* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 7 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

ARVIDAS LEONO PUTAUSKAS; VIRGINIA JONO PUTAUSKIENE; SIMONAS ARVIDO PUTAUSKAS,

Petitioners,

v. JOHN ASHCROFT,

Respondent. No. 03-9500 (INS Nos. A76 798 846; A76 798 847; A76 798 848) (Petition for Review)

ORDER AND JUDGMENT *

Before O’BRIEN and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 The immigration judge also denied petitioners’ requ est for withholding

of removal under the United Nations Convention Agai nst Torture. Petitioners waived this issue because they did not raise it before the BIA. See Rivera-Zurita v. INS , 946 F.2d 118, 120 n.2 (10th Cir. 1991).

2 Petitioners’ appellate briefing has been less than adequate. They failed to include a statement of the issues presented for rev iew or a summary of the argument as required by Fed. R. App. P. Rule 28 and10th Cir. R. 28. Without the aid of these road maps, petitioners’ argument is le ss than clear. In addition, they chose not to file a reply brief that might have ass isted in clarifying the issues for the court. -2- Petitioners Arvidas Putauskas, Virginia Putauskiene , and Simonas Putauskas petition for review of an order of the Board of Imm igration Appeals (BIA) summarily affirming the immigration judge’s denial of petitioners’ request for asylum, for withholding of removal under the Immigr ation and Nationality Act (INA), and for adjustment of status. 1 Petitioners contend that the immigration judge erred in finding that they had failed to time ly file their petition for asylum. Petitioners appear also to challenge the denial of their withholding of removal under the INA and their adjustment of status. 2We dismiss the petition for review for asylum and adjustment of status. We deny the p etition for withholding of removal and affirm the BIA’s decision. I. Asylum Respondent argues that this court lacks jurisdictio n to review petitioners’ challenge to the immigration judge’s decision that the asylum petition was not timely filed. We agree. This court held recently that we lack jurisdiction to-3-

review a determination related to the timeliness of an asylum application.
See Tsevegmid v. Ashcroft , 336 F.3d 1231, 1234-35 (10th Cir. 2003). Statuto ry support for this holding comes from 8 U.S.C. § 1158 (a)(3) as explained in the Tsevegmid opinion: Section 1158(a)(3) expressly provides that the courts do not have “jurisdiction to review any determination” on wheth er the alien filed his application within a year of entry or whether “ changed circumstances” exist “which materially affect the applicant’s eligibility for asylum or extraordinary circumstanc es relating to the delay in filing an application.” Tsevegmid, 336 F.3d at 1235. The immigration judge ruled here that the petitione rs did not file their asylum applications within the applicable one-year deadline and they did not meet any of the exceptions to the one-year rule. This c ourt has no jurisdiction to review this ruling. We therefore do not address the subst ance of petitioners’ arguments concerning timeliness. II. Withholding of Removal Section 1158(a)(3) applies only to asylum requests and does not strip this court of its jurisdiction to review a denial of withholding of removal. See Tsevegmid , 336 F.3d at 1235. Because the BIA summarily affi rmed the immigration judge’s decision, this court reviews th e judge’s analysis as if it were the BIA’s. See id. “The BIA’s findings of fact are conclusive unless the record-4-

demonstrates that ‘any reasonable adjudicator wouldbe compelled to conclude to the contrary.’” Id. (citations omitted). Because petitioners admit that they were not persec uted in the past, they must establish that “it is more likely than not that [they] would be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion upon removal to that country.” See 8 C.F.R. § 208.16(b)(2). Courts have held that this requires petitioners to show “a clear probability of persecution” which is a higher standard than that for asylum. See Krastev v. INS , 292 F.3d 1268, 1271 (10th Cir. 2002). Petitioners testified before the immigration judge that they would be persecuted if they were re moved to Lithuania because of having been in the United States and because they w ould be considered to be returning to Lithuania with a considerable amount of money. See Admin. R. at 56. Another witness testified that the police cannot pr otect the people in Lithuania and that some of the authorities are corrupt. She beli eves that the petitioners would be in danger if they returned to Lithuania because of the length of time they have been in the United States. See id. at 58. The immigration judge found that there did not “app ear to be a clear nexus between the harm which the respondents fear and one of the protected grounds. [They] are required to show that they would suffer harm because of their race, religion, nationality, membership in a particular s ocial group or political opinion.”-5-

