Board “need not discuss each piece of evidence” (quoting Gonzalez- Caraveo v. Sessions, 882 F.3d 885, 894 (9th Cir. 2018))
How later courts described this case
- Board “need not discuss each piece of evidence” (quoting Gonzalez- Caraveo v. Sessions, 882 F.3d 885, 894 (9th Cir. 2018))
Written by the judges who cited it.
The 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NOT FOR PUBLICATION FILED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
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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.
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