                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                          May 16, 2014

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
ADAM SSENSAMBA DDUNGU,
a/k/a Sensamba Adam Ddunga,

             Petitioner,

v.                                                          No. 13-9598
                                                        (Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,

             Respondent.


                            ORDER AND JUDGMENT*


Before HOLMES, ANDERSON, and BALDOCK, Circuit Judges.


      Adam Ssensamba Ddungu, a native and citizen of Uganda proceeding pro se,

petitions for review of the denial of his applications for asylum, restriction on

removal (formerly known as withholding of removal), relief under the Convention

Against Torture (CAT), and cancellation of removal. Our jurisdiction arises under

8 U.S.C § 1252(a). We dismiss in part and deny review in part.

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                     Background

       Mr. Ddungu’s family was wealthy when he was younger; his father sold cattle

to the government and later had a tannery. Mr. Ddungu testified that his father and

the family changed political affiliation and religion as necessary when regimes

changed. Ultimately, however, his father fell out of favor and the government

confiscated the business. Mr. Ddungu entered the United States in November 1991

on a one-year business visa. He testified that he intended to sue the Ugandan

government over the loss of the business and then go home, but he never left. His

father, mother, and numerous siblings and half-siblings remained in Uganda.

      In 1998, Mr. Ddungu was detained on criminal charges in New Jersey. After

spending 570 days in custody awaiting trial, in 2000 he pleaded guilty to one count of

misdemeanor theft by deception in violation of N.J. Stat. Ann. § 2C:20-4. He states

that he pleaded guilty only because he was unable to pay the assessed bail and had

spent such a long time in custody. He did not receive any prison time for this

conviction. Also in 2000, a Ugandan magistrate issued an arrest warrant charging

Mr. Ddungu with treason. Mr. Ddungu testified that he did not know why the arrest

warrant was issued. He surmised it might be connected to certain business activities

with Ugandans and/or his legal problems in New Jersey.1



1
        In his reply brief, Mr. Ddungu suggests that the arrest warrant was connected
to his family’s political activities. Our review, however, is limited to the evidence in
the administrative record. See 8 U.S.C. § 1252(b)(4)(A).


                                          -2-
      In 2006, Mr. Ddungu was served with a notice of removal. In March 2007, he

filed for asylum, restriction on removal, and CAT relief. In a comprehensive written

order, the IJ found Mr. Ddungu generally credible, but nevertheless he denied relief

on all grounds.2

      Issuing its own order, the BIA adopted the IJ’s decision with further discussion

of particular issues. It affirmed the denial of asylum because Mr. Ddungu had not

filed within the one-year limitations period and had not established any statutory

exception to the limitations period. It affirmed the denial of restriction on removal

because Mr. Ddungu failed to show that he had a definite political position, as he and

his family changed positions as necessary to accommodate changing regimes. It also

held that he failed to show past persecution or that any problems he fears in the

future would be on account of his political opinion. The BIA affirmed the denial of

CAT relief because Mr. Ddungu had not shown that it was more likely than not that

he would be tortured by or with the acquiescence of a Ugandan government official.

And finally, it noted that for the first time on appeal, Mr. Ddungu requested

cancellation of removal. It denied the request on the ground that the New Jersey

conviction made him statutorily ineligible for cancellation.



2
        Initially Mr. Ddungu sought relief for political opinion, religion, and
membership in a particular social group, but the IJ considered only political opinion
because he did not present any argument or evidence regarding the other grounds for
relief. See Admin. R. at 102 n.1. Mr. Ddungu did not challenge before the BIA this
narrowing of the issues. We therefore focus solely on political opinion.


                                         -3-
                                        Analysis

       Although we will “limit [the] grounds for affirmance to those articulated in

the BIA’s final order,” we may also consider the IJ’s more complete explanation of

the same grounds. Barrera-Quintero v. Holder, 699 F.3d 1239, 1244 (10th Cir.

