12-373-ag
    Nikishchenko v. Lynch
                                                                                  BIA
                                                                           McManus, IJ
                                                                          A088 436 455
                            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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 5th day of June, two thousand fifteen.

    PRESENT: AMALYA L. KEARSE,
             ROSEMARY S. POOLER,
             DEBRA ANN LIVINGSTON,
                  Circuit Judges.
    ___________________________________

    OLEG FEDOROVICH NIKISHCHENKO,
             Petitioner,

                     v.                                    12-373-ag

    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.1
    ___________________________________

    FOR PETITIONER:                  Cleland B. Welton II (Stephen A.
                                     Broome, on the brief), Quinn Emanuel
                                     Urquhart & Sullivan, LLP, New York,
                                     N.Y.

            1
           Pursuant to Federal Rule of Appellate Procedure
    43(c)(2), Attorney General Loretta E. Lynch is automatically
    substituted for former Attorney General Eric H. Holder, Jr.
FOR RESPONDENT:        Channah F. Norman, Trial Attorney
                       (Stuart F. Delery, Assistant
                       Attorney General, John S. Hogan,
                       Senior Litigation Counsel, on the
                       brief), Office of Immigration
                       Litigation, Civil Division, United
                       States Department of Justice,
                       Washington, D.C.



    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.



    Petitioner, Oleg Fedorovich Nikishchenko, a native of

the Soviet Union and citizen of Ukraine, seeks review of a

January 12, 2012 decision of the BIA affirming the December

16, 2010 decision of an Immigration Judge (“IJ”),

pretermitting his asylum application as untimely. In re Oleg

Fedorovich Nikishchenko, No. A088 436 455 (B.I.A. Jan. 12,

2012), aff’g No. A088 436 455 (Immig. Ct. N.Y. City Dec. 16,

2010). We assume the parties’ familiarity with the

underlying facts and procedural history of the case.

    Nikishchenko challenges the agency’s denial of his

asylum application as filed more than one year after his

entry into the United States. See 8 U.S.C. § 1158(a)(2)(B).

                             2
He argues that his 2009 application should be excepted from

the one-year filing deadline because, in 1997, an attorney

misadvised him that he was ineligible for asylum because his

tourist visa had expired, and he did not discover the error

until he obtained pro bono counsel to defend him in the 2009

removal proceedings. Ineffective assistance of counsel is an

“extraordinary circumstance” excusing the one-year deadline

“as long as the alien filed the application within a

reasonable period given those circumstances.”   8 C.F.R.

§ 1208.4(a)(5). Nikishchenko argues that the agency failed

to apply the correct legal standard in concluding that his

application did not meet this requirement.

    Although we generally lack jurisdiction to review the

pretermission of an asylum application as untimely, 8 U.S.C.

§ 1158(a)(3), whether the agency applied the correct legal

standard in determining timeliness raises a question of law

over which we retain jurisdiction, 

Xiao

Ji Chen v. U.S. Dep’t of Justice, 

, 329 (2d Cir.

2006). We review this question of law de novo. Shi Jie Ge v.

Holder, 

, 93-95 (2d Cir. 2009).

    The agency determined that Nikishchenko’s application

was untimely because he had not demonstrated due diligence


                             3
in discovering the attorney’s error and in applying for

asylum. In support of this finding, the BIA cited Jian Hua

Wang v. BIA, 

, 715 (2d Cir. 2007), and Cekic v.

INS, 

, 170 (2d Cir. 2006). Nikishchenko is

correct that these cases, and the due diligence standard

they employ, are related not to the reasonable-period

standard, but to the equitable exception for untimely

motions to reopen. While it is true that the former standard

derived from equity principles, and the latter from

regulation, both address whether it is reasonable to expect

that an alien should have discovered and raised his

ineffective assistance claim earlier. See Iavorski v. U.S.

INS, 

, 134 (2d Cir. 2000) (explaining that

equitable tolling is applied until error should have been

discovered by a reasonable person); Asylum Procedures, 62

Fed. Reg. 10312, 10316 (Mar. 6, 1997) (stating that the

alien has the burden of establishing that the application

would have been timely filed “but for” the extraordinary

circumstances and requiring that an alien who meets the

extraordinary circumstance criteria file the application

“within a reasonable time period given those circumstances”

(internal quotation marks omitted)). Remand is therefore


                             4
unnecessary to correct the error because it is clear that

the agency determined that Nikishchenko’s filing delay was

unreasonable. See Alam v. Gonzales, 

, 187 (2d

Cir. 2006) (declining to remand “where there is no realistic

possibility that, absent the errors, the IJ or BIA would

have reached a different conclusion” (internal quotation

marks omitted)).

    Our analysis ends here because our jurisdiction is

limited to questions of law. Despite Nikishchenko’s

invitation to determine the reasonableness of his delay,

that determination is factual and not subject to review. See

8 U.S.C. §§ 1158(a)(3), 1252(a)(2) (excluding factual

findings from review). Contrary to his argument that the

agency created a new rule requiring misadvised aliens to

seek second opinions, the agency merely found it

unreasonable that he would not attempt to seek counsel in

the twelve years prior to the onset of proceedings to pursue

any immigration relief, and thereby discover his attorney’s

error. Nikishchenko has therefore failed to identify any

error of law subject to further review.




                             5
    We have considered all of Nikishchenko’s contentions

that are properly before us and have found them to be

without merit. For the foregoing reasons, the petition for

review is DENIED.

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




                             6