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

New York, on the 18th 4 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 non7 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 Arias4
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

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