NOT FOR PUBLICATION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
2 

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, 
3 

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.