Aaron Ekeke-R v. Jefferson Sessions , 696 F. App'x 315 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 23 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AARON O. EKEKE-R, AKA Craig No. 11-73685
Christensen Richards, AKA Aaron Ekeke,
AKA Aaron O. Ekeke, AKA Eric Ekeke Agency No. A020-197-801
Richards, AKA Christian Richards, AKA
Craig Erick Richards, AKA Eric Richards,
AKA Eric C. Richards, AKA Erick MEMORANDUM*
Richards, AKA Erik Richards, AKA Erik
Craig Richards, AKA Joseph Richards
Ekeke,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 8, 2015
Submission Vacated May 13, 2015
Resubmitted August 23, 2017
Pasadena, California
Before: PREGERSON, TALLMAN, and NGUYEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Aaron Ekeke-R petitions for review of the Board of Immigration Appeals’
(BIA) denial of his motion to reopen removal proceedings to apply for asylum,
withholding of removal, and protection under the Convention Against Torture
(CAT). We dismiss the petition in part and deny it in part.
1. We lack jurisdiction to review the BIA’s determination that Ekeke-R is
statutorily ineligible for asylum because he was convicted of an aggravated felony.
See 8 U.S.C. § 1252(a)(2)(C). We therefore dismiss the petition to the extent that
it challenges the resolution of Ekeke-R’s asylum claim.
2. We retain jurisdiction over the petition to the extent that it challenges the
resolution of Ekeke-R’s claims for withholding of removal and protection under
CAT because, with regard to these claims, the BIA denied his motion to reopen
“on the merits, for failure to demonstrate the requisite factual grounds for relief,
rather than in reliance on the [aggravated felony] conviction.” Agonafer v.
Sessions, 859 F.3d 1198, 1202 (9th Cir. 2017) (quoting Pechenkov v. Holder, 705
F.3d 444, 448 (9th Cir. 2012)).
3. The BIA did not abuse its discretion in denying Ekeke-R’s motion to
reopen removal proceedings. See Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.
2004). Ekeke-R did not submit evidence demonstrating a material change in
circumstances in Nigeria for people with HIV/AIDS. See 8 C.F.R.
§ 1003.2(c)(3)(ii). He also did not show prima facie eligibility for either
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withholding of removal or protection under CAT. Although he presented evidence
that discrimination against people with HIV/AIDS exists in Nigeria, he failed to
demonstrate that “either the government or . . . persons or organizations which the
government [was] unable or unwilling to control” were responsible for this
persecution. Reyes-Reyes v. Ashcroft, 384 F.3d 782, 788 (9th Cir. 2004) (citation
and quotation marks omitted); see also Silaya v. Mukasey, 524 F.3d 1066, 1073
(9th Cir. 2008) (denying a petition for relief under CAT because the petitioner had
not demonstrated that, more likely than not, she would be tortured at the instigation
of, or with the acquiescence of, the government).
PETITION DISMISSED IN PART AND DENIED IN PART.
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