         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
25


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