F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 31, 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOSE LUIS BARRIOS-CANORIO,
Petitioner,
v. No. 04-9611
(No. A78-120-993)
ALBERTO R. GONZALES, * Attorney (Petition for Review)
General; MICHAEL CHERTOFF, **
Secretary, Dept. of Homeland Security
and Bureau of Custom & Immig.
Enforcement,
Respondents.
ORDER AND JUDGMENT ***
Before HENRY , ANDERSON , and TYMKOVICH , Circuit Judges.
*
On February 4, 2005, Alberto R. Gonzales became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Gonzales is substituted for John Ashcroft as the
Respondent in this action.
**
On March 3, 2005, Michael Chertoff became the Secretary of the
Department of Homeland Security. In accordance with Rule 43(c)(2) of the
Federal Rules of Appellate Procedure, Mr. Chertoff is substituted for Tom Ridge
as the Respondent in this action.
***
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Petitioner Jose Luis Barrios-Canorio, a native and citizen of Peru , seeks
review of a final order of removal issued by the Board of Immigration Appeals
(BIA) that summarily affirmed the immigration judge’s (IJ) denial of his requests
for asylum, restriction on removal, and relief under the Convention Against
Torture (CAT). 1 We dismiss the petition for review as to Mr. Barrios-Canorio ’s
application for asylum and relief under the CAT for want of jurisdiction. We
deny the petition for review as to his request for restriction on removal because
the IJ’s findings of fact are supported by substantial evidence in the record.
When the BIA summarily affirms an IJ’s decision without providing its
own reasoning, we review the IJ’s decision as if it were the BIA’s. Tsevegmid v.
Ashcroft , 336 F.3d 1231, 1235 (10th Cir. 2003). The IJ in this case ruled that
(1) asylum must be denied because Mr. Barrios-Canorio did not file his asylum
application in a timely manner and did not demonstrate that his tardiness was due
1
Although the BIA, the IJ, and the parties refer to “withholding of removal,”
the proceedings in this case were initiated after the effective date of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, and we therefore
use the new statutory “restriction on removal” terminology in this order and
judgment. See Wiransane v. Ashcroft, 366 F.3d 889, 892-93 n.1 (10th Cir. 2004).
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to changed or extraordinary circumstances; (2) restriction on removal and relief
under the CAT must be denied because Mr. Barrios-Canorio failed to demonstrate
that he had suffered past persecution or that it would be more likely than not that
he would be persecuted or tortured if he was returned to Peru; and (3)
Mr. Barrios-Canorio was ineligible for voluntary departure because he had been
convicted of a theft offense for which the term of imprisonment was at least one
year.
In his petition for review, Mr. Barrios-Canorio challenges most of the
foregoing rulings and raises several points concerning the merits of his asylum
claim. He also argues, for the first time in this court, that because a state court
has vacated his conviction and re-sentenced him nun pro tunc to less than one
year of imprisonment, his conviction no longer constitutes an aggravated felony.
I.
We have jurisdiction over petitions for review of final orders of removal,
8 U.S.C. § 1252(a), but that jurisdiction is limited. Pertinent to the case at hand,
we do not have jurisdiction to review any determination related to the timeliness
of an application for asylum. Tsevegmid , 336 F.3d at 1234-35 (discussing
8 U.S.C. § 1158(a)(3)). We therefore cannot address the substance of
Mr. Barrios-Canorio’s arguments concerning the timeliness (or merit) of his
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asylum application, and we dismiss the petition for review as to asylum for lack
of jurisdiction under 8 U.S.C. § 1158(a)(3). See also 8 U.S.C. § 1158(a)(2)(B)
(timely-filed application for asylum is a statutory prerequisite to being considered
for such relief).
