UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

JOE RICHARD ARTUR, Petitioner,

v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. No. 13-9582 (Petition for Review)

ORDER AND JUDGMENT *

Before LUCERO and McKAY , Circuit Judges, and BRORBY , Senior Circuit Judge.

Joe Richard Arthur 1 seeks review of a Board of Immigration Appeals (“BIA”) decision that dismissed his a ppeal from an Immigration J udge’s (“IJ”) order denying his application for asylum, restriction on removal, and protec tion under the United

* After examining the briefs and appellate record, th is 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. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1.
1 Petitioner’s last name appears various ly as “Artur” or “Arthur” throughout the record. Because petitione r used “Arthur” in his br ief, we have as well. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court- 2 - Nations Convention Against To rture (“CAT”). The petition for review is dismissed in part for lack of jurisdic tion and otherwise denied.
I Petitioner, a native and citizen of Ghan a, was legally admi tted to the United States in June 2004. He remained in this country without author ization after his visa expired on Septembe r 17, 2004. Arthur married a United States citizen, Nyeisha Nicole Clark, in July 2005. Clark filed a Petition for Alie n Relative on Arthur’s behalf in August 2005, but they divorced in July 2007. In February 2009, the United States Citizenship and Immigration Services (“USCIS”) denied the petition based on abandonment, finding that Arthur had “taken part in a fraudul ent or sham marriage to circumvent the immigration laws.” In October 2008, petitioner married hi s current wife, Lori Roundy, also a United States citizen. Roundy filed a Petiti on for Alien Relative on Arthur’s behalf in October 2008, and another in Novemb er 2009. USCIS de nied both petitions pursuant to 8 U.S.C. § 1154( c), which provides that no petition shall be approved if . . . the alien has previously been accorded, or has sought to be accorded, an immediate re lative . . . status as the spouse of a citizen of the United States . . . by r eason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws. On appeal, the BIA remanded the second petit ion to USCIS to complete the record (to include, among other documents, a copy of the order denying Clark’s petition), to- 3 - allow the parties an opportunity to update the record, and to enter a new decision if USCIS decided the petition should again be denied. As far as the record before us shows, that matter is still pending. Removal proceedings were initiated agains t Arthur in June 201 1. He conceded removability at a hearing in August 2011. Arthur then a pplied for asylum, restriction on removal, and protection from removal under the CAT at a hearing in December 2011. The application for asylum was si gned by petitioner and the IJ in May 2012. On the application, petiti oner checked the boxes corr esponding to every possible ground for fearing a return to his native c ountry: race, religion, nationality, political opinion, membership in a partic ular social group, and tort ure. In support of these grounds, he wrote that he feared harm fr om radical Islamic groups who could enter Ghana from neighboring countries because he supports democratic values and Western culture; he would be perceived to be wealthy b ecause he had lived in the United States; his marriage to Roundy is interracial; he and his wife are both members of the Church of Jesus Christ of Latter-day Saints (t he Mormon Church); his son is a United States citizen; and, thro ugh his wife, he has other family members who are United States citizens. He explaine d that he was filing his application more than a year after his entry into the United States because he now had a wife and son who would accompany him to Ghan a if he were removed. Petitioner’s asylum claim was held un timely under 8 U.S.C. § 1158(a)(2)(B), which provides that an application for asylum must be “filed with in 1 year after the- 4 - date of the alien’s arrival in the United States.” The IJ declined to apply the exception in 8 C.F.R. § 1208.4(a)(4)(ii) for claims filed “within a reasonable period” after changed circumstances because pe titioner married Roundy and joined the Mormon Church in 2008 but did not a pply for asylum until December 2011—more than three years later—and he had testified that he feared a return to Ghana when his visa expired in 2004. Additionally, the IJ concluded that even if petitioner’s asylum claim were considered, he did not meet his burden of proving that he was a refugee within the meaning of 8 U.S.C. § 1101(a)(42), as required for asylum eligibility by § 1158(b)(1)(A). The IJ found that petitione r had not suffered past persecution, and that his claimed fear of fu ture religious persecution was not