        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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