Rehan SARDAR, Petitioner, v. Eric H. HOLDER Jr., United States Attorney General, Respondent, 499 F. App'x 84

SUMMARY ORDER Rehan Sardar, a native and citizen of Pakistan, seeks review of a December 6, 2010, decision of the BIA affirming the June 29, 2009, decision of an Immigration Judge (“IJ”), which pretermitted his asylum application as untimely, granted his application for withholding of removal, denied his application for relief under the Convention Against Torture (“CAT”), and remanded to the IJ to complete security investigations, as well as a June 21, 2011, order of IJ Alan Vomacka, which reaffirmed the pretermission of his asylum application as untimely and granted his application for withholding of removal.

In re Rehan Sardar, No. [ AXXX XXX XXX ] (B.I.A. Dec. 6, 2010), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City June 29, 2009); & In re Rehan Sardar, No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City June 21, 2011). We assume the parties’ familiarity with the underlying facts and procedural history in this case. As an initial matter, Sardar does not dispute the agency’s finding that his asylum application was untimely; he challenges only the agency’s determination that he failed to establish changed or extraordinary circumstances excusing his untimely filing. I.

Changed Circumstances Pursuant to 8 U.S.C. § 1158(a)(3), we are without jurisdiction to review Sar-dar’s challenge to the agency’s determination that Sardar failed to establish changed circumstances excepting his application from the time limitation. See 8 U.S.C. § 1158(a)(2)(D). While we retain jurisdiction to review constitutional claims and “questions- of law,” see 8 U.S.C. § 1252(a)(2)(D), Sardar’s arguments, though framed as questions of law, in effect, dispute only the correctness of the agency’s purely factual determination that Sardar failed to demonstrate the requisite change in conditions in Pakistan.

See 8 C.F.R. § 1208.4(a)(4)(i)(A) (providing that changed circumstances include “[cjhanges in the applicant’s country conditions”); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.2006) (stating that the Court “remain[s] deprived of jurisdiction to review decisions under the INA when the petition for review essentially disputes the correctness of an IJ’s fact-finding or the wisdom of his exercise of discretion”). II.

Extraordinary Circumstances Sardar also challenges the agency’s determination that he failed to establish that the ineffective assistance of his prior counsel constituted extraordinary circumstances excusing the untimely filing of his asylum application. Because Sardar’s ineffective assistance of counsel claim contains a constitutional dimension — in that it implicates his Fifth Amendment due process rights, see Rabiu v. INS, 41 F.3d 879, 882-83 (2d Cir.1994) — this Court retains jurisdiction to consider the claim, see 8 U.S.C. § 1252(a)(2)(D).

However, the agency did not err in finding that, even assuming that Sardar’s prior counsel’s performance had been constitutionally deficient so as to constitute an extraordinary circumstance that prevented Sardar from timely filing his asylum application, Sardar nevertheless failed to demonstrate that the two-year delay in filing his application after learning of his counsel’s ineffectiveness was reasonable, See 8 C.F.R. § 1208.4(a)(5) (indicating that extraordinary circumstances “may excuse the failure to file within the 1-year period as long as the alien filed the [asylum] application within a reasonable period given those circumstances”).

For the foregoing reasons, the petition for review is DISMISSED in part and DENIED in part. As we have completed our review, the stay of removal that the Court previously granted in this petition is VACATED. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).