Festus Anwuli v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 18, 2021
• Docket: 18-72201
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 18 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FESTUS ANWULI, AKA Frank Udoka, No. 18-72201

Petitioner, Agency No. A093-448-637

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted May 14, 2021** San Francisco, California

Before: HAWKINS and MILLER, Circuit Judges, and MORRIS,*** District Judge.

Festus Anwuli seeks review of an order of the Board of Immigration

Appeals dismissing his appeal from an immigration judge’s denial of his

* 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). *** The Honorable Brian M. Morris, United States District Judge for the District of Montana, sitting by designation. application for asylum, withholding of removal, and protection under the

Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252(a)(1),

and we deny the petition.

1. The Board did not abuse its discretion in determining that Anwuli was

convicted of a particularly serious crime that rendered him ineligible for asylum

and withholding of removal. 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). Our

review is limited to “whether ‘the agency relied on the appropriate factors and

proper evidence.’” Flores-Vega v. Barr, 932 F.3d 878, 884 (9th Cir. 2019)

(quoting Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015)).

Anwuli acknowledges that he was convicted of conspiracy to import

approximately 200 grams of heroin and was sentenced to four years of

imprisonment. We assume, as the Board did, that the conviction occurred in 1988.

For purposes of asylum, “an alien who has been convicted of an aggravated

felony shall be considered to have been convicted of a particularly serious crime”

and is therefore ineligible for asylum. 8 U.S.C. § 1158(b)(2)(B)(i). Conspiring to

commit “illicit trafficking in any controlled substance” is an aggravated felony. 8

U.S.C. § 1101(a)(43)(B), (U). Anwuli argues that his 1988 conviction predates the

enactment of the aggravated-felony bar. But the aggravated-felony bar and related

statutory definitions apply retroactively, regardless of the date of conviction. INS v.

St. Cyr, 533 U.S. 289, 318–19 (2001); Feroz v. INS, 22 F.3d 225, 227 (9th Cir.

2 1994). Thus, Anwuli’s 1988 conviction is an aggravated felony, rendering him

ineligible for asylum.

For withholding of removal, an aggravated felony automatically constitutes

a particularly serious crime if “the alien has been sentenced to an aggregate term of

imprisonment of at least 5 years.” 8 U.S.C. § 1231(b)(3)(B). Although Anwuli was

sentenced to only four years of imprisonment, the Board acted within its discretion

when it determined that he was convicted of a particularly serious crime

“notwithstanding the length of sentence imposed.” Id. In reaching this conclusion,

the Board conducted a case-specific analysis under Matter of Frentescu, 18 I. & N.

Dec. 244 (B.I.A. 1982). Because the Board “conduct[ed] its own review of the

evidence and law,” our review is limited to the Board’s decision, so it is irrelevant

whether the immigration judge may have incorrectly applied a presumption of

seriousness, as Anwuli contends. Mairena v. Barr, 917 F.3d 1119, 1123 (9th Cir.

2019) (per curiam) (quoting Zumel v. Lynch, 803 F.3d 463, 471 (9th Cir. 2015)).

The Board did not err in applying Frentescu. First, Anwuli contends that the

Board impermissibly engaged in factfinding. But “application of the Frentescu

factors to the underlying facts is a legal conclusion and not a factfinding

endeavor.” Perez-Palafox v. Holder, 744 F.3d 1138, 1145 (9th Cir. 2014). Here,

the Board relied exclusively on the facts found by the immigration judge in

conducting its analysis. Second, Anwuli contends that the Board failed to consider

3 his testimony that “he cooperated with law enforcement officials to help prosecute

the primary culprits behind the drug smuggling offense and received a grant of

voluntary departure.” The Board expressly considered the length of Anwuli’s

sentence, and Anwuli testified that the sentencing judge considered his cooperation

in determining the length of the sentence. The Board was not further required to

discuss every factor that may have influenced Anwuli’s sentence. Cf. Frentescu, 18

I. & N. Dec. at 247; Villegas Sanchez v. Garland, 990 F.3d 1173, 1183 (9th Cir.

2021) (Board “need not discuss each piece of evidence” (quoting Gonzalez-

Caraveo v. Sessions, 882 F.3d 885, 894 (9th Cir. 2018))).

2. Substantial evidence supports the Board’s denial of relief under the

Convention Against Torture. Anwuli does not contest that he was not subjected to

past torture, and he points to no evidence that the Board ignored in reaching its

determination that Anwuli failed to demonstrate the requisite likelihood of future

torture. Neither the country conditions evidence nor the unrelated killing of

Anwuli’s brother by Boko Haram, both of which the Board considered, compels a

contrary conclusion. See Garcia-Milian v. Holder, 755 F.3d 1026, 1034–35 (9th

Cir. 2014); Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per

curiam).

PETITION DENIED.