Darwin Mazariegos-Diaz v. Loretta E. Lynch

May 26, 2015

11-73581

Versions:

Christopher John Stender, Esquire, Federal Immigration Counselors, Inc., APC, San Francisco, CA, for Petitioner.

James A. Hurley, Oil, U.S. Department of Justice, Washington, DC, Chief Counsel Ice, Office of the Chief Counsel Department of Homeland Security, San Francisco, CA, for Respondent.

Before: SCHROEDER and SILVERMAN, Circuit Judges, and HUCK, Senior District Judge.**

MEMORANDUM ***

Darwin Mazariegos-Diaz, a Guatemalan citizen, petitions for review of the Board of Immigration Appeals’ denial of his untimely motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We DISMISS in part and DENY in part the petition.

Mazariegos-Diaz did not make the first of the arguments he articulates now in his motion to reopen before the BIA: that he is an unaccompanied alien child as that term is defined by the Trafficking Victims Protection Reauthorization Act because he was ten years old when his mother applied for asylum and therefore his asylum application must be adjudicated in the first instance by the United States Citizenship and Immigration Services. Because the argument is unexhausted, this court lacks jurisdiction to consider it, Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004), and that aspect of the petition for review is DISMISSED.

We do have jurisdiction to consider Mazariegos-Diaz’s other arguments: that USCIS must adjudicate his current asylum application under the TVPRA because, notwithstanding the fact that Mazariegos-Diaz was twenty years old when he filed his current asylum application, he was ten years old when his mother fled to the United States and left him in Guatemala and sixteen years old when he entered the United States. Because the BIA correctly concluded that Mazariegos-Diaz was not an unaccompanied alien child when he filed his application, the court DENIES the remainder of the petition.

A person’s status as an unaccompanied alien child for purposes of the TVPRA’s initial-jurisdiction provision is determined as of the date the person applies for asylum, not as of the date the person enters the United States or the date the person was abandoned by his or her parents. See 8 U.S.C. § 1158(b)(3)(C) (“An asylum officer ... shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child”) (emphasis added); Harmon v. Holder, 758 F.3d 728, 735 (6th Cir.2014) (“[T]he TVPRA does not transfer initial jurisdiction over asylum applications filed by former unaccompanied alien children to the USCIS”). Mazariegos-Diaz was twenty years old when he applied for asylum; as he was over eighteen years of age, he was not an unaccompanied alien child. See 6 U.S.C. § 279(g)(2). The other dates he argues (the date his mother left Guatemala and the date he entered the United States) are irrelevant to that determination.

PETITION FOR REVIEW DISMISSED IN PART, DENIED IN PART.

Notes

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

The Honorable Paul C. Huck, Senior District Judge for the U.S. District Court for Southern Florida, sitting by designation.

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This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.