Nyynkpao Banyee v. Pamela Bondi

Summary

The United States Court of Appeals for the Eighth Circuit denied Nyynkpao Banyee’s petition for review of the Board of Immigration Appeals’ dismissal of his appeal from a removal order. The court held that Banyee’s North Dakota robbery conviction qualifies categorically as an attempted-theft aggravated felony under the Immigration and Nationality Act, making him ineligible for cancellation of removal. The court also declined to reconsider Banyee’s objections to his immigration detention because that issue had previously been decided.

Holdings

1. Because Banyee was removable based on an offense covered by 8 U.S.C. § 1227(a)(2)(A)(iii), the court could review only constitutional and legal challenges to the final order of removal.
2. North Dakota robbery necessarily includes attempted theft and therefore falls within the attempted-theft aggravated-felony provisions of 8 U.S.C. § 1101(a)(43)(G) and (U).
3. North Dakota's robbery statute is not unambiguously broader than the generic federal definition of attempted theft; its alleged application to theft by deception or consensual takings presents, at most, theoretical possibilities.
4. Because Banyee failed to demonstrate a realistic probability that North Dakota would apply its robbery statute to theft by deception or other nongeneric conduct, his robbery conviction was an attempted-theft aggravated felony and he was statutorily ineligible for cancellation of removal.
5. Banyee could not relitigate his objections to immigration detention because the Eighth Circuit had already decided the issue in the same cause.

Questions Presented

1. Whether the Eighth Circuit had jurisdiction to review Banyee's challenge to the final removal order under 8 U.S.C. § 1252(a)(2)(C).
2. Whether North Dakota's robbery statute categorically includes attempted theft within the aggravated-felony definition in 8 U.S.C. § 1101(a)(43)(G) and (U).
3. Whether North Dakota's robbery statute is facially broader than the generic federal definition of theft because it allegedly encompasses theft by deception or consensual takings.
4. Whether Banyee satisfied the realistic-probability test by identifying actual North Dakota cases applying the robbery statute to nongeneric conduct.
5. Whether Banyee could relitigate his objections to immigration detention.

Disposition

other