Arias-Chupina v. Holder, No. 11-2606 (2nd Cir 9-18-2012) (unpublished) denied ineffective claim for this non-attorney
Regardless of WHO gives you assistance (an attorney or non-attorney) you need to show that it actually was ineffective. It helps to get an Agreement in writing, up-front describing the terms of assistance expected and offered. If you got what you paid for, even if you lost, 11-2606 Arias-Chupina v. Holder then the assistance rendered was not ineffective. Caveat Emptor! 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 _____________________________________1213 JOSE ENRIQUE ARIAS-CHUPINA,14 Petitioner,1516 v. 11-260617 NAC18 ERIC H. HOLDER, JR., UNITED STATES19 ATTORNEY GENERAL,20 Respondent.21 _____________________________________2223 FOR PETITIONER: Anne Pilsbury, Brooklyn, New York.2425 FOR RESPONDENT: Stuart F. Delery, Acting Assistant26 Attorney General; Anthony W.27 Norwood, Senior Litigation Counsel;28 Genevieve Holm, Attorney, Office of29 Immigration Litigation, United30 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 of10 Immigration Judge (“IJ”) Helen Sichel, which pretermitted11 his application for asylum as untimely. In re Jose Enrique12 Arias Chupina, No. A079 567 758 (B.I.A. Jan. 24, 2008, June13 13, 2008), aff’g No. A079 567 758 (Immig. Ct. N.Y. City14 Sept. 6, 2005). We assume the parties’ familiarity with the15 underlying facts and procedural history of this case.16 Arias-Chupina challenges only the pretermission of his17 asylum application. We have reviewed the decision of the IJ18 as supplemented by the BIA. See Yan Chen v. Gonzales, 41719 F.3d 268, 271 (2d Cir. 2005). While we generally lack20 jurisdiction to consider the agency’s pretermission of an21 asylum application as well as its determination that an22 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 was11 untimely and that in order to be eligible to apply for12 asylum he was first required to establish that13 “extraordinary circumstances” prevented his timely filing.14 He argues that he met this standard, and that the agency15 violated his due process rights by requiring him to satisfy16 the requirements for ineffective assistance of counsel17 because he was represented by a non-attorney. To the extent18 he argues that application of the requirements violated the19 notice requirements of due process or caused prejudice, his20 argument is without merit. Due process is violated when an21 alien is “denied a full and fair opportunity to present22 [his] claims,” Burger v. Gonzales, 498 F.3d 131, 134 (2d23 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 Two different hyperlinks! 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, in10 effect asserting that there is an exception not enumerated11 in the text of the regulation for non-attorney12 ineffectiveness. We decline to reach the issue because the13 BIA also concluded that, even if the regulatory requirements14 did not apply, Arias-Chupina had failed to submit sufficient15 evidence to show that his non-attorney representative had16 been ineffective. The BIA reasoned that absent evidence of17 the agreement with counsel or what Arias-Chupina needed to18 do to prepare his application, it was unclear who was at19 fault for the untimely filing. Accordingly, the BIA20 effectively presumed that non-attorney ineffectiveness was a21 non-enumerated basis for a showing of extraordinary22 circumstances, but found the exception unmet for want of23 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 instead10 determined that taken as true it was insufficient to11 demonstrate extraordinary circumstances, it did not apply an12 inappropriate standard of review. See Jian Hui Shao v.13 Mukasey, 546 F.3d 138, 162-63 (2d Cir. 2008). Two different hyperlinks!14 For the foregoing reasons, the petition for review is15 DENIED. As we have completed our review, any stay of16 removal that the Court previously granted in this petition17 is VACATED, and any pending motion for a stay of removal in18 this petition is DISMISSED as moot. Any pending request for19 oral argument in this petition is DENIED in accordance with20 Federal Rule of Appellate Procedure 34(a)(2), and Second21 Circuit Local Rule 34.1(b).22 FOR THE COURT:23 Catherine O’Hagan Wolfe, Clerk2425 5