Sunday Kunkushi v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 18, 2020
• Docket: 19-71502
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 16 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SUNDAY KAYODE KUNKUSHI, No. 19-71502

Petitioner, Agency No. A207-565-782

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted July 14, 2020**

Before: TROTT, SILVERMAN, and NR SMITH, Circuit Judges.

Sunday Kayode Kunkushi, 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

asylum, withholding of removal, and relief under the Convention Against Torture

(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review de novo

* 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). questions of law and we review for substantial evidence the agency’s factual

findings. Guan v. Barr, 925 F.3d 1022, 1031 (9th Cir. 2019). We review for abuse

of discretion the agency’s particularly serious crime determination. Avendano-

Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015). We deny the petition

for review.

8 U.S.C. § 1158(a)(2)(B) requires an asylum applicant to demonstrate “by

clear and convincing evidence that the application has been filed within 1 year

after the date of the alien’s arrival in the United States.” Kunkushi’s date of arrival

was February 17, 2014. He did not apply for asylum until July 24, 2018, after he

was convicted by his guilty plea of an offense involving illegal trafficking in a

controlled substance. The IJ concluded that his untimely application made him

ineligible for asylum.

On appeal to the BIA, Kunkushi’s only response in this regard was that “the

one year ban is no longer applicable as of 2018.” He offered no claim or argument

that he had a legitimate excuse for his late application. The BIA affirmed the IJ’s

decision, saying Kunkushi “has not demonstrated that he timely filed an

application for asylum nor established that such tardy filing is legally excused.”

In his brief to us, he now says that he was “eligible for an exception to the

[one year] rule” based on the “circumstantial exceptions permitted by the

[Immigration and Nationality] Act.” Because he did not exhaust this claim with

2 19-71502 the BIA, we lack jurisdiction to address it. 8 U.S.C. § 1252(d)(1); Barron v.

Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

Even if we were to conclude that Kunkushi did exhaust this issue, which we

do not, we would conclude nevertheless that he had no cognizable excuse for his

tardy application.

The IJ pointed out that Kunkushi had entered the United States on a tourist

visa on five separate occasions between April 2012 and February 2014 without

applying for asylum.1 His explanation for the first four entries, which the IJ did

not find worthy of credit, was that his family was in South Africa and his wife

changed her mind and wanted to return to South Africa. As for his most recent

entry, Kunkushi’s explanation was that he was coming to the United States to meet

someone and he married a United States citizen. The IJ noted, however, that the

U.S. Citizenship and Immigration Services of the Department of Homeland

Security (“USCIS”) doubted the validity of this marriage and gave them an

opportunity to submit additional evidence, but they did not. Kunkushi then

withdrew his application apparently because his spouse abandoned him. The

USCIS notified him to depart the United States as soon as possible. Instead of

departing, he was apprehended in Arizona trafficking in a controlled substance.

1 The IJ noted also in connection with his claim of fear of returning to Nigeria that he had been able, without incident, to renew his passport four times at Nigerian embassies.

3 19-71502 Parenthetically, Kunkushi did not claim to the BIA that his failed attempt to

secure an alien relative petition amounted to a legal excuse to excuse the tardy

filing of his asylum application. He brought up these facts only to contest the IJ’s

adverse credibility finding.

In any event, the IJ correctly determined that a second reason bars Kunkushi

from eligibility for asylum as well as from withholding of removal under

§ 241(b)(3) of the Immigration and Nationality Act (“Act”), and withholding of

removal under the CAT: his conviction for a “particularly serious crime.” See 8

U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii); 8 C.F.R. §§ 1208.14(c),

1208.16(d)(2). An applicant convicted of a “particularly serious crime” is

statutorily barred from these forms of relief.

Kunkushi was convicted on May 11, 2018 in the Superior Court for the State

of Arizona of attempted transportation of marijuana for sale, a class 3 felony in

violation of Ariz. Rev. Stat. §§ 13-3405(A)(4), 13-3401, 13-701, 13-702, and 13-

801. When confronted by the IJ with his plea agreement listing these offenses, he

admitted he signed it and that he was apprehended driving a vehicle transporting

44 pounds of marijuana. Even though Kunkushi denied making the statement, the

IJ credited the arresting officer’s Supplemental Report that Kunkushi told him that

“he was being paid $2,000 to transport it.”

In Matter of Y-L-, 23 I. & N. Dec. 270 (Op. Att’y Gen. 2002), the Attorney

4 19-71502 General created a strong presumption that a drug trafficking offense resulting in a

sentence of less than five years is a “particularly serious crime” under 8 U.S.C.

§ 1231(b)(3)(B). We approved the Attorney General’s strong presumption in

Miguel-Miguel v. Gonzales, 500 F.3d 941, 949 (9th Cir. 2007). This presumption

can be overcome only in the “extraordinary,” “extenuating” and “compelling”

case. Id. at 946. Matter of Y-L- articulates certain factors that “at a minimum”

must be present to overcome this strong presumption, including a very small

quantity of substance, a modest amount of money involved, and peripheral

involvement of the alien. Miguel-Miguel, 500 F.3d at 946.

The IJ concluded (1) that Kunkushi’s conviction was for a “particularly

serious crime,” and (2) that because of the amount of marijuana involved,

Kunkushi’s direct involvement in the offense, and his remuneration of $2000, the

Attorney General’s presumption had not been rebutted. Accordingly, the IJ

determined that Kunkushi was eligible only for deferral of removal under the CAT,

and not any of the other forms of relief he requested.

The BIA affirmed the IJ’s “alternative determination.” The record amply

supports this conclusion.

The BIA then proceeded to the only remaining issue, Kunkushi’s eligibility

for deferral of removal under the CAT. 8 C.F.R. § 1208.17. The IJ determined

that the record did not indicate that it is more likely than not that Kunkushi will

5 19-71502 face torture upon his return to Nigeria. The BIA agreed, indicating correctly that

an IJ’s “finding that a future event will occur is fact-finding subject to review for

clear error.” Substantial evidence in the record supports the IJ’s and the BIA’s

determinations.

Kunkushi’s motion to stay his removal (Docket Entry No. 4) is denied.

PETITION FOR REVIEW DENIED.

6 19-71502