We are also without jurisdiction to review an issue that an alien failed to
raise on appeal to the BIA because the failure to raise an issue before the BIA
constitutes a failure to exhaust administrative remedies. Rivera-Zurita v. INS ,
946 F.2d 118, 120 n.2 (10th Cir. 1991); see also 8 U.S.C. § 1252(d)(1)
(foreclosing judicial review when administrative remedies are not exhausted). In
this case, Mr. Barrios-Canorio failed to argue before the BIA that he was eligible
for voluntary departure because he had been re-sentenced to less than one year of
imprisonment and therefore his conviction no longer constituted an aggravated
felony. See 8 U.S.C. § 1101(a)(43)(G) (“aggravated felony” means “a theft
offense . . . for which the term of imprisonment [is] at least one year”). See also
§ 1229c(b)(1)(B) (requiring a finding of “good moral character” to be eligible for
voluntary departure); § 1101(f)(8) (stating that no person shall be deemed to be
“of good moral character” if he “has been convicted of an aggravated felony”).
Since this issue was not raised on appeal to the BIA, we do not have jurisdiction
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to entertain it. 2
Likewise, Mr. Barrios-Canorio, on appeal to the BIA, failed to
challenge the IJ’s denial of relief under the CAT. Indeed, he made no mention of
the regulations that implement the CAT. 8 C.F.R. §§ 1208.16, 1208.17, 1208.18.
Accordingly, we dismiss the petition for review as to the CAT for lack of
jurisdiction under 8 U.S.C. § 1252(d)(1).
II.
We now turn to the one issue in Mr. Barrios-Canorio’s petition for review
that we have jurisdiction to consider: his contention that the IJ’s denial of his
request for restriction on removal is not supported by substantial evidence. See
Tsevegmid , 336 F.3d at 1235 (explaining that although 8 U.S.C. § 1158(a)(3)
strips court of jurisdiction to consider timeliness of asylum application, it does
not prevent court from exercising jurisdiction, under § 1252(a), to review a denial
of withholding of removal). As previously noted, we review the IJ’s decision in
this case as if it were the BIA’s. See Tsevegmid , 336 F.3d at 1235. In so doing,
“[w]e consider any legal questions de novo, and we review the agency’s findings
of fact under the substantial evidence standard.” Elzour v. Ashcroft , 378 F.3d
1143, 1150 (10th Cir. 2004); 8 U.S.C. § 1252(b)(4)(B) (“[A]dministrative
2
Moreover, this court has held that “we lack jurisdiction to review an
immigration judge’s refusal to grant voluntary departure.” Ekasinta v. Gonzales ,
415 F.3d 1188, 1190 (10th Cir. 2005) (citing 8 U.S.C. § 1229c(f)).
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findings of fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.”).
To qualify for restriction on removal, an applicant must “establish a clear
probability of persecution” attributable to “race, religion, nationality, membership
in a particular social group, or political opinion.” Elzour , 378 F.3d at 1149
(citing 8 U.S.C. § 1231(b)(3)(A)). “This test requires the alien to show that such
persecution is more likely than not.” Id. Mr. Barrios-Canorio attempted to satisfy
this test by proffering facts that, he claimed, amounted to past persecution. See
8 C.F.R. § 1208.16(b)(1)(i) (“If the applicant is determined to have suffered past
persecution . . ., it shall be presumed that the applicant’s life or freedom would be
threatened in the future in the country of removal.”). The IJ disagreed, finding
that while Mr. Barrios-Canorio’s “one incident of direct contact . . . with the
MRTA guerrillas,” may have left him feeling “insecure,” that contact did not
“amount[] to past persecution.” Admin. R. at 43. The IJ concluded: “the Court
finds that the respondent has not shown that it is more likely than not that he
would be subject to persecution . . . if he’s returned to Peru. Based on this
finding, the Court must deny the relief of withholding of removal.” Id. at 44.
After reviewing the briefs and record in accordance with the prescribed
deferential standard of review, we cannot conclude that a reasonable adjudicator
would be compelled to reject the IJ’s findings of fact. Rather, the IJ’s findings of
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fact are supported by substantial evidence, and we deny the petition for review as
to Mr. Barrios-Canorio’s request for restriction on removal.
III.
The petition for review is DISMISSED IN PART and DENIED IN PART.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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