Balogun v. Gonzales

126 F. App'x 874

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 18, 2005
• Docket: No. 03-74046
• Status: Published

Opinion

MEMORANDUM

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Petitioner Adekunle Balogun (“Balogun”), a native of Nigeria, seeks review of the Board of Immigration Appeals’s (“BIA’s”) affirmance of an Immigration Judge’s (“IJ’s”) order of removal based on Balogun’s presence in the United States without having been admitted or paroled, and his conviction of a crime involving moral turpitude. Balogun also seeks review of the IJ’s and BIA’s denial of asylum, withholding of removal under the INA and under the Convention Against Torture (“CAT”), deferral under CAT, adjustment of status under INA § 245(a), waiver of inadmissibility under INA § 212(h), and voluntary departure.

The IJ found that Balogun’s conviction for credit card fraud, resulting in over $97,000 in loss to his victims, was a crime of moral turpitude. Balogun’s failure to raise this issue in his brief to the BIA constitutes both a waiver of and a failure to exhaust his administrative remedies. Balogun’s crime was one of moral turpitude. The crime was also an aggravated felony under 8 U.S.C. § 1101(a)(43)(M), because it involved fraud in which the loss to the victims exceeded $10,000. It was also a particularly serious crime. Balogun also failed to demonstrate that it is more likely than not that he will be subjected to torture if removed to Nigeria. Accordingly, Balogun is ineligible for asylum, withholding under the INA and under CAT, and deferral under CAT.

The BIA did not err in ordering removability based in part on Balogun’s presence in the United States without having been admitted or paroled. Because Balogun was not admitted, he is ineligible for adjustment of status under INA § 245(a). Finally, this court does not have jurisdiction over the BIA’s discretionary denial of waiver under INA § 212(h), or its denial of voluntary departure.¹

PETITION DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . Balogun’s Request to Take Judicial Notice and his Motion to Supplement the Record are denied as moot.