Third Circuit disposition — 054588np-pdf

NOT PRECEDENTIAL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.

-- 1 of 4 --

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
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 Service 1 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mandamus in the District Court of New Jersey seeking to have the detainer withdrawn.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).

-- 2 of 4 --

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
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).

-- 3 of 4 --

4
Accordingly, we find that the District Court did not abuse its discretion in
denying relief, and we will therefore affirm.

-- 4 of 4 --