FILED
NOT FOR PUBLICATION MAR 04 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LUIS ANTONIO JIMENEZ-CLEMENT, No. 07-74030
a.k.a. Luis Antonio Jimenez,
Agency No. A029-492-618
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 18, 2011
San Francisco, California
Before: O’SCANNLAIN and TROTT, Circuit Judges, and CAMPBELL, Chief
District Judge.**
Luis Antonio Jimenez-Clement petitions for review of the decision of the
BIA affirming the IJ’s denial of asylum and withholding of removal under the
Immigration and Nationality Act. We review the BIA’s legal conclusions de novo
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Tena Campbell, Senior United States District Judge
for the District Court of Utah, sitting by designation.
and its factual findings for substantial evidence. Nuru v. Gonzales, 404 F.3d 1207,
1215 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.
We have jurisdiction to review the BIA’s determination that Jimenez-
Clement did not file his application within a reasonable time after a change in
circumstances relevant to his request for asylum. See Dhital v. Mukasey, 532 F.3d
1044, 1049 (9th Cir. 2008). Although the language of 8 U.S.C. § 1158(a)(3) states
that “[n]o court shall have jurisdiction to review any determination of the Attorney
General” with respect to the one-year bar, we have held that section 106 of the
REAL ID Act, 8 U.S.C. § 1252(d), restores our jurisdiction to review claims
involving the “application of statutes and regulations to undisputed historical
facts.” Ramadan v. Gonzales, 479 F.3d 646, 654 (9th Cir. 2007) (footnote
omitted). Because the government does not dispute the date of Jimenez-Clement’s
arrival in the United States or the date of his application, we are required to
consider whether that application was timely. See Husyev v. Mukasey, 528 F.3d
1172, 1179 (9th Cir. 2008).
The BIA’s conclusion that the application was not filed within a reasonable
time following the 2004 Panamanian presidential election is supported by
substantial evidence. Jimenez-Clement claims only that the “extraordinary
circumstances” of his arrest and incarceration prevented him from filing the
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application in a timely manner. See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. §§
1208.4(a)(4)(ii), (a)(5). These circumstances do not excuse his untimely filing: the
regulations place the burden of proof on the asylum applicant to show “that the
[extraordinary] circumstances were not intentionally created by [the applicant]
through his or her own action or inaction.” 8 C.F.R. § 1208.4(a)(5). Jimenez-
Clement’s application for asylum is time-barred.
We lack jurisdiction over Jimenez-Clement’s claim that the BIA improperly
analyzed his claim as one asserting a fear of future persecution, rather than a claim
relying on past persecution. Jimenez-Clement did not raise this argument to the
BIA. Therefore, we may not consider it. Barron v. Ashcroft, 358 F.3d 674, 678
(9th Cir. 2004) (holding that § 1252(d)(1) “mandates exhaustion and therefore
generally bars us, for lack of subject-matter jurisdiction, from reaching the merits
of a legal claim not presented in administrative proceedings below.”).
PETITION DENIED IN PART AND DISMISSED IN PART.
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