Iramavese Oluwatosin Ajayi v. U.S. Atty. General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12950 ELEVENTH CIRCUIT
FEBRUARY 5, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK

Agency No. A027-634-996

IRAMAVESE OLUWATOSIN AJAYI,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(February 5, 2010)

Before BLACK, MARCUS and FAY, Circuit Judges.

PER CURIAM:

Iramavese Oluwatosin Ajayi, a native and citizen of Nigeria, seeks review of
the Board of Immigration Appeals’s (“BIA”) order dismissing his appeal from the

immigration judge’s (“IJ”) denial of his application for asylum and withholding of

removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158(a)

and 1231(b)(3), and for relief under the United Nations Convention Against

Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

(“CAT”), 8 C.F.R. § 208.16(c). We issued jurisdictional questions for the parties

to address, including whether we have jurisdiction to hear Ajayi’s petition because

of his criminal convictions, see INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C), and,

if § 242(a)(2)(C) applies, whether any constitutional challenges or questions of law

raised by Ajayi are reviewable. After careful review, we dismiss the petition in

part and deny it in part.

Ajayi, a native and citizen of Nigeria, was admitted into the United States on

or about July 6, 1986, as a non-immigrant visitor, and his status was later adjusted

to that of a lawful permanent resident on November 5, 2002. On May 3, 2007, the

Department of Homeland Security (“DHS”) served Ajayi with a Notice to Appear

(“Notice”), charging him with removability under INA § 237(a)(2)(A)(ii) and (iii),

8 U.S.C. § 1227(a)(2)(A)(ii) and (iii), because, after being admitted into the United

States, he was convicted of (1) two crimes involving moral turpitude, (2) an

aggravated felony relating to illicit trafficking of a controlled substance, and (3) an

aggravated felony related to a theft offense in which a prison term of at least one
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year was imposed. According to the Notice, Ajayi was convicted in Florida state

court of grand theft, in violation of Fla. Stat. § 812.014, on October 20, 2004, and

possession of cocaine with intent to sell, in violation of Fla. Stat. § 893.13, on July

19, 2006.

Ajayi subsequently filed an application for asylum, withholding of removal,

and CAT relief, claiming that he feared persecution, torture, and possible death on

account of his homosexuality. During his removal hearing, Ajayi testified that he

knew he was homosexual his entire life, his family and friends were aware of his

sexual orientation, and he was open about it; his sister testified that Ajayi had told

her he was a homosexual, but she had never witnessed him engaging in a

relationship with another man. After the hearing, the IJ denied Ajayi’s applications

for relief, concluding that his conviction for possession of cocaine with intent to

sell was an aggravated felony, thereby making him statutorily ineligible for

asylum. The IJ also determined that the conviction was for a “particularly serious

crime,” which renders him ineligible for withholding of removal. Finally, the IJ

found that Ajayi did not satisfy his burden of proof for CAT relief.

The BIA adopted and affirmed the IJ’s decision, finding that Ajayi was

removable as charged and denying his application for protection from removal

under CAT. More specifically, the BIA stated that it found no error in the IJ’s

determinations that (1) Ajayi’s possession with intent to sell cocaine conviction
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was an aggravated felony and a “particularly serious crime,” limiting his eligibility

for relief under CAT, and (2) Ajayi failed to establish eligibility for CAT relief

because he did not provide sufficient corroboration of his claim, supported only by

the vague testimony of Ajayi and his sister, that he was a homosexual. This appeal

followed.

When examining a petition for review, we must initially consider whether

we have subject matter jurisdiction to entertain the petition at all. Resendiz-

Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262, 1266 (11th Cir. 2004). We review

questions of subject matter jurisdiction de novo. Gonzalez-Oropeza v. U.S. Att’y

Gen., 321 F.3d 1331, 1332 (11th Cir. 2003).

Under the INA, we lack jurisdiction to review the final removal order of an

alien who is removable for having committed an “aggravated felony.” See 8

U.S.C. § 1252(a)(2)(C); 8 U.S.C. § 1227(a)(2)(A)(iii). However, we do retain

jurisdiction to determine the limited question of whether the petitioner is “(1) an

alien (2) who is removable (3) because he committed a criminal offense

enumerated in the statute.” Resendiz-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262,

1266 (11th Cir. 2004) (internal quotations and citations omitted). Moreover,

notwithstanding § 1252(a)(2)(C), we also have jurisdiction to review colorable

constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(D); Arias v. U.S.