2012). We review the BIA’s factual findings for substantial evidence, and its legal

conclusions de novo. Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir. 2009).

Under the substantial-evidence test, “factual findings are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.” Dallakoti v.

Holder, 619 F.3d 1264, 1267 (10th Cir. 2010) (internal quotation marks omitted);

see also 8 U.S.C. § 1252(b)(4)(B).

I.    Due Process

      Mr. Ddungu makes two general arguments in the nature of due process. First,

he asserts that the BIA did not receive the entire administrative record, and he

identifies certain evidence he submitted that, he believes, would have changed the

agency’s decision. But all but one of those documents are in the record before this

court, which has been certified as the true, correct, and complete administrative

record.3 There are no grounds to believe that the BIA did not have the complete

administrative record. Second, in his reply brief, he states that the transcript of his


3
       The exception is the 2009 Department of State report on Uganda. The record
does contain the 2006, 2007, 2008, and 2010 reports, however, and there is no
indication that the 2009 report actually was submitted to the IJ or that it would add
anything to the information in the other reports.


                                          -4-
hearing had “so many missing word[s], statements, wrong added words, twisted

names, plus false information to discredit his petitioner’s testimony.” Reply Br. at 9.

He cannot raise this argument before this court, however, because it does not appear

that he raised it before the BIA. See Akinwunmi v. INS, 194 F.3d 1340, 1341

(10th Cir. 1999) (per curiam). And generally we do not hear arguments first raised in

a reply brief. See Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000).

II.   Asylum

      The BIA agreed with the IJ that Mr. Ddungu was ineligible for asylum because

he did not timely file his asylum application and did not establish an exception to the

one-year filing deadline. Mr. Ddungu asserts that the BIA erred in applying the

deadline to him because there was no filing deadline when he entered this country.

He also asserts that he did demonstrate changed or extraordinary circumstances.

      This court has jurisdiction to review the denial of asylum for untimeliness only

if the petitioner presents a constitutional claim or a question of law. See Diallo v.

Gonzales, 447 F.3d 1274, 1281 (10th Cir. 2006); 8 U.S.C. § 1252(a)(2)(D). As an

issue of statutory interpretation, the argument about the applicability of the filing

deadline qualifies as a question of law. See Diallo, 447 F.3d at 1282. However, it is

meritless. Although there was no asylum filing deadline when Mr. Ddungu entered

the United States, the Illegal Immigration Reform and Immigrant Responsibility Act

of 1996 (IIRIRA) created one, and it did not except aliens who entered before

IIRIRA’s effective date of April 1, 1997. As an alien already present on that date,


                                          -5-
Mr. Ddungu had one year from April 1, 1997, to file for asylum. See 8 C.F.R.

§§ 208.4(a)(2)(ii), 1208.4(a)(2)(ii). His 2007 application therefore was untimely.

       The argument that Mr. Ddungu qualifies for an exception to the statutory

deadline based on changed or extraordinary circumstances is couched in the brief as a

question of law, but really it “is a challenge to an exercise of discretion that remains

outside our scope of review.” Ferry v. Gonzales, 457 F.3d 1117, 1130 (10th Cir.

2006). Accordingly, we lack jurisdiction to consider this argument. See id.

III.   Restriction on Removal4

       Restriction on removal requires showing “that the alien’s life or freedom

would be threatened in [his] country because of [his] race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C.

§ 1231(b)(3)(A); see also Dallakoti, 619 F.3d at 1267-68. The BIA agreed with the

IJ that Mr. Ddungu failed to establish that any harm that had or would come to him

would be “because of” his political opinion, stating, “[t]he respondent and his family,

his father in particular, adapted to the political party in power in Uganda at any given

time in an effort to maintain a business relationship with the government. . . . The



4
       In a supplemental filing, Mr. Ddungu asserts that the IJ discussed an incorrect
charge in his analysis of restriction on removal. He is mistaken. The IJ cited
Immigration and Nationality Act § 241(b)(3)(B)(ii) not as a basis of removability, but
to determine whether the New Jersey conviction rendered Mr. Ddungu ineligible for
restriction on removal. The IJ resolved this issue in favor of Mr. Ddungu. Even if
this argument had been presented to the BIA, it would provide no grounds for
remanding this matter to the agency.


