11-2606 Arias-Chupina v. Holder BIA A079 567 758 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**RULINGS BY SU MMARY ORDER DO NOT**  **HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 18 th** **day of September, two thousand twelve.** 4 5 **PRESENT:** 6 **ROBERT D. SACK,** 7 **PETER W. HALL,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **JOSE ENRIQUE ARIAS-CHUPINA,** 13 Petitioner**,** 14 15 **v. 11-2606** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Anne Pilsbury, Brooklyn, New York.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 25 **Attorney General; Anthony W.** 26 **Norwood, Senior Litigation Counsel;** 27 **Genevieve Holm, Attorney, Office of** 28 **Immigration Litigation, United** 29 **States Department of Justice,** 30 **Washington, D.C.** 311 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED, that the petition for review 4 is DENIED. 5 Petitioner Jose Enrique Arias-Chupina, a native and 6 citizen of Guatemala, seeks review of January 24, 2008, and 7 June 13, 2008, orders of the BIA, affirming, initially and 8 on reconsideration, the September 6, 2005, decision of 9 Immigration Judge (“IJ”) Helen Sichel, which pretermitted 10 his application for asylum as untimely. In re Jose Enrique 11 Arias Chupina, No. A079 567 758 (B.I.A. Jan. 24, 2008, June 12 13, 2008), aff’gNo. A079 567 758 (Immig. Ct. N.Y. City 13 Sept. 6, 2005). We assume the parties’ familiarity with the 14 underlying facts and procedural history of this case. 15 Arias-Chupina challenges only the pretermission of his 16 asylum application. We have reviewed the decision of the IJ 17 as supplemented by the BIA. See Yan Chen v. Gonzales, 417 18 F.3d 268, 271 (2d Cir. 2005). While we generally lack 19 jurisdiction to consider the agency’s pretermission of an 20 asylum application as well as its determination that an 21 alien failed to demonstrate “extraordinary circumstances” 22 for his failure to timely file, see 8 U.S.C. § 1158(a)(3); 23

2Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 330 (2d 1 Cir. 2006), we retain jurisdiction to review constitutional 2 claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D). 3 Arias-Chupina’s argument that 8 C.F.R. § 1208.4(a)(5)(iii), 4 which sets forth the “extraordinary circumstances” exception 5 to the one-year filing requirement for ineffective 6 assistance of counsel, does not apply to him because his 7 application was prepared by a non-attorney raises a question 8 of law over which we have jurisdiction. 9 Arias-Chupina concedes that his application was 10 untimely and that in order to be eligible to apply for 11 asylum he was first required to establish that 12 “extraordinary circumstances” prevented his timely filing. 13 He argues that he met this standard, and that the agency 14 violated his due process rights by requiring him to satisfy 15 the requirements for ineffective assistance of counsel 16 because he was represented by a non-attorney. To the extent 17 he argues that application of the requirements violated the 18 notice requirements of due process or caused prejudice, his 19 argument is without merit. Due process is violated when an 20 alien is “denied a full and fair opportunity to present 21 [his] claims,” Burger v. Gonzales, 498 F.3d 131, 134 (2d 22 Cir. 2007) (quotations omitted), and thereby suffers 23

3“cognizable prejudice,” Garcia-Villeda v. Mukasey, 531 F.3d 1 141, 149 (2d Cir. 2008). Arias-Chupina failed to 2 demonstrate prejudice because at the agency level he 3 attempted to comply with the requirements of the regulation, 4 arguing only that he could not file a complaint because 5 there was no disciplinary action to be taken against a non6 attorney. 7 Arias-Chupina also raises a reviewable question of law 8 as to whether § 1208.4(a)(5)(iii) was not applicable, in 9 effect asserting that there is an exception not enumerated 10 in the text of the regulation for non-attorney 11 ineffectiveness. We decline to reach the issue because the 12 BIA also concluded that, even if the regulatory requirements 13 did not apply, Arias-Chupina had failed to submit sufficient 14 evidence to show that his non-attorney representative had 15 been ineffective. The BIA reasoned that absent evidence of 16 the agreement with counsel or what Arias-Chupina needed to 17 do to prepare his application, it was unclear who was at 18 fault for the untimely filing. Accordingly, the BIA 19 effectively presumed that non-attorney ineffectiveness was a 20 non-enumerated basis for a showing of extraordinary 21 circumstances, but found the exception unmet for want of 22 evidence in support of the exception. To the extent Arias23

4Chupina challenges the BIA’s determination that the evidence 1 was insufficient to demonstrate extraordinary circumstances 2 based on the non-enumerated ground of non-attorney 3 ineffectiveness, we lack jurisdiction to review that 4 determination. See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). 5 Finally, Arias-Chupina’s assertion that the BIA engaged 6 in improper fact-finding is without merit. Because the BIA 7 did not find that the testimony was other than that 8 described by the IJ or that it was not credible, and instead 9 determined that taken as true it was insufficient to 10 demonstrate extraordinary circumstances, it did not apply an 11 inappropriate standard of review. See Jian Hui Shao v. 12 Mukasey, 546 F.3d 138, 162-63 (2d Cir. 2008). 13 For the foregoing reasons, the petition for review is 14 DENIED. As we have completed our review, any stay of 15 removal that the Court previously granted in this petition 16 is VACATED, and any pending motion for a stay of removal in 17 this petition is DISMISSED as moot. Any pending request for 18 oral argument in this petition is DENIED in accordance with 19 Federal Rule of Appellate Procedure 34(a)(2), and Second 20 Circuit Local Rule 34.1(b). 21

FOR THE COURT: 22 Catherine O’Hagan Wolfe, Clerk 23 24 25

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