objectively credible in light of the record evidence showing that the government of Ghana protects religious freedom, that the majority of the country is Christian, that the Mormon Church has a significant presence in Ghana, and that only a small minority of citizens are Muslim. Similarly, the IJ found th at petitioner’s other expres sed fears regarding his own return to Ghana were speculative and not s upported by the credib le evidence in the record. Concluding that Arthur’s fear was pr imarily for his wife and son if they went to Ghana with him, the IJ ru led that petitioner’s fear for his family did not support his claim for asylum. Having de termined that petitioner faile d to meet his burden of proof with respect to asylum , the IJ also concluded that petitioner did not meet the standards for restriction on remova l and protection under the CAT.- 5 - Arthur filed an administrative appeal to the BIA. While the appeal was pending, he filed a motion to remand his removal proceedings to the IJ for a continuance on the ground that his wife’s s econd Petition for Alien Relative had been remanded to USCIS. The government argued that a remand of the removal proceedings was not warranted because ap proval of the Petition for Alien Relative was foreclosed by 8 U.S.C. § 1154(c). Th e BIA dismissed petitioner’s administrative appeal and denied his motion to remand. Regarding Arthur’s appeal, the BIA conc urred with the IJ’s conclusion that the asylum claim was untimely because it wa s unreasonable for petitioner to wait three years to file after the asse rted changed circumstances of his marriage to Roundy and his religious conversion. The BIA also agr eed with the IJ’s conclusion that petitioner had failed to satisfy his bur den of proof for asylum, re striction on removal, or protection under the CAT. Petitioner’s motion to rema nd was denied because his wife’s Petition for Alien Relative had not b een approved and he failed to meet the requirements for a remand. Arthur filed this petition for review.
II Arthur argues that the BIA erred in conc luding that: (1) his asylum application was untimely, because the IJ and the BIA failed to consider all of his changed circumstances; (2) he did not qualify for asylum based on the proof he provided; (3) he did not establish his entitlement to restriction on remova l or protection under the CAT; and (4) he failed to meet the re quirements for a remand in light of his- 6 - wife’s pending Petition for Alien Relative, b ecause due process protections apply to that petition. A This court generally has jurisdiction un der 8 U.S.C. § 1252(a)(1) to review a final order of removal. See Sosa-Val enzuela v. Holder, 692 F.3d 1103, 1108 (10th Cir. 2012). And pursu ant to § 1252(a)(2)(B)(ii), “[t]his court generally has jurisdiction to review the de nial of an asylum request.” Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234 (10th Ci r. 2003), superseded by st atute on other grounds, as stated in Diallo v. Gonzales, 447 F.3d 12 74, 1281 (10th Cir. 2006). In the present matter, however, we lack juri sdiction to consider either of petitioner’s arguments related to the denial of his asylum claim. First, we lack jurisdiction to consid er petitioner’s challenge to the BIA’s determination that his asylum applicat ion was untimely. See Diallo, 447 F.3d at 1281. An application for asylum must be “filed within 1 year af ter the date of the alien’s arrival in th e United States.” 8 U.S.C. § 1158(a)(2)(B). “Notwithstanding this one year time limit, an alien’s asylum application ‘may be considered . . . if the alien demonstrates to the sa tisfaction of the Attorney Ge neral . . . the existence of changed circumstances which materially affect the applican t’s eligibility for asylum.’” Ferry v. Gonzales, 457 F. 3d 1117, 1129 (10th Cir. 2006) (quoting § 1158(a)(2)(D)). But “[t]he statute further provides th at ‘no court shall have jurisdiction to review any determinati on of the Attorney General under . . .- 7 - § 1158(a)(2).’” Id. at 1129-30 (brackets omitted) (quoting § 11 58(a)(3)). Petitioner does not challenge the BIA’s decision based on “constitutional claims or questions of law” (the latter referring to questions of statutory constructi on), which might fall within our jurisdiction under § 1252( a)(2)(D). See Diallo, 447 F.3d at 1281 (quotation omitted). In the absence of such reviewable arguments, “[w]e have interpreted § 1158(a)(3) litera lly to mean that federal c ourts lack jurisdiction to review a determination related to the time liness of an asylum application.” Id. (quotation omitted). Petitioner’s argument that the BIA impr operly failed to consider all of the changes in his circumstances “is a challenge to an exercise of discretion that remains outside our scope of review.” Ferry, 457 F. 3d at 1130 (collecting cases). We also lack jurisdiction to review the