FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT October 28, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court GERSON JOHVAU MARCIA ALFARO, Petitioner, v. No. 18-9589 (Petition for Review) WILLIAM P. BARR, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT* _________________________________ Before EID, KELLY, and CARSON, Circuit Judges. _________________________________ Gerson Johvau Marcia Alfaro, a native and citizen of Honduras, seeks review of the decision of the Board of Immigration Appeals (BIA) upholding an immigration judge’s (IJ) order denying his application for asylum, restriction on removal,1 and * After examining the briefs and appellate record, this panel has determined unanimously to honor 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 submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 “Restriction on removal” was referred to as “withholding of removal” before enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Although the BIA and the respondent refer to “withholding of removal,” we use the term “restriction on removal” because Mr. Marcia filed his protection under the Convention Against Torture (CAT). We dismiss the petition for review for lack of jurisdiction. Mr. Marcia illegally entered the United States as a child in 1989 at age six. In 1991 his mother applied for asylum and listed him as a derivative on her application; the application was denied. Mr. Marcia was removed to Mexico in 1998 at age 14, and re-entered the United States the same year. In 2003 he was convicted in state court of attempted theft by receiving stolen property and sentenced to an indeterminate term not to exceed five years. He was placed in removal proceedings in 2014. Mr. Marcia conceded removability, but sought asylum, restriction on removal, and CAT protection because he feared returning to Honduras. Following several administrative hearings, the IJ denied Mr. Marcia’s petition and ordered him removed to Honduras. The IJ denied Mr. Marcia’s asylum claim because he did not file his asylum application within one year after he entered the United States, or within one year after he turned 21 in 2005. See 8 U.S.C. § 1158(a)(2)(B) (stating alien must “demonstrate[] by clear and convincing evidence that the [asylum] application has been filed within 1 year after the date of the alien’s arrival in the United States”); see also id. § 1158(a)(2)(D) (permitting consideration of an asylum application if the alien demonstrates changed or extraordinary circumstances); 8 C.F.R. claim after the IIRIRA’s effective date. See Neri-Garcia v. Holder, 696 F.3d 1003, 1006 n.1 (10th Cir. 2012). 2 § 1208.4(a)(4)(i)(B) (“Changed circumstances,” within the meaning of § 1158(a)(2)(D), include “[c]hanges in the applicant’s circumstances that materially affect ...
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