Att’y Gen., 482 F.3d 1281, 1283-84 (11th Cir. 2007).
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 Ajayi was ordered removed because of his conviction for possession of

cocaine with intent to sell, in violation of Fla. Stat. § 893.13. Thus, it is plain

based on either of those grounds, that § 1252(a)(2)(C)’s bar to our review applies

and we may determine only whether Ajayi is a removable alien because he

committed a criminal offense enumerated in the INA. See Resendiz-Alcaraz, 383

F.3d at 1266. At Ajayi’s removal hearing, it was established that he was an alien.

Thus, we focus on Ajayi’s argument that his drug conviction does not fit under the

definition of an “aggravated felony” under the INA; we are unpersuaded.

An offense constitutes an “aggravated felony” for immigration purposes if it

involves illicit trafficking of a controlled substance, including a “drug trafficking

crime,” as defined by 18 U.S.C. § 924(c). 8 U.S.C. § 1101(A)(43)(B). A “drug

trafficking crime” is defined as any felony punishable under the Controlled

Substances Act, 21 U.S.C. § 801, et seq. 18 U.S.C. § 924(c)(2). A state drug

offense will constitute an aggravated felony, when the underlying conduct

supporting the conviction would also be considered a felony under the Controlled

Substance Act, rather than according to state law. Lopez v. Gonzales, 549 U.S. 47,

52-60 (2006). A drug offense is a felony under the Controlled Substances Act if it

is punishable by a term of imprisonment of more than one year. 21 U.S.C. §

802(44); 18 U.S.C. § 3559(a). Additionally, pursuant to the CSA, it is unlawful for

an individual to knowingly “possess with intent to manufacture, distribute, or
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dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). Possession with intent to

distribute an indeterminate amount of cocaine is punishable under the CSA by a

maximum sentence of 20 years’ imprisonment. Id. § 841(b)(1)(C). Moreover, the

record indicates that the drug offense for which Ajayi was convicted was classified

as a felony in Florida.

Contrary to Ajayi’s argument, the foregoing provisions of the INA and

Controlled Substances Act do not require a certain amount of cocaine to be

involved in order for the crime to be classified as an aggravated felony. Moreover,

a conviction under the Controlled Substance Act for Ajayi’s conduct would

constitute a felony, as possession with intent to distribute an indeterminate amount

of cocaine carries a maximum sentence of 20 years’ imprisonment. See 21 U.S.C. §

802(44); 21 U.S.C. § 841(b)(1)(C). In short, Ajayi’s state conviction for

possession of cocaine with intent to sell qualifies as a felony punishable under the

CSA. Accordingly, the IJ’s and the BIA’s determination that Ajayi had a criminal

conviction making him removable under the INA was not erroneous, and we lack

jurisdiction to review his petition.

However, we do retain jurisdiction to consider constitutional claims or

questions of law arising out of Ajayi’s removal proceedings. See INA

§ 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). Ajayi argues that the following issues

raise substantial constitutional questions or questions of law that are reviewable:
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(1) the IJ and the BIA committed legal error by applying an incorrect standard for

corroboration under the REAL ID Act; (2) the BIA erred by not applying a

rebuttable presumption of credibility on appeal where the IJ made no explicit

adverse credibility determination; (3) the IJ and the BIA erred in finding that he

had committed a “particularly serious crime” and, thus, was ineligible for

withholding of removal; and (4) the IJ and the BIA violated his due process rights

by requiring that he provide proof of his sexual orientation when such proof was

ostensibly unavailable to him. We are unpersuaded by any of these claims.

To decide this jurisdictional question, we may examine a petitioner’s claim

to the extent necessary to determine whether it presents a colorable legal or

constitutional issue. See Oguejiofor v. Att’y Gen., 277 F.3d 1305, 1308 (11th Cir.

2002) (holding that appellate jurisdiction was lacking over a petitioner’s claims

after determining that they lacked merit). Discretionary or factual determinations,

however, remain insulated from judicial review, and a petitioner may not create

jurisdiction by cloaking such issues in constitutional garb. Chacon-Botero v. Att’y

Gen., 427 F.3d 954, 957 (11th Cir. 2005). The alien applying for relief from

removal bears the burden of establishing that he satisfies the applicable eligibility

requirements. 8 U.S.C. § 1229a(c)(4)(A).

