Carlos Isaias Sunum v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS ISAIAS SUNUM,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 16-73785
Agency No. A205-971-782
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 8, 2018
Pasadena, California
Before: SCHROEDER and NGUYEN, Circuit Judges, and SIMON,** District
Judge.
Carlos Isaias Sunum, a native and citizen of Guatemala, petitions for review
of the Department of Homeland Security’s (“DHS”) final administrative removal
order. We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D). See Gomez-Velazco
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
FILED
SEP 30 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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v. Sessions, 879 F.3d 989, 992 (9th Cir. 2018). Reviewing de novo, see Zuniga v.
Barr, 934 F.3d 1083, 1085 (9th Cir. 2019), we deny the petition.
1. A removal order does not become final until, at the earliest, the time to
seek administrative review of the order has passed. See Abdisalan v. Holder, 774
F.3d 517, 523 (9th Cir. 2015) (en banc). Sunum had “10 calendar days from
service of the Notice of Intent . . . to file a response” in which he could, among
other things, request withholding of removal thereby triggering further proceedings
and opportunities for administrative review. 8 C.F.R. § 238.1(c)(1). Since Sunum
was served with the notice of intent on October 31, 2016, the administrative
removal order became final on November 10, 2016. His petition for review in this
court, filed on November 29, 2016, was therefore timely. See 8 U.S.C.
§ 1252(b)(1).
2. Sunum need not exhaust his administrative remedies with respect to
purely legal questions, which DHS could not have considered in the expedited
proceedings at issue here. See 8 C.F.R. § 238.1; Barron v. Ashcroft, 358 F.3d 674,
678 (9th Cir. 2004) (“[T]he principle of exhaustion may exclude certain
constitutional challenges that are not within the competence of administrative
agencies to decide.”).
3. Sunum’s crime of conviction, California Penal Code section 245(a)(4), is
categorically a crime of violence. See United States v. Grajeda, 581 F.3d 1186,

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1192 (9th Cir. 2009) (“If the conviction is based on ‘force likely to produce great
bodily injury,’ such force must necessarily go beyond the ‘least touching,’ and
represents ‘actual force’ that is violent in nature.”); see also United States v.
Vasquez-Gonzalez, 901 F.3d 1060, 1068 (9th Cir. 2018). Therefore, it is an
aggravated felony that renders Sunum deportable. See 8 U.S.C.
§ 1227(a)(2)(A)(iii).
4. Even if Sunum suffered a due process violation, he fails to show
prejudice—as is required to prevail. See Gomez-Velazco, 879 F.3d at 993. Sunum
admitted that he has no fear of persecution or torture should he be removed to
Guatemala. Consequently, he is ineligible for relief from removal. See 8 C.F.R.
§§ 208.31(c), 238.1(f)(3).
PETITION DENIED.

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