                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-1553



MOHAMED LAMINE DIAWARA,

                                                         Petitioner,

          versus


ALBERTO   R.   GONZALES,  Attorney     General;
DEPARTMENT OF HOMELAND SECURITY,

                                                        Respondents.


     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 05-5352)


Submitted:   August 4, 2006            Decided:   September 20, 2006


Before WILKINSON, KING, and DUNCAN, Circuit Judges.


Petition dismissed by unpublished per curiam opinion.


Theresa I. Obot, LAW OFFICE OF THERESA I. OBOT, Baltimore,
Maryland, for Petitioner.    Peter D. Keisler, Assistant Attorney
General, M. Jocelyn Lopez Wright, Assistant Director, Larry P.
Cote, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondents.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

              Mohamed Lamine Diawara, a native and citizen of Guinea,

petitions for review of an order of the Board of Immigration

Appeals (“Board”) affirming without opinion the decision of the

immigration        judge      (“IJ”)         denying       asylum,          withholding     of

deportation, and relief under the Convention Against Torture.                               We

previously dismissed the petition for lack of jurisdiction.                                See

Diawara       v.   Gonzales,       126       F.     App’x       132    (4th     Cir.      2005)

(unpublished).         On May 11, 2005, Congress enacted the REAL ID Act,

adding a new subsection to the judicial review provisions.                                 The

Supreme       Court      subsequently         granted         Diawara’s       petition     for

certiorari, vacated this court’s judgment, and remanded for further

consideration         in   light   of    8    U.S.C.      §     1252(a)(2)(D).          Having

reconsidered Diawara’s petition for review in light of 8 U.S.C.A.

§ 1252(a)(2)(D) (West 2005), we dismiss the petition.

              Diawara challenges the IJ’s findings that his asylum

application        was     untimely      and       that    he     failed      to    establish

extraordinary         circumstances          for    an    exception         under   8   U.S.C.

§ 1158(a)(2) (2000).          He contends his former counsel’s ineffective

assistance constituted extraordinary circumstances to excuse his

untimely filing and a violation of his due process rights.                                  We

previously concluded we lacked jurisdiction to consider Diawara’s

challenges to the denial of his asylum application pursuant to 8

U.S.C.    §    1158(a)(3)      (2000).             Even   after       the    REAL    ID   Act,


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“discretionary or factual determinations continue to fall outside

the jurisdiction of the court of appeals.” Vasile v. Gonzales, 417

F.3d 766, 768 (7th Cir. 2005).            The timeliness of an alien’s asylum

application    is   usually     a   question      of   fact.     See   Mehilli   v.

Gonzales, 433 F.3d 86, 93 (1st Cir. 2005).                 However, pursuant to

the REAL ID Act, we have a narrowly circumscribed jurisdiction to

resolve constitutional claims or questions of law raised by aliens

seeking discretionary relief.              Higuit v. Gonzales, 433 F.3d 417,

419 (4th Cir.), cert. denied, 126 S. Ct. 2973 (2006).

             We conclude that even in light of § 1252(a)(2)(D), we are

precluded from considering Diawara’s ineffective assistance claim

at this stage because he failed to properly exhaust administrative

remedies with respect to the claim in his direct appeal to the

Board.      See 8 U.S.C. § 1252(d) (2000); Ming Ming Wijono v.

Gonzales, 439 F.3d 868, 871-72 (8th Cir. 2006); Stewart v. INS, 181

F.3d 587, 596 (4th Cir. 1999).               We also lack jurisdiction over

Diawara’s     challenges   to       the    IJ’s   denial    of   withholding     of

deportation and relief under the Convention Against Torture because

Diawara failed to properly exhaust these claims in his appeal to

the Board.     See 8 U.S.C. § 1252(d) (2000); Asika v. Ashcroft, 362

F.3d 264, 267 n.3 (4th Cir. 2004).

            Accordingly, we dismiss the petition for review.                     We

dispense with oral argument because the facts and legal contentions




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are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                 PETITION DISMISSED




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