                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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                                                                       NOT PRECEDENTIAL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
