DARWIN MAZARIEGOS-DIAZ, AKA Darwin Manuel Mazariegos v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARWIN MAZARIEGOS-DIAZ, AKA
Darwin Manuel Mazariegos,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 11-73581
Agency No. A078-064-843
MEMORANDUM*
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.***
FILED
MAY 26 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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.

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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

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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.

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