Arias-Chupina v. Holder

11-2606
Arias-Chupina v. Holder
BIA
A079 567 758
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 18th day of September, two thousand twelve.
5
6 PRESENT:
7 ROBERT D. SACK,
8 PETER W. HALL,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 JOSE ENRIQUE ARIAS-CHUPINA,
14 Petitioner,
15
16 v. 11-2606
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Anne Pilsbury, Brooklyn, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Anthony W.
27 Norwood, Senior Litigation Counsel;
28 Genevieve Holm, Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED, that the petition for review
5 is DENIED.
6 Petitioner Jose Enrique Arias-Chupina, a native and
7 citizen of Guatemala, seeks review of January 24, 2008, and
8 June 13, 2008, orders of the BIA, affirming, initially and
9 on reconsideration, the September 6, 2005, decision of
10 Immigration Judge (“IJ”) Helen Sichel, which pretermitted
11 his application for asylum as untimely. In re Jose Enrique
12 Arias Chupina, No. A079 567 758 (B.I.A. Jan. 24, 2008, June
13 13, 2008), aff’g No. A079 567 758 (Immig. Ct. N.Y. City
14 Sept. 6, 2005). We assume the parties’ familiarity with the
15 underlying facts and procedural history of this case.
16 Arias-Chupina challenges only the pretermission of his
17 asylum application. We have reviewed the decision of the IJ
18 as supplemented by the BIA. See Yan Chen v. Gonzales, 417
19 F.3d 268, 271 (2d Cir. 2005). While we generally lack
20 jurisdiction to consider the agency’s pretermission of an
21 asylum application as well as its determination that an
22 alien failed to demonstrate “extraordinary circumstances”
23 for his failure to timely file, see 8 U.S.C. § 1158(a)(3);
2
1 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 330 (2d
2 Cir. 2006), we retain jurisdiction to review constitutional
3 claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D).
4 Arias-Chupina’s argument that 8 C.F.R. § 1208.4(a)(5)(iii),
5 which sets forth the “extraordinary circumstances” exception
6 to the one-year filing requirement for ineffective
7 assistance of counsel, does not apply to him because his
8 application was prepared by a non-attorney raises a question
9 of law over which we have jurisdiction.
10 Arias-Chupina concedes that his application was
11 untimely and that in order to be eligible to apply for
12 asylum he was first required to establish that
13 “extraordinary circumstances” prevented his timely filing.
14 He argues that he met this standard, and that the agency
15 violated his due process rights by requiring him to satisfy
16 the requirements for ineffective assistance of counsel
17 because he was represented by a non-attorney. To the extent
18 he argues that application of the requirements violated the
19 notice requirements of due process or caused prejudice, his
20 argument is without merit. Due process is violated when an
21 alien is “denied a full and fair opportunity to present
22 [his] claims,” Burger v. Gonzales, 498 F.3d 131, 134 (2d
23 Cir. 2007) (quotations omitted), and thereby suffers
3
1 “cognizable prejudice,” Garcia-Villeda v. Mukasey, 531 F.3d
2 141, 149 (2d Cir. 2008). Arias-Chupina failed to
3 demonstrate prejudice because at the agency level he
4 attempted to comply with the requirements of the regulation,
5 arguing only that he could not file a complaint because
6 there was no disciplinary action to be taken against a non-
7 attorney.
8 Arias-Chupina also raises a reviewable question of law
9 as to whether § 1208.4(a)(5)(iii) was not applicable, in
10 effect asserting that there is an exception not enumerated
11 in the text of the regulation for non-attorney
12 ineffectiveness. We decline to reach the issue because the
13 BIA also concluded that, even if the regulatory requirements
14 did not apply, Arias-Chupina had failed to submit sufficient
15 evidence to show that his non-attorney representative had
16 been ineffective. The BIA reasoned that absent evidence of
17 the agreement with counsel or what Arias-Chupina needed to
18 do to prepare his application, it was unclear who was at
19 fault for the untimely filing. Accordingly, the BIA
20 effectively presumed that non-attorney ineffectiveness was a
21 non-enumerated basis for a showing of extraordinary
22 circumstances, but found the exception unmet for want of
23 evidence in support of the exception. To the extent Arias-
4
1 Chupina challenges the BIA’s determination that the evidence
2 was insufficient to demonstrate extraordinary circumstances
3 based on the non-enumerated ground of non-attorney
4 ineffectiveness, we lack jurisdiction to review that
5 determination. See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).
6 Finally, Arias-Chupina’s assertion that the BIA engaged
7 in improper fact-finding is without merit. Because the BIA
8 did not find that the testimony was other than that
9 described by the IJ or that it was not credible, and instead
10 determined that taken as true it was insufficient to
11 demonstrate extraordinary circumstances, it did not apply an
12 inappropriate standard of review. See Jian Hui Shao v.
13 Mukasey, 546 F.3d 138, 162-63 (2d Cir. 2008).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any stay of
16 removal that the Court previously granted in this petition
17 is VACATED, and any pending motion for a stay of removal in
18 this petition is DISMISSED as moot. Any pending request for
19 oral argument in this petition is DENIED in accordance with
20 Federal Rule of Appellate Procedure 34(a)(2), and Second
21 Circuit Local Rule 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
24
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