Filed: Jul. 13, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 7-13-2005 Ogundipe v. Secretary Homeland Precedential or Non-Precedential: Non-Precedential Docket No. 03-4859 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Ogundipe v. Secretary Homeland" (2005). 2005 Decisions. Paper 861. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/861 This decision is brought to you for free and open access by
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 7-13-2005 Ogundipe v. Secretary Homeland Precedential or Non-Precedential: Non-Precedential Docket No. 03-4859 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Ogundipe v. Secretary Homeland" (2005). 2005 Decisions. Paper 861. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/861 This decision is brought to you for free and open access by ..
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
7-13-2005
Ogundipe v. Secretary Homeland
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4859
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Ogundipe v. Secretary Homeland" (2005). 2005 Decisions. Paper 861.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/861
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4859
LANRE OGUNDIPE,
Appellant
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY;
KENNETH MCELROY; U.S. IMMIGRATION AND NATURALIZATION
SERVICE, PHILADELPHIA DISTRICT
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 01-cv-04261)
District Judge: Honorable Anita B. Brody
Submitted Under Third Circuit LAR 34.1(a)
June 6, 2005
Before: AMBRO, STAPLETON and ALARCÓN * , Circuit Judges
(Opinion filed July 13, 2005 )
OPINION
*
Honorable Arthur L. Alarcón, Senior United States Circuit Judge for the Ninth
Circuit Court of Appeals, sitting by designation.
AMBRO, Circuit Judge
Lanre Ogundipe appeals1 the District Court’s decision denying his petition for writ
of habeas corpus in this immigration case. For the reasons that follow, we affirm.
I. Factual Background and Procedural History
Because we write solely for the benefit of the parties, we only briefly recount the
facts giving rise to this appeal. Ogundipe is a native and citizen of Nigeria who initially
entered the United States in December 1982 on a student visa. Following his conviction
for unauthorized use of a credit card in violation of federal law and issuing worthless
checks in violation of Louisiana law, Ogundipe was deported in November 1989.
After re-entering the United States in 1990, Ogundipe was arrested and deported a
second time. He again re-entered the United States and married his fiancee, who became
a United States citizen. In May 1997, Ogundipe filed an application to adjust his status to
that of a lawful permanent resident. In February 2000, Ogundipe was convicted of bank
fraud in violation of 18 U.S.C. § 1344. The conviction constitutes an aggravated felony
for immigration purposes under 8 U.S.C. § 1101(a)(43)(G).
In November 2000, the former Immigration and Nationality Service (“INS”)
sought to deport Ogundipe on the basis of prior deportation orders, and in February 2001
1
The REAL ID Act of 2005, Pub. L. No. 109-13 (2005), discussed below, may
convert Ogundipe’s appeal into a petition for review. For the sake of simplicity, we
nevertheless refer to this matter as an appeal. In any event, if it is deemed a petition for
review, we deny that petition.
2
the INS denied Ogundipe’s applications for adjustment of status and admission to the
United States following deportation. Ogundipe retained counsel and filed a petition for
writ of habeas corpus in the District Court.
In February 2003, the District Court appointed counsel to represent Ogundipe.
Following a telephone conference with the Court and counsel, the INS placed Ogundipe
in administrative removal proceedings pursuant to 8 U.S.C. § 1228(b) and abandoned its
attempt to reinstate his prior deportation order. In April 2003, Ogundipe filed an
amended petition for writ of habeas corpus, contending that the administrative removal
process violated certain constitutional rights and that he was eligible for various forms of
relief. In addition, the INS agreed that Ogundipe could pursue a claim for relief under the
United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (codified at 8 U.S.C. § 1231) (“CAT”).2
In October 2003, the District Court issued its decision on Ogundipe’s habeas
petition, rejecting his constitutional challenges to the administrative removal proceedings
and concluding that he is statutorily ineligible for adjustment of status. In addition, the
District Court referred Ogundipe to an asylum officer for consideration of his CAT claim.
We review his timely appeal.
Because of the Court’s action, this claim is not before us. The United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
2
Because of the Court’s action, this claim is not before us.
3
Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, implemented in the United States by the
Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112
Stat. 2681-761 (codified at 8 U.S.C. § 1231) (“CAT”).
II. Jurisdiction
Prior to May 11, 2005, when The REAL ID Act was signed into law, 8 U.S.C.
§ 1252(a)(2)(C) barred review of final orders of removal for aliens who had been
convicted of certain kinds of criminal offenses. Thus, rather than seeking review of final
orders of removal, aliens in situations like Ogundipe’s were required to seek habeas relief
in district courts. That relief was limited to “questions of constitutional and statutory
law.” Bakhtriger v. Elwood, 360 F.3d 414, 424 (3d Cir. 2004).
The REAL ID Act amended § 1252(a)(2) to repeal the bar insofar as it affects
“constitutional claims” or “questions of law,” such as those Ogundipe seeks to raise.
