                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       AUG 23 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

AARON O. EKEKE-R, AKA Craig                     No.    11-73685
Christensen Richards, AKA Aaron Ekeke,
AKA Aaron O. Ekeke, AKA Eric Ekeke              Agency No. A020-197-801
Richards, AKA Christian Richards, AKA
Craig Erick Richards, AKA Eric Richards,
AKA Eric C. Richards, AKA Erick                 MEMORANDUM*
Richards, AKA Erik Richards, AKA Erik
Craig Richards, AKA Joseph Richards
Ekeke,

                Petitioner,

 v.

JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                        Argued and Submitted May 8, 2015
                        Submission Vacated May 13, 2015
                          Resubmitted August 23, 2017
                              Pasadena, California

Before: PREGERSON, TALLMAN, and NGUYEN, Circuit Judges.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Aaron Ekeke-R petitions for review of the Board of Immigration Appeals’

(BIA) denial of his motion to reopen removal proceedings to apply for asylum,

withholding of removal, and protection under the Convention Against Torture

(CAT). We dismiss the petition in part and deny it in part.

      1. We lack jurisdiction to review the BIA’s determination that Ekeke-R is

statutorily ineligible for asylum because he was convicted of an aggravated felony.

See 8 U.S.C. § 1252(a)(2)(C). We therefore dismiss the petition to the extent that

it challenges the resolution of Ekeke-R’s asylum claim.

      2. We retain jurisdiction over the petition to the extent that it challenges the

resolution of Ekeke-R’s claims for withholding of removal and protection under

CAT because, with regard to these claims, the BIA denied his motion to reopen

“on the merits, for failure to demonstrate the requisite factual grounds for relief,

rather than in reliance on the [aggravated felony] conviction.” Agonafer v.

Sessions, 859 F.3d 1198, 1202 (9th Cir. 2017) (quoting Pechenkov v. Holder, 705

F.3d 444, 448 (9th Cir. 2012)).

      3. The BIA did not abuse its discretion in denying Ekeke-R’s motion to

reopen removal proceedings. See Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.

2004). Ekeke-R did not submit evidence demonstrating a material change in

circumstances in Nigeria for people with HIV/AIDS. See 8 C.F.R.

§ 1003.2(c)(3)(ii). He also did not show prima facie eligibility for either


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withholding of removal or protection under CAT. Although he presented evidence

that discrimination against people with HIV/AIDS exists in Nigeria, he failed to

demonstrate that “either the government or . . . persons or organizations which the

government [was] unable or unwilling to control” were responsible for this

persecution. Reyes-Reyes v. Ashcroft, 384 F.3d 782, 788 (9th Cir. 2004) (citation

and quotation marks omitted); see also Silaya v. Mukasey, 524 F.3d 1066, 1073

(9th Cir. 2008) (denying a petition for relief under CAT because the petitioner had

not demonstrated that, more likely than not, she would be tortured at the instigation

of, or with the acquiescence of, the government).

      PETITION DISMISSED IN PART AND DENIED IN PART.




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