                                                                           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                            NOT FOR PUBLICATION                             MAR 04 2011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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