Kithongo v. Garland, No. 21-2662 (7th Cir. 2022)
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Kithongo, born in Kenya, alleges he and his family endured hardships during his childhood there, including being harassed for political and religious reasons, and he watched a police officer murder his friend during political unrest. Kithongo assumed a new name and began working for a company of acrobats. At age 19, Kithongo was admitted into the U.S. on a P1 nonimmigrant performer visa and overstayed his period of authorization. He is 31 years old and married with children. Kithongo has been convicted of misdemeanors for battery, theft, and marijuana possession. Most recently, he was convicted in Indiana for conspiring with others to rob three victims, two of whom were children. Kithongo knowingly accompanied his co‐conspirators to the scene of the crime, likely aware that one of them was carrying a firearm. The robbery was violent.
Kithongo was sentenced to one year in prison and charged with removability under 8 U.S.C. 1227(a)(1)(B), (a)(2)(A)(iii) for having an aggravated felony conviction. Kithongo applied for withholding of removal and relief under the Convention Against Torture (CAT). He denied that his conviction constituted an aggravated felony and applied for adjustment of status. The IJ ordered Kithongo removed; the BIA affirmed. The Seventh Circuit dismissed his appeals with respect to adjustment of status and withholding for lack of jurisdiction and denied the appeal concerning CAT relief on exhaustion grounds.
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