United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 29, 2005
Charles R. Fulbruge III
Clerk
No. 04-60610
Summary Calendar
OLUWAFEMI ADEBOLA KYKOYI,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A28 327 914
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Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Oluwafemi Adebola Kukoyi, a native and citizen of Nigeria
seeks review of the BIA’s denial of his request for discretionary
relief pursuant to former § 212(c) of the Immigration and
Naturalization Act. As we do not have jurisdiction, we dismiss
the petition.
Kukoyi pleaded guilty in 1987 to sexually molesting his
step-daughter. Adjudication was deferred and he was placed on
probation for ten years. The offense of which Kukoyi was
convicted constitutes sexual abuse of a minor, see United States
*
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this opinion should not be published and is not precedent except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.
No. 04-60610
-2-
v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000), which is
an aggravated felony under the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA). See 8 U.S.C.
§ 1101(a)(43)(A); United States v. Rayo-Valdez, 302 F.3d 314,
315-16 (5th Cir. 2002). Accordingly, we do not have jurisdiction
to review his petition. See 8 U.S.C. § 1252(a)(2)(C); Nehme v.
INS, 252 F.3d 415, 420 (5th Cir. 2001).
We decline to consider Kukoyi’s assertion that he is not an
alien. He admitted in the removal proceedings that he was
neither a citizen nor national of the United States, and he
contested his status for the first time in his reply brief. See
Goonsuwan v. Ashcroft, 252 F.3d 383, 390 n.13 (5th Cir. 2001);
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). We
similarly do not consider the documents he provided as they were
not part of the record, see Goonsuwan, 252 F.3d at 390 n.15, and
which, in any event, do not demonstrate that he is a United
States national.
We reject Kukoyi’s argument that the current definition of
aggravated felony does not apply to his 1987 conviction. See
8 U.S.C. § 1101(a)(43); Alfarache v. Cravener, 203 F.3d 381, 384
(5th Cir. 2000). Further, his deferred adjudication constituted
a conviction for purposes of IIRIRA. See Moosa v. INS, 171 F.3d
994, 1005 (5th Cir. 1999).
DISMISSED.