Abiodun v. Gonzales

FILED
United States Court of Appeals
Tenth Circuit
February 11, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
BENAD ABIODUN,
Plaintiff-Appellant, No. 07-1266
v. (D. of Colo.)
MICHAEL MUKASEY, (D.C. No. 07-cv-278-MEH-PAC)
Defendant-Appellee. *
and
BENAD ABIODUN, No. 07-1401
Plaintiff-Appellant,
v. (D. of Colo.)
UNITED STATES OF AMERICA, (D.C. No. 07-cv-1713-ZLW)
Defendant-Appellee.
ORDER AND JUDGMENT **
Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges. ***
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), appellee
requests that Michael Mukasey be substituted for Alberto R. Gonzales as the
appellee in this case.
**
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
***
After examining the briefs and the appellate record, this three-judge
(continued...)
Benad Abiodun raises several claims in connection with his detention by
federal immigration officials. We consolidate cases 07-1266 and 07-1401 for the
purposes of this disposition.
Proceeding pro se, 1 Abiodun appeals the denial of habeas corpus relief to
him under 28 U.S.C. § 2241 (07-1266) and the dismissal of his claims under the
Federal Tort Claims Act (FTCA) (07-1401). Abiodun filed a petition for habeas
corpus on February 8, 2007. He has previously filed several direct appeals and
petitions for habeas corpus challenging his immigration status. We conclude (1)
Abiodun’s first argument in 07-1266, pertaining to his petition for naturalization,
has already been decided against him at least twice and thereby constitutes an
abuse of the writ; (2) the remainder of Abiodun’s appeal in 07-1266, pertaining to
his alleged indefinite detention, merits no relief at this time; and (3) Abiodun is
not entitled to damages under the FTCA.
Accordingly, we AFFIRM the district court’s orders and dismiss the
consolidated appeals.
***
(...continued)
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
1
Because Abiodun proceeds pro se, we review his pleadings and filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).
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I. Background
The facts giving rise to Abiodun’s present situation have previously been
recounted in some detail. See, e.g., Abiodun v. Maurer, No. 07-1184, 2007 WL
4244360 (10th Cir. Dec. 4, 2007); Abiodun v. Gonzales, 461 F.3d 1210 (10th Cir.
2006). Thus, we recite only those facts necessary for the present appeals.
Abiodun is currently in both state and federal custody. The Colorado
Department of Corrections supervises his parole for a state drug conviction, while
the Bureau of Immigration and Customs Enforcement (ICE) has detained him in
federal jail while he awaits final removal from the country. Abiodun has been in
federal custody since his parole from Colorado state prison on December 30,
2004.
Abiodun has repeatedly challenged his status as a removable alien and the
manner in which federal immigration officials reviewed his petition for
naturalization. He made two arguments in his habeas corpus petition to the
district court, which he reiterates on appeal: (1) immigration officials did not
fairly adjudicate his petition for naturalization; and (2) immigration officials are
holding him in indefinite detention. Abiodun also seeks damages under the FTCA
for allegedly wrongful actions of immigration officials.
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II. Discussion
A. Petition for Naturalization
Abiodun first alleges immigration officials did not fairly adjudicate his
petition for naturalization. This issue has already been raised and decided against
Abiodun at least twice. See Abiodun v. Gonzales, 217 F. App’x 738, 741 (10th
Cir. 2007) (“The district court retained jurisdiction over Mr. Abiodun’s habeas
challenge to his naturalization proceedings and dismissed that challenge.”); see
also Abiodun v. Gonzales, 461 F.3d 1210, 1216 (10th Cir. 2006); Abiodun v.
Maurer, No. 05-352, 2006 WL 559244, at *2 (D. Colo. Mar. 3, 2006). We deem
it an abuse of the writ for Abiodun to raise the identical claim a third time and
therefore refuse to review the issue. See 28 U.S.C. § 2244(a); Felker v. Turpin,
518 U.S. 651, 664 (1996) (recognizing AEDPA left intact principles enunciated
by the federal courts concerning an “abuse of the writ”).
To the extent Abiodun relies on his naturalization argument to challenge
the final order of removal against him, we note that the removal issue has already
been determined adversely to him. See Abiodun, 217 F. App’x at 741–42. We
therefore have no jurisdiction to review it here. 8 U.S.C. § 1252(d)(2) (“A court
may review a final order of removal only if another court has not decided the
validity of the order . . . .”).
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B. Indefinite Detention
Abiodun next asserts federal immigration officials are holding him in
indefinite detention in violation of 8 U.S.C. § 1231(a)(6). Abiodun has been in
federal custody for more than three years, awaiting final deportation to his
homeland of Nigeria. Because Abiodun has not previously raised this argument
in habeas proceedings, it is properly reviewable here. See, e.g., Soberanes v.
Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004).
The Supreme Court has construed 8 U.S.C. § 1231(a)(6) in a manner that
prohibits the indefinite detention of aliens awaiting deportation. The Court has
explained an alien’s detention pending removal should not exceed “a period
reasonably necessary to secure removal” and that detention must end if “there is
no significant likelihood of removal in the reasonably foreseeable future.”
Zadvydas v. Davis, 533 U.S. 678, 699, 701 (2001). Detention lasting six months
or less is presumptively reasonable; detention lasting beyond six months requires
the government to rebut the alien’s showing that there is no significant likelihood
of removal in the reasonably foreseeable future. Id. at 701.
We conclude Abiodun is not entitled to relief on his indefinite detention
claim because he will likely be removed in the reasonably foreseeable future.
Unlike the aliens in Zadvydas—who faced indefinite detention because their
countries of origin would not accept them—there has been no showing Abiodun
will not be accepted by his homeland of Nigeria. ICE officials have attempted to
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obtain travel documents and place Abiodun on a chartered flight to Nigeria on
multiple occasions, including as recently as August 14, 2007. The main reason
Abiodun still remains in the United States is his repeated court challenges to
removal and refusal to cooperate with ICE officials in obtaining a Nigerian
passport and other necessary travel documents. For example, on April 30, 2007,
Abiodun refused to accept or acknowledge ICE Form I-229(a), which is required
by ICE officials to assist in removing an unlawful alien. On December 24, 2005
and February 1, 2006, moreover, Abiodun refused to complete an application for a
Nigerian passport.
Although Abiodun has been detained for longer than six months, that fact
standing alone does not mean he must now be released. See Zadvydas, 533 U.S.
at 701 (“This 6-month presumption, of course, does not mean that every alien not
removed must be released after six months.”); see also Soberanes, 388 F.3d at
1311 (upholding continued detention of deportable alien after more than two
years of confinement); Adefemi v. Gonzales, 228 F. App’x 415, 416 (5th Cir.
2007) (per curiam) (same).
Abiodun’s detention—at this time—simply does not raise the specter of
indefinite detention. ICE officials are actively seeking Abiodun’s removal and
there is no indication they will not succeed. We are troubled by the inability of
ICE officials to secure his removal in a timely manner, even given Abiodun’s
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repeated court filings and failure to cooperate. We suspect, however, those
impediments will be removed given the disposition of these consolidated appeals.
C. Federal Tort Claims Act
Abiodun also appeals the denial of his claim for damages under the FTCA,
28 U.S.C. §§ 2671–80. He asserts immigration officials committed negligent and
intentional torts against him during the course of his naturalization and removal
proceedings. We agree with the district court this claim lacks merit.
Abiodun attempts to recover tort damages for the same reasons he claims
immigrations officials did not fairly adjudicate his petition for naturalization.
Allowing Abiodun to recover in tort for the conduct of immigration officials who
handled his case would necessarily call into question the validity of those actions.
Because we have already upheld those administrative actions, however,
Abiodun’s claim under the FTCA cannot succeed. Cf. Heck v. Humphrey, 512
U.S. 477, 486–87 (1994) (“[I]n order to recover damages for allegedly
unconstitutional conviction or imprisonment . . . a § 1983 plaintiff must prove
that the conviction or sentence has been reversed . . . expunged . . . declared
invalid . . . or called into question . . . .”); Parris v. United States, 45 F.3d 383,
385 (10th Cir. 1995) (“We conclude the FTCA, like § 1983, is not an appropriate
vehicle for challenging the validity of outstanding criminal judgments.” (internal
marks omitted)).
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In any event, Abiodun has not developed a coherent legal argument in
support of his claim to this court; nor has he served the government with one.
Abiodun has used every tool possible to remain in the United States, and this
lawsuit is yet another example.
III. Conclusion
For the reasons set forth above, we AFFIRM the district court’s decisions.
We also DENY Abiodun’s motions to proceed in forma pauperis, as well as his
motion for a preliminary injunction in case 07-1401. 2
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
2
Abiodun, as an ICE detainee, is not a “prisoner” within the scope of the
Prisoner Litigation Reform Act (PLRA). See LaFontant v. INS, 135 F.3d 158,
165 (D.C. Cir. 1998); Ojo v. INS, 106 F.3d 680, 683 (5th Cir. 1997). Therefore,
the fee requirements and three-strikes provisions of the PLRA do not apply to this
appeal.
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