related not to the reasonable-period
standard, but to the equitable exception for untimely
motions to reopen. While it is true that the former standard
derived from equity principles, and the latter from
regulation, both address whether it is reasonable to expect
that an alien should have discovered and raised his
ineffective assistance claim earlier. See Iavorski v. U.S.
INS, 232 F.3d 124, 134 (2d Cir. 2000) (explaining that
equitable tolling is applied until error should have been
discovered by a reasonable person); Asylum Procedures, 62
Fed. Reg. 10312, 10316 (Mar. 6, 1997) (stating that the
alien has the burden of establishing that the application
would have been timely filed “but for” the extraordinary
circumstances and requiring that an alien who meets the
extraordinary circumstance criteria file the application
“within a reasonable time period given those circumstances”
(internal quotation marks omitted)). Remand is therefore
4
unnecessary to correct the error because it is clear that
the agency determined that Nikishchenko’s filing delay was
unreasonable. See Alam v. Gonzales, 438 F.3d 184, 187 (2d
Cir. 2006) (declining to remand “where there is no realistic
possibility that, absent the errors, the IJ or BIA would
have reached a different conclusion” (internal quotation
marks omitted)).
Our analysis ends here because our jurisdiction is
limited to questions of law. Despite Nikishchenko’s
invitation to determine the reasonableness of his delay,
that determination is factual and not subject to review. See
8 U.S.C. §§ 1158(a)(3), 1252(a)(2) (excluding factual
findings from review). Contrary to his argument that the
agency created a new rule requiring misadvised aliens to
seek second opinions, the agency merely found it
unreasonable that he would not attempt to seek counsel in
the twelve years prior to the onset of proceedings to pursue
any immigration relief, and thereby discover his attorney’s
error. Nikishchenko has therefore failed to identify any
error of law subject to further review.
5
We have considered all of Nikishchenko’s contentions
that are properly before us and have found them to be
without merit. For the foregoing reasons, the petition for
review is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6