                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-20-2006

Adeyeye v. Dept Homeland
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4588




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"Adeyeye v. Dept Homeland" (2006). 2006 Decisions. Paper 722.
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                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 05-4588


                                    DAPO ADEYEYE,
                                             Appellant

                                             vs.

                    DEPARTMENT OF HOMELAND SECURITY,
                  IMMIGRATION AND CUSTOMS ENFORCEMENT
                                  (DHS/ICE)
                     ____________________________________

                     On Appeal From the United States District Court
                               For the District of New Jersey
                               (D.C. Civil No. 05-cv-01335)
                      District Judge: Honorable Jerome B. Simandle
                     _______________________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    July 14, 2006

              Before: FISHER, ALDISERT and WEIS, CIRCUIT JUDGES

                                  (Filed: July 20, 2006)


                                         OPINION


PER CURIAM.

              Dapo Adeyeye appeals the dismissal of his petition for a writ of mandamus

by the District Court for the District of New Jersey.
                                              I.

              In 2002, Adeyeye pled guilty to possession with intent to distribute

approximately one kilogram of a mixture containing heroin, in violation of 21 U.S.C. §

841, and was sentenced to 120 months imprisonment. Shortly thereafter, the Immigration

and Naturalization Service1 lodged a detainer against Adeyeye for possible removal based

on his conviction, which it classified as an aggravated felony.

              In 2005, Adeyeye, who is presently serving his federal sentence at the

Federal Correctional Institution in Fort Dix, New Jersey, filed a petition for a writ of

mandamus in the District Court of New Jersey seeking to have the detainer withdrawn.

Adeyeye asserted that he had filed two administrative requests to have the detainer lifted,

but received no response. Adeyeye alleged that his drug conviction did not constitute an

aggravated felony, and that the erroneous classification was depriving him of certain

benefits of a minimum security prison. The District Court denied relief finding that

Adeyeye had not demonstrated a clear right to relief.

                                             II.

              We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District

Court’s denial of mandamus relief for abuse of discretion. Arnold v. Blast Intermediate

Unit 17, 843 F.2d 122, 125 (3d Cir. 1988).



   1
     In 2003, the Immigration and Naturalization Service ceased to exist and its functions
were transferred to the Department of Homeland Security. See Homeland Security Act,
116 Stat. 2135, Pub.L. 107-296 (2002).
                                              2
               A writ of mandamus is a drastic remedy that should only be granted in

extraordinary situations. In re Nwanze, 242 F.3d 521, 524 (3d Cir. 2001). A petitioner

seeking such relief must show that he has “no other adequate means to obtain the desired

relief” and that his right to issuance of the writ is “clear and indisputable.” Id. Adeyeye

argues that he should not be classified as an aggravated felon because he was not

convicted of a violent offense. The Immigration and Nationality Act sets forth numerous

types of offenses that may constitute an “aggravated felony”, including both “a crime of

violence”, 8 U.S.C. § 1101(a)(43)(F), and drug trafficking crimes, 8 U.S.C. §

1101(a)(43)(B). Thus, even if Adeyeye was not convicted of a violent offense, he has

failed to show that his conviction for possession with intent to distribute does not

otherwise constitute an aggravated felony as a drug trafficking crime.2

               Adeyeye also argues that the Bureau of Prison (“BOP”) lacks authority to

categorically exclude prisoners subject to removal detainers from the early release

incentive provided under the substance abuse program. See 18 U.S.C. § 3621(e)(2)(B).

We are not persuaded. We find no basis to question the regulation providing for the

categorical exclusion of certain inmates, see 28 C.F.R. § 550.58(a)(1), as a legitimate

exercise of the BOP’s discretion. See United States v. Lopez-Salas, 266 F.3d 842, 847-48

(8th Cir. 2001).



   2
     For this reason, Adeyeye’s reliance on Leocal v. Ashcroft, 543 U.S. 1 (2004) is
misplaced. In Leocal, the petitioner was specifically charged under the “crime of
violence” definition of an aggravated felony. See Leocal, 543 U.S. at 4-5.
                                             3
              Accordingly, we find that the District Court did not abuse its discretion in

denying relief, and we will therefore affirm.




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