First, Ajayi does not raise a colorable legal or constitutional issue with

respect to his claim that the IJ and the BIA erred by applying an incorrect standard
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for corroboration under the REAL ID Act, thus we do not have jurisdiction to

review that claim. Under the REAL ID Act of 2005, which applies to all

applications for asylum and withholding of removal filed after May 11, 2005, an IJ

must determine whether an applicant’s “testimony is credible, is persuasive, and

refers to specific facts sufficient to demonstrate that the applicant has satisfied the

applicant’s burden of proof.” Id. § 1229a(c)(4)(B). Although uncorroborated but

credible testimony may be sufficient to satisfy the alien’s burden of proof in

establishing eligibility for relief from removal, the weaker an applicant’s

testimony, “the greater the need for corroborative evidence.” Yang v. U.S. Att’y

Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). Thus, even where an applicant or

witness proffers credible testimony, an IJ may still demand corroborative evidence,

and such evidence must be provided “unless the applicant demonstrates that [he]

does not have the evidence and cannot reasonably obtain the evidence.” 8 U.S.C. §

1229a(c)(4)(B).

Contrary to Ajayi’s suggestion, the IJ and the BIA’s demand for

corroboration does not involve a colorable question of law over which this Court

retains jurisdiction; instead, the record indicates that, in accordance with the REAL

ID Act, the IJ and BIA demanded corroborative evidence after determining that

Ajayi failed to demonstrate convincingly that such evidence was unavailable. 8

U.S.C. § 1229a(c)(4)(B). The IJ and the BIA had the discretionary power to
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request and require such information. Moreover, Ajayi’s claim merely challenges

the IJ and the BIA’s factual determination regarding the availability of

corroboration and, thus, lies beyond the purview of this Court’s jurisdiction.

See Chacon-Botero, 427 F.3d at 957 (noting that both factual and discretionary

determinations remain outside of appellate jurisdiction).

Second, Ajayi’s argument that the BIA erred by not applying a rebuttable

presumption of credibility on appeal where the IJ made no explicit adverse

credibility determination does not present a colorable question of law. In the

absence of an explicit adverse credibility determination, an applicant or witness is

entitled to “a rebuttable presumption of credibility on appeal.” Id. §

1229a(c)(4)(C). The BIA did not make an adverse credibility determination or

question the veracity of his testimony regarding his homosexuality, but rather, it

agreed with the IJ’s determination that, absent corroborative evidence, Ajayi’s

otherwise credible testimony failed to establish eligibility for relief from removal.

Although Ajayi is correct in noting that the BIA was required to employ a

rebuttable presumption of credibility, he appears to ignore the fact that credible

testimony, in and of itself, is not necessarily sufficient to establish eligibility for

relief from removal. See Yang, 418 F.3d at 1201. Because Ajayi does not present

a colorable question of law, we lack jurisdiction to consider the matter.

Third, Ajayi’s claim that the IJ and the BIA erred in finding that he had
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committed a “particularly serious crime” and, thus, was ineligible for withholding

of removal does not present a colorable question of law. An alien convicted of a

“particularly serious crime” is statutorily ineligible for withholding of removal

under either the INA or CAT. 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R. §

1208.16(d)(2). Ajayi does not contend that the IJ applied an incorrect legal

standard for “particularly serious crimes.” Instead, he effectively argues that the

agency misapplied the law by selectively ignoring evidence and making findings of

fact not supported by the record. In essence, Ajayi seeks review of the agency’s

discretionary and factual determination that his drug trafficking offense qualified

as a particularly serious crime, rendering him statutorily ineligible for withholding

of removal. See 8 U.S.C. § 1231(b)(3)(B); 8 C.F.R. § 1208.16(d)(3). As such, he

does not raise a colorable question of law over which this Court retains jurisdiction

pursuant to 8 U.S.C. § 1252(a)(2)(D).

Finally, Ajayi contends for the first time on appeal that the IJ violated his

due process rights by failing to act as an impartial arbiter. Under 8 U.S.C.

§ 1252(d)(1), however, final orders of removal are reviewable only if “the alien has

exhausted all administrative remedies available to the alien as of right.” 8 U.S.C.

§ 1252(d)(1). We have held that the exhaustion requirement is jurisdictional and

precludes review of any claim that a petitioner failed to raise before the BIA.

Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006).
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Because Ajayi did not raise the particular due process claim before the BIA, we

lack jurisdiction to consider the matter on appeal.

Because Ajayi was a convicted of an aggravated felony within the meaning

of the INA, we deny his petition for review to the extent that it challenges the

BIA’s aggravated felon determination. As for Ajayi’s remaining claims, we lack

jurisdiction to consider their merits, in as much as Ajayi has either failed to raise

them before the BIA or because they do not raise colorable questions of law or

constitutional issues.

DENIED IN PART AND DISMISSED IN PART.

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