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


3-8-2006

Adegbuji v. Fifteen Immigration
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1506




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                                                        NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                               NO. 05-1506
                            ________________

                           TOSIN ADEGBUJI,

                                     Appellant

                                     v.

                     FIFTEEN IMMIGRATION AND
                 CUSTOMS ENFORCEMENT AGENTS
                 (in their individual and official capacities)
              _______________________________________

             On Appeal From the United States District Court
                      For the District of New Jersey
                      (D.C. Civ. No. 04-cv-01613)
               District Judge: Honorable John W. Bissell
             _______________________________________

               Submitted Under Third Circuit L.A.R. 34.1(a)
                           February 22, 2006

     Before: BARRY, STAPLETON and GREENBERG, CIRCUIT JUDGES


                         (Filed:   March 8, 2006)

                         ____________________

                               OPINION
                         ____________________

PER CURIAM
      This appeal arises from the order of the United States District Court for the District

of New Jersey dismissing Appellant Tosin Adegbuji’s complaint pursuant to 28 U.S.C. §

1915(e)(2)(B).

      On May 1, 2002, Adegbuji was arrested on an outstanding 1995 warrant by an

agent from the Bureau of Immigration and Customs Enforcement (“BICE”) upon his

arrival at Newark, New Jersey Airport on a Continental Airlines flight from London,

England. He was processed, interrogated, and subjected to a strip search. The agents

retained Adegbuji’s personal items, airline tickets and luggage claim tickets. Adegbuji’s

luggage remained in the custody of the airline. He was held in custody and arraigned the

next day on the 1995 warrant in the Southern District of New York.

      Adegbuji pled guilty to the New York charge on May 24, 2002, and was released

immediately to BICE’s custody, where he was again processed and interrogated.

Adegbuji alleges that agents coerced him into signing a form consenting to his

withdrawal of admission into the United States on the agents’ promise that he would be

allowed to go back to Great Britain immediately and avoid prolonged incarceration.

Adegbuji was held the Middlesex County Adult Correction Center pending deportation.

On July 10, 2002, Adegbuji received a removal order issued in his absence and without a

hearing, which he claims was based on a finding that his conviction was an “aggravated

felony,” a designation he disputes. Adegbuji avers that on July 15, 2002, agents

physically forced him onto the Continental flight headed for London, England.



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       On March 31, 2004, Adegbuji brought the instant action. His complaint raises

claims that the defendants: (1) conducted an illegal search and seizure of his personal

items and luggage; (2) violated his due process rights by illegally deporting him, without

notice or a hearing, based on a disputed characterization of the New York conviction as

an “aggravated felony;” (3) violated his Equal Protection rights when they strip searched

him in May 2002, and forced him to be removed from the United States without his

personal property and against his will on July 15, 2002; (4) used excessive force in

effecting his removal from the United States on July 15, 2002; (5) conspired with officials

from Continental Airlines to deprive him of his personal property because of his race,

ethnic origin, and protected class as an alien; and (6) conspired to secure his illegal

removal in July 2002, and to keep him incarcerated despite a June 2003 order granting

relief from withholding of removal to Nigeria. Adegbuji sought damages, attorneys fees,

and injunctive relief, including rescission of the July 2002 deportation order.

       The District Court reviewed the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B),

and dismissed it sua sponte for failure to state a claim. Adegbuji filed a timely appeal.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review of the

District Court’s dismissal for failure to state a claim is plenary. “We must determine

whether, under any reasonable reading of the pleadings, the plaintiff may be entitled to

relief, and we must accept as true the factual allegations in the complaint and all

reasonable inferences that can be drawn therefrom.” Nami v. Fauver, 82 F.3d 63, 65 (3d

Cir. 1996) (citation omitted). We will affirm.

                                              3
       Adegbuji asserts that his forced deportation in July 2002 violated his due process

rights because (1) he was not an “aggravated felon,” (2) he did not receive notice or have

an opportunity to be heard before the removal order issued, and (3) he was coerced into

signing a voluntary withdrawal of admission into the United States. The District Court

properly dismissed Adegbuji’s due process challenges to the July 2002 removal order.

This claim, essentially an appeal from the removal order, is not properly brought against

these defendants. In any event, the District Court would lack subject matter jurisdiction

under the REAL ID Act of 2005, 8 U.S.C. § 1252(a)(5) to consider Adegbuji’s claims

seeking an order reversing the removal order.