REAL ID Act, sec. 106(a)(1)(A)(iii) (codified at 8 U.S.C. § 1252(a)(2)(D)). It is unclear,
however, whether that Act converts this habeas appeal into a petition for review.
Because we would reach the same result in either scenario in this case (we exercise
plenary review where a district court dismisses a habeas corpus petition based on a legal
conclusion without holding an evidentiary hearing, see, e.g., Bakhtriger, 360 F.3d at 417,
and, generally, where purely legal issues are raised, see, e.g., Montgomery County
Commissioners v. Montgomery County,
215 F.3d 367, 372 (3d Cir. 2000)), we do not
attempt to interpret the relevant language of the Act to resolve this question.
4
III. Discussion
Congress has provided that aliens “not lawfully admitted for permanent residence”
who commit certain aggravated felonies are subject to expedited removal procedures. 8
U.S.C. § 1228(b). Because Ogundipe’s bank fraud conviction is an aggravated felony, it
serves as a basis for administrative removal proceedings under § 1228(b). Cf. Bamba v.
Elwood, 366 F.3d 195, 200 (3d Cir. 2004) (holding that § 1228(b) applies to aliens
convicted of an aggravated felony who are not lawfully admitted for permanent
residence). As Ogundipe is subject to administrative removal proceedings, he is barred
from receiving any type of discretionary relief from removal. 8 U.S.C. § 1228(b)(5).
Though Ogundipe also argues that he is not “amenable” to the expedited removal
proceedings, for the reasons explained by the District Court he meets the requirements for
removal under the administrative removal scheme, and this argument is therefore
unavailing. See Dist. Ct. Op. at 5-6 (discussing Ogundipe’s meeting requirements for
administrative removal proceedings under 8 C.F.R. § 238.1).3
Turning to his constitutional arguments, Ogundipe contends that the expedited
administrative removal procedure violates his right to due process. Courts have rejected
this argument. See, e.g., United States v. Benitze-Villafuerte, 186 F.3d 651, 660 (5th Cir.
3
The cases cited by Ogundipe— Lopez-Flores v. DHS, 376 F.3d 793 (8th Cir.
2004), and Perez-Gonzalez v. Ashcroft,
379 F.3d 783 (9th Cir. 2004)— in letters
submitted pursuant to Local Rule 28(j) are distinguishable because neither involved an
alien subject to the administrative removal process.
5
1999) (“[I]t is clear to us that the administrative deportation procedures of § 1228
afforded [the alien] the unimpeded opportunity to claim all the procedural due process to
which he was constitutionally entitled.”). Furthermore, even assuming arguendo that he
could show a due process violation, he could still not show that a hearing before the IJ
provides a meaningful remedy. Ogundipe is seeking to make his case for a “hardship”
waiver under 8 U.S.C. § 1182(h) to an IJ, but even if he obtained that waiver, he would
still be inadmissible because of his illegal re-entry after deportation. 8 U.S.C.
§ 1182(a)(9)(A)(I). Further, Ogundipe has previously sought, without success, essentially
the relief he seeks now. That is, he argues that his removal would cause extreme hardship
to his family. The BIA, however, has concluded that Ogundipe failed to “demonstrate[]
any extreme or unusual hardship” would result if he were not in the United States. (App.
218.)
Regarding his equal protection claim, Ogundipe argues that the fact that certain
similarly situated aliens have been placed in regular proceedings establishes that he has
been deprived of his right to equal protection under the law. However, even if he were
afforded regular removal proceedings, Ogundipe is statutorily ineligible for asylum and
withholding of removal under 8 U.S.C. § 1158(b)(2)(B)(i) and 8 U.S.C.
§ 1231(b)(3)(B)(ii).4 That consideration renders proceedings before an IJ essentially
4
Regarding withholding of removal, “the Attorney General may not remove an
alien to a country if the Attorney General decides that the alien’s life or freedom would be
threatened in that country because of the alien’s race, religion, nationality, membership in
6
futile, thereby providing grounds for not exercising discretion to place Ogundipe in
regular removal proceedings. Thus he cannot show that equal protection principles
mandate a hearing before an IJ.
For these reasons, Ogundipe’s arguments must fail and we affirm the District
Court’s decision.
a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). Under 8
U.S.C. § 1231(b)(3)(B )(ii), subsection (A) does not apply to an alien who, “having been
convicted by a final judgment of a particularly serious crime[,] is a danger to the
community of the United States. . . .” “[F]or purposes of clause (ii), an alien who has
been convicted of an aggravated felony (or felonies) for which the alien has been
sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to
have been convicted of a particularly serious crime.” 8 U.S.C. § 1231(b)(3)(B).
Ogundipe’s sentence was more than five years imprisonment; thus he is barred from
receiving this relief.
7
