Tayo Ogunbanke v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 22, 2021
• Docket: 18-72596
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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

2 18-72596 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

3 18-72596 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

4 18-72596 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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