                                                                        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      This order and judgment is not binding precedent, except under the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




                                               -4-
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)).

                                              -5-
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


                                              -6-
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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