Case: 10-60309 Document: 00511389763 Page: 1 Date Filed: 02/22/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 22, 2011
No. 10-60309
Summary Calendar Lyle W. Cayce
Clerk
KINGSLEY DAYO, also known as Kingsley Pedersoli, also known as Dayo
Kingsley, also known as Kingsley Dayo Pedersoli, also known as Kingsley J.
Dayo, also known as Darryl Lamont Gates,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petitions for Review of an Order of the
Board of Immigration Appeals
BIA No. A094-002-838
Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Kingsley Dayo, a native and citizen of Nigeria, petitions this court to
review the decision of the Board of Immigration Appeals (BIA) affirming the
decision of the immigration judge denying his application for asylum,
withholding of removal, and protection under the Convention Against Torture
(CAT). Dayo contends that he gave credible testimony establishing that he
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 10-60309 Document: 00511389763 Page: 2 Date Filed: 02/22/2011
No. 10-60309
suffered past persecution in Nigeria and fears future persecution if he is
removed to Nigeria. He also asserts that his due process rights were violated
during his removal proceedings because the notice to appear did not charge him
properly and because the transcript of his hearing was incomplete.
An alien’s application for asylum must be filed within one year of the
alien’s arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). The immigration
judge held that Dayo’s asylum application was not timely filed. The BIA agreed
with the immigration judge’s untimeliness finding. Accordingly, this court lacks
jurisdiction to review the BIA’s decision affirming the immigration judge’s
factual finding that Dayo’s asylum application was untimely. See Nakimbugwe
v. Gonzales, 475 F.3d 281, 284 & n.1 (5th Cir. 2007). A review of the record
demonstrates that the BIA’s decision affirming the immigration judge’s adverse
credibility finding is supported by substantial evidence. See Wang v. Holder, 569
F.3d 531, 538 (5th Cir. 2009); Vidal v. Gonzales, 491 F.3d 250, 254 (5th Cir.
2007). Furthermore, to prevail on his due process claims, Dayo must make a
prima facie showing that he was eligible for relief from removal. See Anwar v.
I.N.S., 116 F.3d 140, 144 (5th Cir. 1997). In light of his incredible testimony,
Dayo has failed to do so. See id.
In a supplemental brief, Dayo asserts that his due process rights were
violated by “ICE Officer Davis” who notified the Nigerian government about
Dayo’s removal proceedings. He asserts that the officer’s actions have now made
the Nigerian government aware of his existence and have placed him in danger.
As the Government argues, Dayo failed to exhaust this issue before the BIA.
Accordingly, this court does not have jurisdiction to consider the issue. See Roy
v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004). Accordingly, Dayo’s petition for
review of the BIA’s decision upholding the immigration judge’s decision
regarding Dayo’s applications for asylum, withholding of removal, and protection
under the CAT is denied.
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No. 10-60309
Dayo also petitions this court to review the BIA’s decision denying his
motion to reopen on the basis of newly discovered evidence. However, Dayo does
not challenge the BIA’s reasons for denying his motion to reopen. He does not
explain how the affidavits he sought to introduce constituted newly discovered
evidence in his petition. Thus, he has waived the issue. See Soadjede v.
Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003). Further, Dayo’s attempt to reassert
his argument surrounding Officer Davis’s alleged actions are unexhausted and
barred from this court’s review. See Roy, 389 F.3d at 137.
Accordingly, Dayo’s petitions for review are DENIED. Any outstanding
motions for stay of removal are DENIED as well.
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