NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 16 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SUNDAY KAYODE KUNKUSHI, No. 19-71502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 On appeal to the BIA, Kunkushi’s only response in this regard was that “the one year ban is no longer applicable as of 2018.”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 ...
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