Filed: Sep. 14, 2000
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 00-6630 In Re: MUSTAPHA AKANNI OLATEJU, Petitioner. On Petition for Writ of Mandamus. (A21-098-827) Submitted: August 7, 2000 Decided: September 14, 2000 Before WIDENER, MURNAGHAN,* and NIEMEYER, Circuit Judges. Petition denied by unpublished per curiam opinion. Mustapha Akanni Olateju, Petitioner Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). * Judge Murnaghan was assigned to the
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 00-6630 In Re: MUSTAPHA AKANNI OLATEJU, Petitioner. On Petition for Writ of Mandamus. (A21-098-827) Submitted: August 7, 2000 Decided: September 14, 2000 Before WIDENER, MURNAGHAN,* and NIEMEYER, Circuit Judges. Petition denied by unpublished per curiam opinion. Mustapha Akanni Olateju, Petitioner Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). * Judge Murnaghan was assigned to the ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 00-6630
In Re: MUSTAPHA AKANNI OLATEJU,
Petitioner.
On Petition for Writ of Mandamus. (A21-098-827)
Submitted: August 7, 2000 Decided: September 14, 2000
Before WIDENER, MURNAGHAN,* and NIEMEYER, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Mustapha Akanni Olateju, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
*
Judge Murnaghan was assigned to the panel in this case but
died prior to the time the decision was filed. The decision is
filed by a quorum of the panel. 28 U.S.C. § 46(d).
PER CURIAM:
Mustapha Olateju filed a petition for a writ of mandamus
seeking an order from this Court requiring the Board of Immigration
Appeals (Board) and the Immigration Judge (IJ) to reopen his depor-
tation proceedings. The Government has moved to dismiss the manda-
mus petition as an improperly filed petition for review. We deny
the motion to dismiss and deny the mandamus petition.
Mandamus is a drastic remedy to be used only in extraordinary
circumstances. See Kerr v. United States Dist. Court,
426 U.S.
394, 402 (1976). Consequently, the party seeking mandamus relief
carries the heavy burden of showing he has no other adequate means
to attain the relief he desires, and that his right to such relief
is clear and indisputable. Allied Chem. Corp. v. Diaflon, Inc.,
449 U.S. 33, 35 (1980) (citations omitted). Mandamus cannot be
used as a substitute for an appeal. See In re United Steelworkers,
595 F.2d 958, 960 (4th Cir. 1979). Olateju has failed to meet his
burden of showing a clear right to the relief he seeks. Moreover,
it appears that his petition is being used as a substitute for an
appeal.
Olateju had thirty days to file a petition for review chal-
lenging his final order of removal. See 8 U.S.C.A. § 1252(b)(1)
(West 1999). Such a petition was required to be filed in the Fifth
Circuit Court of Appeals because Olateju’s immigration proceedings
were concluded before an IJ in Louisiana. See 8 U.S.C.A.
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§ 1252(b)(2) (West 1999); 28 U.S.C. § 41 (1994); see also Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA) § 309(c)(4)(D) (providing venue provision for cases in
transition as of the effective date of the IIRIRA). If Olateju’s
mandamus petition were liberally construed as a petition for re-
view, the petition would be untimely because it was filed more than
thirty days after the Board’s final order. For that reason, we
decline to so construe the petition and transfer it to the Fifth
Circuit. See 28 U.S.C. § 1631 (1994). We deny the Government’s
motion to dismiss. We deny Olateju’s mandamus petition, deny his
motion to proceed in forma pauperis, and deny his motion for a stay
of deportation as moot.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
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