United States v. Abiola , 51 F. App'x 456 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-4436
OLUSEGUN ABIOLA, a/k/a Oladapo
Johnson, a/k/a Ayodeji O. Abiola,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-01-531-DKC)
Submitted: November 7, 2002
Decided: December 3, 2002
Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
James Wyda, Federal Public Defender, Daniel W. Stiller, Assistant
Federal Public Defender, Greenbelt, Maryland, for Appellant.
Thomas M. DiBiagio, United States Attorney, James M. Trusty,
Assistant United States Attorney, Greenbelt, Maryland, for Appellee.
2 UNITED STATES v. ABIOLA
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Olusegun Abiola appeals his conviction for unauthorized reentry of
a deported alien after conviction of an aggravated felony in violation
of 8 U.S.C. §§ 1326(a), (b)(2) (2000). Finding no reversible error, we
affirm.
Abiola raises only one issue on appeal, claiming that the district
court erred in denying his motion to dismiss the indictment. Abiola
claims that his summary removal under the Visa Waiver Pilot Pro-
gram ("VWPP") did not amount to a deportation as that term is used
in 8 U.S.C. § 1326 (2000). Specifically, he claims that the Govern-
ment failed to produce sufficient documentation of entry under the
VWPP and of his waiver of rights to a deportation hearing. Abiola
also claims that the "Acting ADDI" who authorized the summary
removal action did not possess the authority to order his removal. We
conduct a de novo review of the district court’s denial of a motion to
dismiss the indictment. United States v. Brandon, 298 F.3d 307 (4th
Cir. 2002).
On appeal, Abiola is essentially challenging his prior removal
under the VWPP. In the context of a prosecution for illegal reentry
after deportation, a defendant may collaterally attack a deportation
constituting an element of the offense if he can show that: (1) he was
effectively deprived of his right to judicial review of the deportation
order; (2) the deportation proceedings were fundamentally unfair; and
(3) he has exhausted any administrative remedies that may have been
available to seek relief against the deportation order. 8 U.S.C.
§ 1326(d); United States v. Mendoza-Lopez, 481 U.S. 828 (1987).
Based on our review of the formal briefs and the joint appendix
submitted in this case, we find that Abiola may not collaterally attack
his prior deportation order because he fails to show that it was
UNITED STATES v. ABIOLA 3
obtained under conditions that were fundamentally unfair. The parties
stipulated in the district court that (1) Abiola entered the United States
through the VWPP in 1992; (2) all visa waiver applicants under the
VWPP were required to complete, sign and date an I-94W form;
(3) the I-94W form includes a waiver of rights whereby the applicant
agrees to waive his rights to review of any action taken in deportation
proceedings; and (4) the INS, in the ordinary course of business,
destroyed the original form and reduced the information from the
form into its database. Abiola entered the United States from the
United Kingdom, and it is undisputed that he reads, speaks, and
understands English. Given these stipulations, we find that Abiola
validly waived any right to review of the INS’s determination of
deportability. Accordingly, Abiola waived the rights he now asserts
were improperly denied and thus cannot show fundamental unfair-
ness.
Because Abiola fails to meet the test set forth in 8 U.S.C.
§ 1326(d), he cannot collaterally attack his prior deportation. We
therefore uphold the district court’s denial of Abiola’s motion to dis-
miss the indictment and affirm his conviction for illegal reentry. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED