Oleg Fedorovich NIKISHCHENKO, Petitioner, v. Loretta E. LYNCH, United States Attorney General, Respondent, 614 F. App'x 3

SUMMARY ORDER Petitioner, Oleg Fedorovich Nikishchen-ko, 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 (“U”), pretermitting his asylum application as untimely. In re Oleg Fedorovich Nikishchenko, No. [ AXXX XXX XXX ] (B.I.A. Jan. 12, 2012), aff'g No. [ AXXX XXX XXX ] (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). 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, id. § 1252(a)(2)(D); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.2006). We review this question of law de novo. Shi Jie Ge v. Holder, 588 F.3d 90, 93-95 (2d Cir.2009).

The agency determined that Nikishchen-ko’s application was untimely because he had not demonstrated due diligence in discovering the attorney’s error and in applying for asylum. In support of this finding, the BIA cited Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir.2007), and Cekic v. INS, 435 F.3d 167, 170 (2d Cir.2006). Nikishehenko 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, 232 F.3d 124, 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 unnecessary to correct the error because it is clear that the agency determined that Nikishchenko’s filing delay was unreasonable. See Alam v. Gonzales, 438 F.3d 184, 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. We have considered all of Nikishchen-ko’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.