Tayo Ogunbanke v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAYO OLUGBOYEGA OGUNBANKE, No. 18-72596
Petitioner, Agency No. A024-195-380
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2021**
Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.
Tayo Olugboyega Ogunbanke, a native and citizen of Nigeria, petitions pro
se for review of the Board of Immigration Appeals (“BIA”) order dismissing his
appeal from an immigration judge’s (“IJ”) decision denying his application for
withholding of removal and relief under the Convention Against Torture (“CAT”).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo the
determination that a conviction is an aggravated felony, Diego v. Sessions, 857
F.3d 1005, 1011 (9th Cir. 2017), and we review for abuse of discretion the
agency’s conclusion that an offense constitutes a particularly serious crime,
Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015). We review
for substantial evidence the agency’s factual findings. Zehatye v. Gonzales, 453
F.3d 1182, 1184-85 (9th Cir. 2006). We review de novo claims of due process
violations in immigration proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th
Cir. 2014). We deny in part and dismiss in part the petition for review.
The agency did not err in concluding that Ogunbanke’s conviction under
18 U.S.C. § 1029(a)(3) was an aggravated felony, where the offense involves fraud
and Ogunbanke was ordered to pay restitution in excess of $450,000. See 8 U.S.C.
§ 1101(a)(43)(M)(i) (defining aggravated felony as including an offense that
“involves fraud or deceit in which the loss to the victim or victims exceeds
$10,000”); see also Nijhawan v. Holder, 557 U.S. 29, 40-43 (2009) (concluding
that “the monetary threshold applies to the specific circumstances surrounding an
offender’s commission of a fraud and deceit crime” and that the agency did not err
by looking to sentencing-related materials to determine the amount of loss).
Because Ogunbanke received a six-year sentence, the agency did not err in
concluding that his offense was also a particularly serious crime that rendered him
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ineligible for withholding of removal. See 8 U.S.C. § 1231(b)(3)(B) (an applicant
who has been convicted of an aggravated felony and sentenced to a term of
imprisonment of at least five years “shall be considered to have committed a
particularly serious crime”); Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1305 (9th
Cir. 2015) (noting that an “aggravated felony” conviction resulting in a sentence of
“at least 5 years” in prison constitutes a “particularly serious crime,” rendering a
non-citizen ineligible for withholding of removal). We reject as unsupported by
the record Ogunbanke’s contention that the BIA failed to consider his arguments
concerning his conviction under 18 U.S.C. § 1029(a)(3).
Substantial evidence supports the agency’s denial of deferral of removal
under CAT because Ogunbanke failed to show it is more likely than not he would
be tortured by or with the consent or acquiescence of the government if returned to
Nigeria. See Garcia-Milian v. Holder, 755 F.3d 1026, 1033-35 (9th Cir. 2014)
(concluding that petitioner did not establish the necessary “state action” for CAT
relief). We reject as unsupported by the record Ogunbanke’s contention that the
agency failed to consider evidence or otherwise erred in its analysis of his claim.
The agency did not err or violate Ogunbanke’s right to due process by not
addressing his arguments concerning asylum. See Ortiz-Alfaro v. Holder, 694 F.3d
955, 956-57 (9th Cir. 2012) (explaining that, where a non-citizen subject to a
reinstated removal order seeks relief, the IJ “can only consider the . . . application
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for withholding of removal, not asylum”). Ogunbanke’s contentions that the IJ or
BIA otherwise violated due process fail. See Padilla-Martinez v. Holder, 770 F.3d
825, 830 (9th Cir. 2014) (requiring error to prevail on a due process claim).
We lack jurisdiction to review Ogunbanke’s contentions concerning the final
removal order entered on May 8, 2000. See Villa-Anguiano v. Holder, 727 F.3d
873, 877 (9th Cir. 2013) (the statutory reinstatement provision “specifically bars
relitigation of the merits of the reinstated removal order”).
We lack jurisdiction to review the BIA's denial of sua sponte reopening,
where Ogunbanke has not raised a legal or constitutional error. See Bonilla v.
Lynch, 840 F.3d 575, 588 (9th Cir. 2016) (“[T]his court has jurisdiction to review
Board decisions denying sua sponte reopening for the limited purpose of reviewing
the reasoning behind the decisions for legal or constitutional error.”).
Ogunbanke’s arguments concerning his criminal convictions, the sentences
imposed, and the effectiveness of counsel during his criminal proceedings are not
properly before this court. See Ramirez-Villalpando v. Holder, 645 F.3d 1035,
1041 (9th Cir. 2011) (a collateral attack on a criminal conviction is not properly
considered in a petition for review of a BIA decision).
To the extent Ogunbanke argues that he received ineffective assistance of
counsel during immigration proceedings, we lack jurisdiction to consider the
argument. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court
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lacks jurisdiction to review claims not presented to the agency). We also lack
jurisdiction to consider his contentions concerning relief under former INA
§ 212(c), 8 U.S.C. § 1182(c), and adjustment of status. See id.PETITION FOR REVIEW DENIED, in part; DISMISSED in part.
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