       Sections 1252(g) and 1252(a)(2)(A) of the REAL ID Act bar judicial review of all

of Adegbuji’s Bivens and § 1985(3) claims for damages “arising out of the decision to

commence removal proceedings” or “arising from or relating to the implementation of or

operation of an order of removal.” Even if judicial review of these claims was not barred

under the REAL ID Act, we would decline to review them in any event because Adegbuji

has raised these claims in a Petition for Review that is currently pending in this Court.

See Adegbuji v. Atty. Gen., C.A. No. 05-3894.

       For the reasons set forth in the District Court’s opinion, we agree that Adegbuji

fails to state a Fourth Amendment claim with respect to his arrest and strip search, and the

seizure of personal items in May 2002.

       The equal protection claims that do not implicate the removal proceedings or

removal order are also flawed. There is no allegation in the Complaint from which we

                                              4
can infer that Adegbuji was treated differently from similarly situated inadmissible aliens.

Keenan v. City of Philadelphia, 983 F.2d 459, 465 (3d Cir. 1992) (citations omitted).

       With respect to Adegbuji’s excessive force claim, we agree with the District

Court’s ultimate conclusion that Adegbuji failed to state a claim, but for different reasons.

Adegbuji provides scant factual allegations in the Complaint, stating only that he was

injured at the ankle, elbow, and head when the defendants effected an “illegal

deportation.” There is nothing in the Complaint from which we can infer that excessive

force was used. On appeal, Adegbuji explains that on July 15, 2002, the defendants

shackled his feet and handcuffed his hands to his waist. He admits that he went

voluntarily to the plane for boarding. See Informal Brf. at 10. Adegbuji resisted going

inside at the plane’s doorstep, however, when his demand for his luggage and other

personal property was denied. Id. He claims that the defendants pushed and dragged him

on the floor as he fell into the aircraft. Id. at 11. Even assuming that Adegbuji’s belated

allegations are true, the force used to get Adegbuji on the plane when he resisted was not

excessive. See Whitley v. Albers, 475 U.S. 312, 320-22 (1986).

       Adegbuji also alleges that the defendants conspired with Continental Airlines to

deprive him of his personal property when he was arrested in May 2002, on a 1995

warrant issued by the United States District Court in New York. To the extent that this

conspiracy claim does not implicate the removal proceedings or order, we conclude that it

fails to state a claim upon which relief can be granted. Adegbuji alleges that Agent

“Shroeder instructed Continental to retain Adegbuji’s checked-in luggage - citing security

                                              5
reasons.” Complaint at 7-2, ¶ 5. Shroeder told Adegbuji “I wouldn’t worry about your

luggage and other items we took from you at this time, for that is the least of your

problems right now. When you finish with the Feds, your properties will be waiting for

you at [the] airline to be deported back to where you came from.” Id. Even when given

the most liberal construction possible, the allegations simply fail to identify anything

more than a single decision by one person. We find nothing in these allegations from

which we can infer an understanding between Shroeder and any named defendants or any

Continental Airlines official or employee to deprive Adegbuji of his property on account

of his race or alien status. Moreover, the allegations suggest that there was no conspiracy

to deprive Adegbuji of his property. Continental Airlines was merely instructed to hold

the property until it could be sent back to the country to which Adegbuji would be

deported.

        Finally, as for the tort claims of deprivation of property and assault and battery,

failure to exhaust administrative remedies is a jurisdictional bar to suit under the Federal

Tort Claims Act. See 28 U.S.C. § 2401(b). For the first time on appeal, Adegbuji

produced a letter from the Department of Homeland Security dated December 10, 2003,

denying two claims brought by Adegbuji concerning incidents that occurred in May and

July 2002.1 This Court does not consider new evidence presented for the first time on

appeal. Adegbuji had the opportunity to bring this documentation to the District Court’s



   1
       The letter does not indicate the substantive nature of the complaints.

                                               6
attention in the original Complaint filed in 2004, and again in his reconsideration motion,

but he did not do so. Based on the record at the time, the District Court correctly

determined that the Complaint was completely devoid of any factual allegation

concerning exhaustion, and thus it properly dismissed the Complaint without prejudice.

       For the foregoing reasons, we will affirm the District Court’s order dismissing the

complaint.




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