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Precedential or Non-Precedential: Non-Precedential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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"Adegbuji v. Fifteen Immigration" (2006). 2006 Decisions. Paper 1469.
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NOT PRECEDENTIAL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.
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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
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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
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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.
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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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