                                          -6-
respondent did not testify to any political opinion on either his or his father’s part

that would lead to problems in Uganda.” Admin. R. at 3.

      This determination is supported by substantial evidence, and no reasonable

adjudicator would be compelled to come to a contrary determination. Mr. Ddungu

testified that the family transferred from one political party to another as regimes

changed in Uganda, and that while he lived there, he changed his own political

affiliation as his father directed. He now considers himself a member of the UPC

party, but he is open to changing his affiliation. Although he has been politically

active since being in the United States, he also indicated his involvement was not

significant. As for the arrest warrant issued by a Ugandan magistrate, Mr. Ddungu

testified that he did not know why it was issued, unless it had to do with his business

activities and/or the New Jersey legal proceedings. Thus, there is no record evidence

to support a conclusion that the arrest warrant was politically motivated. In short,

Mr. Ddungu’s failure to establish a nexus between any harm that has or that may

come to him and a protected ground supports the BIA’s denial of restriction on

removal. See Dallakoti, 619 F.3d at 1268.

IV.   CAT Relief

      “To receive the protections of the CAT, an applicant must demonstrate ‘it is

more likely than not that he or she would be tortured if removed to the proposed

country of removal.’” Ritonga v. Holder, 633 F.3d 971, 978 (10th Cir. 2011)

(quoting 8 C.F.R. § 1208.16(c)(2)). For CAT relief, a petitioner need not show “that


                                           -7-
torture will occur on account of a statutorily protected ground.” Id. (internal

quotation marks omitted). Instead, he must establish he will be treated so severely

“as to constitute torture,” “by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an official capacity.” Id.

(citation and internal quotation marks omitted). The BIA held that Mr. Ddungu

failed to establish that it is more likely than not that he would be tortured by anyone

in an official capacity. “Although [he] has submitted a warrant for his arrest, he has

presented very little other evidence that the government of Uganda has any ongoing

interest in him or that he would face torture.” Admin. R. at 4.

      Asserting that it is the current Ugandan government that he fears, Mr. Ddungu

points to the arrest warrant, the fact that one of his brothers disappeared after being

removed from the United States to Uganda, and the record evidence regarding

Uganda’s poor human rights practices. The record does reflect that persons in

Uganda have been tortured. See, e.g., id. at 214, 218, 222 (2010 United States

Department of State Human Rights Report: Uganda); see also id. at 349-50 (State of

Pain: Torture in Uganda (Human Rights Watch 2004)); id. at 396 (Open Secret:

Illegal Detention and Torture by the Joint Anti-terrorism Task Force in Uganda

(Human Rights Watch 2009)). The record also reflects that Mr. Ddungu’s brother

was detained upon being returned to Uganda, with the family hiring a private

investigation firm to determine his whereabouts. But this court does not make a CAT

determination in the first instance; to grant review, we must be convinced that, on


                                           -8-
this administrative record, any reasonable adjudicator would have to conclude that it

is more likely than not that Mr. Ddungu will experience torture if removed to

Uganda. See 8 U.S.C. § 1252(b)(4)(B); Dallakoti, 619 F.3d at 1267; Ritonga,

633 F.3d at 978. We are not so convinced.

      As stated, the arrest warrant is unexplained. Further, it appears that

Mr. Ddungu’s missing brother was a member of the Allied Democratic Forces

(ADF), a rebel group engaged in armed conflict, including bombings. Mr. Ddungu is

not a member of ADF. Although his brother’s disappearance is disquieting, it does

not compel a conclusion that Mr. Ddungu is more likely than not to suffer torture.

