Sardar v. Holder

11-2688
Sardar v. Holder
BIA
Vomacka, IJ
A088 425 415
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
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 3rd day of October, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _______________________________________
12
13 REHAN SARDAR,
14 Petitioner,
15
16 v. 11-2688
17 NAC
18 ERIC H. HOLDER JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: David A. Isaacson, New York, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Greg D. Mack,
28 Senior Litigation Counsel; Wendy
1 Benner-León, Trial Attorney, Office
2 of Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 decision of the Board of Immigration Appeals (“BIA”), it is
8 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
9 review is: (1) DISMISSED in part because the Court lacks
10 jurisdiction to review the agency’s determination that
11 Petitioner failed to establish changed circumstances
12 excusing the untimely filing of his asylum application; and
13 (2) DENIED in part because the agency did not err in finding
14 that Petitioner failed to demonstrate that he had filed his
15 asylum application within a reasonable time after having
16 discovered his prior counsel’s ineffectiveness.
17 Rehan Sardar, a native and citizen of Pakistan, seeks
18 review of a December 6, 2010, decision of the BIA affirming
19 the June 29, 2009, decision of an Immigration Judge (“IJ”),
20 which pretermitted his asylum application as untimely,
21 granted his application for withholding of removal, denied
22 his application for relief under the Convention Against
23 Torture (“CAT”), and remanded to the IJ to complete security
24 investigations, as well as a June 21, 2011, order of IJ Alan
25 Vomacka, which reaffirmed the pretermission of his asylum
2
1 application as untimely and granted his application for
2 withholding of removal. In re Rehan Sardar, No. A088 425
3 415 (B.I.A. Dec. 6, 2010), aff’g No. A088 425 415 (Immig.
4 Ct. N.Y. City June 29, 2009); & In re Rehan Sardar, No. A088
5 425 415 (Immig. Ct. N.Y. City June 21, 2011). We assume the
6 parties’ familiarity with the underlying facts and
7 procedural history in this case.
8 As an initial matter, Sardar does not dispute the
9 agency’s finding that his asylum application was untimely;
10 he challenges only the agency’s determination that he failed
11 to establish changed or extraordinary circumstances excusing
12 his untimely filing.
13 I. Changed Circumstances
14 Pursuant to 8 U.S.C. § 1158(a)(3), we are without
15 jurisdiction to review Sardar’s challenge to the agency’s
16 determination that Sardar failed to establish changed
17 circumstances excepting his application from the time
18 limitation. See 8 U.S.C. § 1158(a)(2)(D). While we retain
19 jurisdiction to review constitutional claims and “questions
20 of law,” see 8 U.S.C. § 1252(a)(2)(D), Sardar’s arguments,
21 though framed as questions of law, in effect, dispute only
22 the correctness of the agency’s purely factual determination
3
1 that Sardar failed to demonstrate the requisite change in
2 conditions in Pakistan. See 8 C.F.R. § 1208.4(a)(4)(A)
3 (providing that changed circumstances include “[c]hanges in
4 the applicant’s country conditions”); see also Xiao Ji Chen
5 v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006)
6 (stating that the Court “remain[s] deprived of jurisdiction
7 to review decisions under the INA when the petition for
8 review essentially disputes the correctness of an IJ’s fact-
9 finding or the wisdom of his exercise of discretion”).
10 II. Extraordinary Circumstances
11 Sardar also challenges the agency’s determination that
12 he failed to establish that the ineffective assistance of
13 his prior counsel constituted extraordinary circumstances
14 excusing the untimely filing of his asylum application.
15 Because Sardar’s ineffective assistance of counsel claim
16 contains a constitutional dimension––in that it implicates
17 his Fifth Amendment due process rights, see Rabiu v. INS, 41
18 F.3d 879, 882-83 (2d Cir. 1994)–– this Court retains
19 jurisdiction to consider the claim, see 8 U.S.C.
20 § 1252(a)(2)(D). However, the agency did not err in finding
21 that, even assuming that Sardar’s prior counsel’s
22 performance had been constitutionally deficient so as to
4
1 constitute an extraordinary circumstance that prevented
2 Sardar from timely filing his asylum application, Sardar
3 nevertheless failed to demonstrate that the two-year delay
4 in filing his application after learning of his counsel’s
5 ineffectiveness was reasonable, See 8 C.F.R. § 1208.4(a)(5)
6 (indicating that extraordinary circumstances “may excuse the
7 failure to file within the 1-year period as long as the
8 alien filed the [asylum] application within a reasonable
9 period given those circumstances”).
10 For the foregoing reasons, the petition for review is
11 DISMISSED in part and DENIED in part. As we have completed
12 our review, the stay of removal that the Court previously
13 granted in this petition is VACATED. Any pending request for
14 oral argument in this petition is DENIED in accordance with
15 Federal Rule of Appellate Procedure 34(a)(2), and Second
16 Circuit Local Rule 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
20
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