                                                                            FILED
                            NOT FOR PUBLICATION                             MAY 26 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


DARWIN MAZARIEGOS-DIAZ, AKA                      No. 11-73581
Darwin Manuel Mazariegos,
                                                 Agency No. A078-064-843
              Petitioner,

  v.                                             MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                            Submitted February 11, 2015**
                              San Francisco, California

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




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             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.
                                         -2-
       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
                                          -3-
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.
