Abayomi Ogunbode v. Merrick Garland ( 2023 )


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  •                               NOT FOR PUBLICATION                        FILED
    UNITED STATES COURT OF APPEALS                        JAN 24 2023
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ABAYOMI EMMANUEL OGUNBODE,                       No.   17-72373
    Petitioner,                      Agency No. A209-159-241
    v.
    MEMORANDUM*
    MERRICK B. GARLAND, Attorney
    General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted January 18, 2023**
    Before:      GRABER, PAEZ, and NGUYEN, Circuit Judges.
    Abayomi Emmanuel Ogunbode, 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 applications for
    asylum, withholding of removal, and protection under the Convention Against
    *
    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).
    Torture (“CAT”), and his request for remand. Our jurisdiction is governed by
    
    8 U.S.C. § 1252
    . We review for substantial evidence the agency’s factual findings.
    Conde Quevedo v. Barr, 
    947 F.3d 1238
    , 1241 (9th Cir. 2020). We review the
    denial of a motion to remand for abuse of discretion. Movsisian v. Ashcroft, 
    395 F.3d 1095
    , 1098 (9th Cir. 2005). We review de novo claims of due process
    violations in immigration proceedings. Simeonov v. Ashcroft, 
    371 F.3d 532
    , 535
    (9th Cir. 2004). We deny in part and dismiss in part the petition for review.
    Substantial evidence supports the agency’s determination that Ogunbode
    was firmly resettled in South Africa before arriving in the United States. See
    
    8 U.S.C. § 1158
    (b)(2)(A)(vi); Garland v. Ming Dai, 
    141 S. Ct. 1669
    , 1677 (2021)
    (the agency may credit part of a witness’s testimony without accepting it all); Aden
    v. Wilkinson, 
    989 F.3d 1073
    , 1079-80 (9th Cir. 2021) (firm resettlement standard
    described); 
    8 C.F.R. § 1208.15
     (definition of firm resettlement). Ogunbode is
    therefore ineligible for asylum.
    In his opening brief Ogunbode does not raise, and therefore waives, any
    challenge to the BIA’s dispositive determination that he waived challenge to the
    IJ’s denial of withholding of removal. See Lopez-Vasquez v. Holder, 
    706 F.3d 1072
    , 1079-80 (9th Cir. 2013) (issues not specifically raised and argued in a
    party’s opening brief are waived). To the extent Ogunbode challenges the merits
    of his withholding of removal claim, we lack jurisdiction to consider it. See
    2                                      17-72373
    Barron v. Ashcroft, 
    358 F.3d 674
    , 677-78 (9th Cir. 2004) (petitioner must exhaust
    issues or claims in administrative proceedings below). Thus, Ogunbode’s
    withholding of removal claim fails.
    Substantial evidence supports the agency’s denial of CAT protection
    because Ogunbode 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
    Aden v. Holder, 
    589 F.3d 1040
    , 1047 (9th Cir. 2009).
    The BIA did not abuse its discretion in denying Ogunbode’s request to
    remand where he failed to provide new evidence. See Angov v. Lynch, 
    788 F.3d 893
    , 897 (9th Cir. 2015).
    Ogunbode’s claim that the BIA violated his right to due process fails
    because he has not shown error. See Padilla-Martinez v. Holder, 
    770 F.3d 825
    ,
    830 (9th Cir. 2014) (“To prevail on a due-process claim, a petitioner must
    demonstrate both a violation of rights and prejudice.”). To the extent Ogunbode
    contends that the IJ violated his right to due process, we lack jurisdiction to
    consider it. See Barron, 
    358 F.3d at 677-78
    . We also lack jurisdiction to consider
    Ogunbode’s unexhausted contentions that the IJ failed to consider and excluded
    evidence, and that he was persecuted and fears harm in South Africa. See 
    id.
    The temporary stay of removal remains in place until the mandate issues.
    PETITION FOR REVIEW DENIED in part; DISMISSED in part.
    3                                      17-72373