UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 00-6630

In Re: MUSTAPHA AKANNI OLATEJU,

Petitioner.

On Petition for Writ of Mandamus. (A21-098-827)

Submitted: August 7, 2000 Decided: September 14, 2000

Before WIDENER, MURNAGHAN,* and NIEMEYER, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Mustapha Akanni Olateju, Petitioner Pro Se.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

* Judge Murnaghan was assigned to the panel in this case but died prior to the time the decision was filed. The decision is filed by a quorum of the panel.

(d). PER CURIAM:

Mustapha Olateju filed a petition for a writ of mandamus

seeking an order from this Court requiring the Board of Immigration

Appeals (Board) and the Immigration Judge (IJ) to reopen his depor-

tation proceedings. The Government has moved to dismiss the manda-

mus petition as an improperly filed petition for review. We deny

the motion to dismiss and deny the mandamus petition.

Mandamus is a drastic remedy to be used only in extraordinary

circumstances. See Kerr v. United States Dist. Court,

(1976). Consequently, the party seeking mandamus relief

carries the heavy burden of showing he has no other adequate means

to attain the relief he desires, and that his right to such relief

is clear and indisputable. Allied Chem. Corp. v. Diaflon, Inc.,

(1980) (citations omitted). Mandamus cannot be

used as a substitute for an appeal. See In re United Steelworkers,

(4th Cir. 1979). Olateju has failed to meet his

burden of showing a clear right to the relief he seeks. Moreover,

it appears that his petition is being used as a substitute for an

appeal.

Olateju had thirty days to file a petition for review chal-

lenging his final order of removal. See

(b)(1)

(West 1999). Such a petition was required to be filed in the Fifth

Circuit Court of Appeals because Olateju’s immigration proceedings

were concluded before an IJ in Louisiana. See 8 U.S.C.A.

2 § 1252(b)(2) (West 1999);

(1994); see also Illegal

Immigration Reform and Immigrant Responsibility Act of 1996

(IIRIRA) § 309(c)(4)(D) (providing venue provision for cases in

transition as of the effective date of the IIRIRA). If Olateju’s

mandamus petition were liberally construed as a petition for re-

view, the petition would be untimely because it was filed more than

thirty days after the Board’s final order. For that reason, we

decline to so construe the petition and transfer it to the Fifth

Circuit. See

(1994). We deny the Government’s

motion to dismiss. We deny Olateju’s mandamus petition, deny his

motion to proceed in forma pauperis, and deny his motion for a stay

of deportation as moot.

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

PETITION DENIED

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