See id. at 63-64. The immigration judge found also that while the petitioners established that there is some possibility that the y would be harmed if they returned to Lithuania, they did not go so far as to show that the harm is “more likely than not to occur.” Id. at 65. Accordingly, the immigration judge held th at petitioners had not met the higher burden of proof for establishing entitlement to withholding of removal. After reviewing the briefs and the record, we canno t conclude that a reasonable adjudicator would be compelled to rejectthe immigration judge’s findings of fact. III. Adjustment of Status In April 1998, petitioners were informed that they were among those randomly selected and registered for further consid eration in the DV-99 diversity immigrant lottery program for fiscal year 1999 (Oct ober 1, 1998 to September 30, 1999). Admin. R. at 238A. Selection did not guarantee petitioners a visa because the number of applicants selected was greater than the number of visas available. See id. Based upon their selection to the lottery, petition ers applied for an adjustment of status under 8 U.S.C. § 1255. Under this section, an alien’s status may be adjusted in the Attorney General’s discretio n if the alien files an application, the alien is eligible to receive a vis a and is admissible for permanent residence, and an immigrant visa is immediately available. See id. § 1255(a).-6-

But an alien “who is in unlawful immigration status on the date of filing the application or who has failed (other than through n o fault of his own or for technical reasons) to maintain continuously a lawfu l status since entry” is ineligible for adjustment. Id. § 1255(c). Petitioners’ initial request for adjustment was den ied. In July 1999, petitioners’ counsel renewed petitioners’ adjustment application. On September 29, 1999, petitioners’ renewed adjustment applicati on was denied because petitioners had been out of status since April 1, 1 996 (the first day after their B-2 visitor’s visas expired), and were therefore inelig ible. On October 1, 1999, the diversity visa lottery expired of its own terms. In the proceedings before the immigration judge, pe titioners argued that the denial of the adjustment of status application was improper and that the application should have been granted. The immigrat ion judge noted that he would not be able to approve an adjustment of status base d on the 1999 diversity visa lottery due to the fact that those visa numbers wer e no longer available. Admin. R. at 51. He found that he did not have any jurisd iction to fashion equitable remedies or rectify any alleged error. Id. at 52. As a result, he did not express an opinion as to whether or not the petitioners would have been granted adjustment of status if he had been authorized to entertain the application. Id. In their brief, petitioners concede that “the Immigration Judge ess entially ruled correctly that he-7-

did not have the authority to fashion an equitable remedy.” Pet. Br. at 11; see also id. at 21 (“Petitioners do not dispute the ImmigrationJudge’s conclusion that he lacked the authority to fashion equitable remedies. ”). Because petitioners concede the correctness of the immigration judge’s decision and they do not dispute his conclusion that there is no remedy for their request, this court dismisses the petition as moot. “Generally an appeal should be dismissed as moot when events occur that prevent th e appellate court from granting any effective relief.” Phelps v. Hamilton , 122 F.3d 885, 891 (10th Cir. 1997) (quotation omitted). The lottery visa offere d to petitioners was only good until the last day of the fiscal year in which the application was submitted or September 30, 1999. See 22 C.F.R. § 42.33(a)(1) (“The eligibility for a [lottery] visa . . . ceases at the end of the fisca l year in question. Under no circumstances may a consular officer issue a visa o r other documentation to an alien after the end of the fiscal year during whichan alien possesses diversity visa eligibility.”). Because there are no longer any visas available under the 1999 lottery, there is no relief that this court co uld grant to petitioners.-8-

Accordingly, we DISMISS the petition for review of the asylum application for lack of jurisdiction and we DISMISS the petitio n for review of the adjustment of status claim as moot. We DENY the petition for review of the withholding of removal claim and we AFFIRM the BIA’s decision.

Entered for the Court

Bobby R. Baldock Circuit Judge