Henry Anekwu v. William Barr, U. S. Atty Gen ( 2020 )

Case: 18-60469 Document: 00515428805 Page: 1 Date Filed: 05/26/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-60469 May 26, 2020
Lyle W. Cayce
HENRY C. ANEKWU, Clerk
Petitioner
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of Order of the
Board of Immigration Appeals
BIA No. A087 618 083
Before OWEN, Chief Judge, and SOUTHWICK and OLDHAM, Circuit Judges.
PER CURIAM:*
The petitioner claims that he should have been returned to Canada
under an agreement between the United States and Canada rather than
ordered removed to his home country of Nigeria. The immigration judge (“IJ”)
and the Board of Immigration Appeals (“BIA”) disagreed. We DISMISS in part
and DENY the remainder of the petition for review.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-60469 Document: 00515428805 Page: 2 Date Filed: 05/26/2020
No. 18-60469
FACTUAL AND PROCEDURAL BACKGROUND
Henry Anekwu is a native and citizen of Nigeria. He moved to Canada
in 1995, where he married, had two children, and later divorced. On December
23, 2009, he was extradited to the United States from Canada for prosecution
for mail fraud, wire fraud, and telemarketing fraud against the elderly. To
allow Anekwu’s prosecution, the Department of Homeland Security (“DHS”)
paroled him into the United States. He was convicted and sentenced to 108
months of imprisonment. United States v. Anekwu, 695 F.3d 967, 970–72 (9th
Cir. 2012).
In May 2017, while Anekwu was still in prison, the DHS initiated the
expedited removal process under 8 U.S.C. § 1225(b)(1), charging Anekwu with
inadmissibility based on his applying for admission without an immigrant visa.
After being transferred to DHS custody, Anekwu expressed fear of returning
to Nigeria, causing him to be referred to an asylum officer for a credible fear
interview. Anekwu asserted that he feared being killed upon his return to
Nigeria because he was gay. The asylum officer determined Anekwu was
credible, and the DHS issued a Notice to Appear. That notice indicates that
the expedited removal proceedings were vacated pursuant to 8 C.F.R. § 208.30,
which provides that an alien with a credible fear of persecution or torture will
receive a full consideration of his claims in proceedings under 8 U.S.C. § 1229a.
Anekwu requested deferral of removal under the Convention Against
Torture. He suggested that the Safe Third Country Agreement between the
United States and Canada might apply. The IJ found by a preponderance of
the evidence that the Agreement did not apply because Anekwu had not sought
asylum immediately at the land border port of entry. The IJ also denied relief
under the Convention Against Torture, finding that Anekwu was not credible.
The BIA dismissed Anekwu’s appeal, and Anekwu filed a timely petition for
review.
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No. 18-60469
DISCUSSION
Although appellate review of determinations about the Safe Third
Country Agreement is limited, 8 U.S.C. § 1158(a)(3), our jurisdiction extends
to pure questions of law. § 1252(a)(2)(D). Anekwu argues that the IJ and BIA
lacked jurisdiction to review whether the Safe Third Country Agreement
applied. Anekwu did not present this argument to the BIA, so we lack
jurisdiction to consider it. Lopez-Dubon v. Holder, 609 F.3d 642, 644 (5th Cir.
2010). Regardless, the IJ had jurisdiction under 8 C.F.R. § 1240.11(g)(1).
Anekwu also argues that the IJ and BIA erred in determining he was not
subject to the Safe Third Country Agreement. Agreement Between the
Government of the United States of America and the Government of Canada
for Cooperation in the Examination of Refugee Status Claims from Nationals
of Third Countries, Canada–U.S., art. 4, Dec. 5, 2002, T.I.A.S. No. 04-1229,
https://2009-2017.state.gov/s/l/38616.htm. Under the Safe Third Country
Agreement, an alien claiming refugee status at a “land border port of entry” is
returned to the country from where he was coming, unless an exception
applies. Id. at art. 4, ¶ 1. The “country of last presence” adjudicates any
refugee-status claims, rather than the country the alien tried to enter. Id.
The United States may not consider an alien’s application for asylum,
withholding of removal, or protection under the Convention Against Torture if
the alien may be removed pursuant to the Safe Third Country Agreement. 8
U.S.C. § 1158(a)(2)(A). Even though Anekwu was an arriving alien originally
in expedited removal proceedings, he did not make a claim of refugee status at
a “land border port of entry.” Accordingly, he was not subject to the Agreement.
Anekwu also contends that the IJ erred in designating Nigeria as the
country of removal. Because Anekwu did not exhaust his administrative
remedies by presenting this issue to the BIA, we lack jurisdiction over this
claim. Lopez-Dubon, 609 F.3d at 644.
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Last, Anekwu questions the constitutional validity of his underlying
criminal conviction. An alien may not collaterally attack his criminal
conviction in immigration proceedings, and we will not consider the claim.
Singh v. Holder, 568 F.3d 525, 528 (5th Cir. 2009).
Insofar as we have jurisdiction, the petition for review is DENIED. In
all other respects, the petition for review is DISMISSED.
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