IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60309

Summary Calendar

KINGSLEY DAYO, also known as Kingsley Pedersoli, also known as Dayo

Kingsley, also known as Kingsley Dayo Pedersoli, also known as Kingsley J.

Dayo, also known as Darryl Lamont Gates,

Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

Respondent

Petitions for Review of an Order of the

Board of Immigration Appeals

BIA No. A094-002-838

Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.

PER CURIAM:

*

Kingsley Dayo, a native and citizen of Nigeria, petitions this court to

review the decision of the Board of Immigration Appeals (BIA) affirming the

decision of the immigration judge denying his application for asylum,

withholding of removal, and protection under the Convention Against Torture

(CAT). Dayo contends that he gave credible testimony establishing that he

United States Court of Appeals

Fifth Circuit

F I L E D

February 22, 2011

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 10-60309

suffered past persecution in Nigeria and fears future persecution if he is

removed to Nigeria. He also asserts that his due process rights were violated

during his removal proceedings because the notice to appear did not charge him

properly and because the transcript of his hearing was incomplete.

An alien’s application for asylum must be filed within one year of the

alien’s arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). The immigration

judge held that Dayo’s asylum application was not timely filed. The BIA agreed

with the immigration judge’s untimeliness finding. Accordingly, this court lacks

jurisdiction to review the BIA’s decision affirming the immigration judge’s

factual finding that Dayo’s asylum application was untimely. See Nakimbugwe

v. Gonzales, 475 F.3d 281, 284 & n.1 (5th Cir. 2007). A review of the record

demonstrates that the BIA’s decision affirming the immigration judge’s adverse

credibility finding is supported by substantial evidence. See Wang v. Holder, 569

F.3d 531, 538 (5th Cir. 2009); Vidal v. Gonzales, 491 F.3d 250, 254 (5th Cir.

2007). Furthermore, to prevail on his due process claims, Dayo must make a

prima facie showing that he was eligible for relief from removal. See Anwar v.

I.N.S., 116 F.3d 140, 144 (5th Cir. 1997). In light of his incredible testimony,

Dayo has failed to do so. See id.

In a supplemental brief, Dayo asserts that his due process rights were

violated by “ICE Officer Davis” who notified the Nigerian government about

Dayo’s removal proceedings. He asserts that the officer’s actions have now made

the Nigerian government aware of his existence and have placed him in danger.

As the Government argues, Dayo failed to exhaust this issue before the BIA.

Accordingly, this court does not have jurisdiction to consider the issue. See Roy

v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004). Accordingly, Dayo’s petition for

review of the BIA’s decision upholding the immigration judge’s decision

regarding Dayo’s applications for asylum, withholding of removal, and protection

under the CAT is denied.

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No. 10-60309

Dayo also petitions this court to review the BIA’s decision denying his

motion to reopen on the basis of newly discovered evidence. However, Dayo does

not challenge the BIA’s reasons for denying his motion to reopen. He does not

explain how the affidavits he sought to introduce constituted newly discovered

evidence in his petition. Thus, he has waived the issue. See Soadjede v.

Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003). Further, Dayo’s attempt to reassert

his argument surrounding Officer Davis’s alleged actions are unexhausted and

barred from this court’s review. See Roy, 389 F.3d at 137.

Accordingly, Dayo’s petitions for review are DENIED. Any outstanding

motions for stay of removal are DENIED as well.

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