Ambrose O. Esogbue v. M. FRANCES HOLMES, Acting District Director United States Immigration

BPS-305 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-2643
________________
AMBROSE O. ESOGBUE,
Appellant
v.
M. FRANCES HOLMES, Acting District Director United
States Immigration and Naturalization Service
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 00-CV-01344)
District Judge: Honorable Edwin M. Kosik
_______________________________________
Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
July 14, 2005
Before: RENDELL, FISHER AND VAN ANTWERPEN, CIRCUIT JUDGES
(Filed July 29, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Ambrose O. Esogbue appeals from an order of the United States District Court for
the Middle District of Pennsylvania, which dismissed his petition brought pursuant to 28

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U.S.C. § 2241. As the appeal raises no substantial question, we will summarily affirm the
District Court’s order.
The parties are familiar with the detailed procedural history of this case. In short,
Esogbue, who is a citizen of Nigeria, was found removable due to his criminal
convictions. In July of 2000, Esogbue, who was being held in detention in York,
Pennsylvania, filed a habeas petition in the United States District Court for the Middle
District of Pennsylvania (“Middle District”), arguing, inter alia, that he was eligible for
relief under former section 212(c) of the Immigration and Naturalization Act. The
Government moved to hold the case in abeyance pending finalization of regulations on
how to handle § 212(c) claims and then physically moved Esogbue to Louisiana. In the
meantime, Esogbue got an appeal reinstated with the Board of Immigration Appeals
(BIA). On December 28, 2000, the Middle District administratively closed the case,
subject to reopening by either party. The BIA denied Esogbue’s claims, including a claim
that he was eligible for § 212(c) relief, on May 5, 2003.
In November 2004, Esogbue filed a habeas petition in the United States District
Court for the Eastern District of Louisiana, raising the § 212(c) claim and others. The
petition was denied on March 23, 2005, and was not appealed. Esogbue then filed a
motion to reopen the habeas proceeding in the Middle District, which was granted.
However, the Government then informed the Middle District of the Louisiana proceeding,
and the Court dismissed the petition based on 28 U.S.C. § 2244(a) as a second or

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Esogbue timely appealed. This Court denied his motions for appointment of counsel1
and for a stay of removal on July 6, 2005.
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successive petition.1
Although the District Court cited 28 U.S.C. § 2244(a) to bar Esogbue’s successive
petition, that provision applies by its terms only to an applicant who is in detention
pursuant to a judgment of a court of the United States. See Zayas v. INS, 311 F.3d 247,
257 (3d Cir. 2002) (AEDPA does not apply to § 2241 petition brought by INS detainee).
However, the pre-AEDPA doctrines concerning abusive or successive petitions still
apply. Zayas, 311 F.3d at 257. As the Government pointed out in its opposition to
Esogbue’s motion for a stay of removal, Esogbue’s habeas petition in the Middle District
sought the same relief that had just been denied in the Eastern District of Louisiana; i.e., a
ruling that he was eligible for a waiver of removal under INA § 212(c). The District
Court correctly stated that “a successive petition, which raises grounds identical to those
raised and rejected on the merits, need not be entertained.” See e.g., Kuhlmann v.
Wilson, 477 U.S. 436, 454 (1986) (successive petition should be granted only in rare
cases); see also 8 U.S.C. § 1252(d)(2) (preventing court from reviewing final order of
removal if that order has been reviewed in a prior judicial proceeding). We further agree
with the District Court that to the extent Esogbue attempted to raise an argument to
support his claim that was not raised in Louisiana, the new argument was subject to
dismissal as an abuse of the writ.
For the foregoing reasons, we will affirm.

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