Similarly, the record evidence regarding Uganda’s human rights practices does not

compel that conclusion. We cannot grant review of the denial of CAT relief.

V.    Cancellation of Removal

      Mr. Ddungu sought cancellation of removal before the BIA. Apparently

considering the New Jersey conviction for theft by deception to be a crime involving

moral turpitude (CIMT), the BIA held that he was statutorily ineligible for

cancellation. See Barrera-Quintero, 699 F.3d at 1243; 8 U.S.C. § 1229b(b)(1)(C).

Mr. Ddungu asserts that his conviction does not qualify as a CIMT. It is his burden

to show that the conviction does not disqualify him from eligibility for cancellation

of removal, not the government’s burden to show that it does. See Garcia v. Holder,

584 F.3d 1288, 1289-90 (10th Cir. 2009).




                                         -9-
      This court generally lacks jurisdiction to review a denial of cancellation of

removal, but a determination that a crime is a CIMT is a question of law reviewable

under § 1252(a)(2)(D). Rodriguez-Heredia v. Holder, 639 F.3d 1264, 1267 (10th Cir.

2011). Our review is de novo. Id. “To determine whether a state conviction is a

crime involving moral turpitude, we ordinarily apply the categorical approach.” Id.

Under that approach, “this court looks only to the statutory definition of the offense

and not to the underlying facts of the conviction to determine whether the offense

involves moral turpitude.” Efagene v. Holder, 642 F.3d 918, 921 (10th Cir. 2011).

“Moral turpitude refers to conduct which is inherently base, vile, or depraved,

contrary to the accepted rules of morality and duties owed between man and man,

either one’s fellow man or society in general.” Id. (internal quotation marks

omitted).

      Section 2C:20-45 provides that “[a] person is guilty of theft if he purposely

obtains property of another by deception.” Courts “repeatedly have held that ‘theft’

is a crime of moral turpitude.” Hashish v. Gonzales, 442 F.3d 572, 576 (7th Cir.

2006) (collecting cases). Moreover, the statute addresses theft by deception, which

appears to be a species of fraud. Compare N.J. Stat. Ann. § 2C:20-4 (“A person

deceives if he purposely: a. Creates or reinforces a false impression . . . ; b. Prevents

another from acquiring information which would affect his judgment of a transaction;


5
       Section 2C:20-4 was amended in 2003, but the amendments do not appear to
affect the analysis of whether Mr. Ddungu’s 2000 conviction is a CIMT.


                                          - 10 -
or c. Fails to correct a false impression which the deceiver previously created or

reinforced, or which the deceiver knows to be influencing another to whom he stands

in a fiduciary or confidential relationship.”), with Black’s Law Dictionary 731

(9th ed. 2009) (defining fraud as “[a] knowing misrepresentation of the truth or

concealment of a material fact to induce another to act to his or her detriment”).

“[W]e have followed Supreme Court precedent making it plain that crimes in which

fraud was an ingredient have always been regarded as involving moral turpitude.”

Rodriguez-Heredia, 639 F.3d at 1268 (internal quotation marks omitted). In contrast,

Mr. Ddungu has not identified any authorities that would undermine the agency’s

conclusion that a violation of § 2C:20-4 is a CIMT. Accordingly, he has not satisfied

his burden of showing that he is eligible for cancellation of removal. Cf. Garcia,

584 F.3d at 1290 (holding that alien had not proven his eligibility for cancellation of

removal where the record of conviction was ambiguous, even though alien was not to

blame for the ambiguity).

                                      Conclusion

      Mr. Ddungu’s motion for leave to proceed on appeal without prepayment of

costs or fees is granted. The request to review the denial of asylum is dismissed in

part for lack of jurisdiction. The remainder of the petition for review is denied.


                                                  Entered for the Court


                                                  Bobby R. Baldock
                                                  Circuit Judge

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