BIA’s disc retionary determinati on that the changed circumstances it did consid er (petitioner’s remarriage a nd conversion to the Mormon Church) did not excuse Arthur’s delay in filing his asylum application. See id. at 1129-30. In addition, petitioner failed to exhaust his administrative remedies regarding his argument to this court by not ra ising the “same specif ic legal theory to the BIA” in his administrativ e appeal. See Garcia-Carba jal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010). We therefore lack juri sdiction to consider it on that ground as well. See Sidabutar v. Gonzales, 503 F.3d 1116, 1118 (10th Cir. 2007). As a result, we also lack jurisdiction to consider Arthur’s challenge to the alternative denial of his as ylum claim on the merits beca use we could not order any- 8 - related relief. See Ekasin ta v. Gonzales, 415 F.3d 1188, 1191 (10th Cir. 2005). Petitioner urges us to reach th e merits in light of our d ecision in Ba v. Mukasey, 539 F.3d 1265 (10th Cir. 2008), but his reliance on Ba is misp laced. Although the IJ in Ba found that the asylum application was untimely and also failed on the merits, the BIA chose to decide the administrative app eal in that case solely on the merits. See id. at 1268. Accordingly, we reviewed Ba ’s challenges to the BIA’s decision on the merits. See id. at 1268-71. In contrast, the IJ and the BI A in the instan t case denied petitioner’s asylum claim both as untimely and for failure to meet his burden of proof. “[I]f there are two a lternative grounds for a decisi on and we lack jurisdiction to review one, it would be beyond our Article III judicial power to review the other” because our opinion “could not affect the final order’s validity and so would be advisory only.” Ekasinta, 415 F.3d at 1191.
B Arthur challenges the BIA’s decision that he failed to meet the legal standards for restriction on removal and relief unde r the CAT. We find his argument so superficially developed as to be waived. See Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1128 n.6 (10th Cir. 1999). “[W]e routinel y have declined to consider arguments that are not raised, or are inad equately presented, in an appellant’s opening brief.” Bronson v. Swensen, 500 F.3d 1099, 1104 (10t h Cir. 2007). Petitioner sets out basic le gal standards for restric tion on removal and relief under the CAT, then merely asserts in one short paragraph that he met his burden of- 9 - proof under those standards. The Federa l Rules of Appellate Procedure, however, require the argument section of an appe llant’s brief to include “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.” Fed. R. App. P. 28(a)(8)(A). Petitioner does not cite or discuss any of the record evidence in his one-paragraph argument, or any cases beyond the most basic points of law c oncerning restriction on removal and the CAT. This is inadequate under Rule 28, and we conclude that petitioner has waived his challenge to the BIA’s denial of restri ction on removal and relief under the CAT. C Finally, Arthur argues that the BIA e rred in denying his motion to remand his removal proceedings to the IJ until his wife’s Petition for Alien Relative is decided. We conclude that petitioner failed to exha ust his administrative remedies as to the argument he makes on appeal. Relying on a Ninth Circuit decisi on, Ching v. Mayorkas, 725 F.3d 1149 (9th Cir. 2013), Arthur contends that due process protections apply to his wife’s Petition for Alien Relative because he and hi s wife meet the statutory and regulatory requirements for that petition, and that he should be allowed to remain in the United States until it is approved. Petitioner, however, never raised a due process argument to the BIA in his motion to remand or amended motion to remand. Although the Ching decision was not issued until August 7, 2013, which was after the BIA entered its order in the case at bar, the decision was issued befo re expiration of the thirty- 10 - days allowed for petitioner to file a motion to reconsider. See 8 C.F.R. § 1003.2(b)(2). Petitioner’s failure to ra ise his due process argument in a timely motion to reconsider deprives us of jurisdiction to consider it. Sidabutar , 503 F.3d at 1122 (this court lacked jurisdiction over two issues raised for the first time in this court because “[t]hese two claims should ha ve been brought before the BIA in the first instance through a motion to reconsider or reopen” under 8 C.F.R. § 1003.2); see also Wei v. Mukasey, 545 F. 3d 1248, 1251 (10th Cir. 2008) (noting that under 8 U.S.C. § 1229a(c)(6) and 8 C.F.R. § 1003.2(b), an al ien may file “a motion to reconsider (because of alleged e rrors in the BIA’s analysis)”).
III The petition for review is DISMISSED IN PART and DENIED IN PART

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Entered for the Court

Carlos F. Lucero Circuit Judge