Asghar v. Mukasey

274 F. App'x 64

• Court: Court of Appeals for the Second Circuit
• Decided: April 23, 2008
• Docket: No. 07-3447-ag
• Status: Published

Opinion

SUMMARY ORDER

Ali Asghar, a native and citizen of Pakistan, seeks review of a July 27, 2007 order of the Board of Immigration Appeals (“BIA”) affirming the February 24, 2006 decision of Immigration Judge (“IJ”) Vivienne E. Gordon-Uruakpa pretermitting Asghar’s application for asylum and denying his application for withholding of removal and CAT relief. In re Asghar, No. A 77 643 048 (B.I.A. July 27, 2007), aff'g No. A 77 643 048 (Immig. Ct. N.Y. City Feb. 24, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of this case.

Title 8, Section 1158(a)(3) of the United States Code provides that no court shall have jurisdiction to review the agency’s finding that an asylum application was untimely under 8 U.S.C. § 1158(a)(2)(B), or its finding that changed or extraordinary circumstances did not excuse the untimely filing under id. § 1158(a)(2)(D). We retain jurisdiction, however, over constitutional claims and questions of law under id. 1252(a)(2)(D) (“Nothing in subparagraph (B) or (c), or in any other provision of this Chapter ... which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals.....”)

Asghar argues that he believed that he did file a claim for asylum within the one-year time period, but that the application may not have been filed due to the ineffective assistance of his prior counsel. He also contends that the exact circumstances of what transpired cannot be ascertained due to the disappearance of Asghar’s first counsel.

In its opinion, the IJ did not adequately explain its reasoning as to why it did not consider that the “disappearance” of As-ghar’s first counsel, with respect to As-ghar’s claim that he believed that he filed for asylum within the one-year deadline, constituted extraordinary circumstances under id. § 1208.4(a)(5). As the BIA did not further explicate the reasoning of the IJ, we lack an adequate basis to rule on Asghar’s claim and therefore remand the issue to the BIA to decide in the first instance after full briefing from both parties. In light of the highly fluid nature of the political situation in Pakistan, we recommend that the BIA and the parties also address whether changed circumstances in Asghar’s native country materially affect his petition for asylum.

For the foregoing reason, the petition for review is GRANTED.