(HC) Lua v. United States

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

JUAN M. AGUILAR LUA, Case No. 1:25-cv-00156-KES-EPG-HC

Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF v. MANDAMUS

UNITED STATES OF AMERICA, et al., Respondents.

Petitioner Juan M. Aguilar Lua is a state prisoner proceeding pro se with a petition for writ of mandamus. For the reasons stated herein, the undersigned recommends that the petition be dismissed. I. The federal mandamus statute provides: “The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. “An order pursuant to § 1361 is available only if (1) the claim is clear and certain; (2) the official’s or agency’s ‘duty is nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt’; and (3) no other adequate remedy is available.” Agua Caliente Tribe of Cupeno Indians of Pala Rsrv. v. Sweeney, 932 F.3d 1207, 1216 (9th Cir. 2019) (quoting Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1997)). “The writ of mandamus is a ‘drastic and extraordinary’ remedy ‘reserved for really extraordinary causes.’” In re Van Dusen, 654 F.3d 838, 840 (9th Cir. 2011) (quoting Ex parte Fahey, 332 U.S. 258, 259–60 (1947)). See Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988) (“This Court repeatedly has observed that the writ of mandamus is an extraordinary remedy, to be reserved for extraordinary situations.”). Here, Petitioner seeks a writ of mandamus to compel Respondents to deport Petitioner back to his birth country, purportedly in accordance with an executive order issued on January 20, 2025. (ECF No. 1 at 11.1) However, Petitioner is currently incarcerated at the Avenal State Prison in the custody of the State of California, (ECF No. 1 at 5), and “the Attorney General may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment,” 8 U.S.C. § 1231(a)(4)(A). Further, the statute explicitly states that “[n]o cause or claim may be asserted under this paragraph against any official of the United States or of any State to compel the release, removal, or consideration for release or removal of any alien.” 8 U.S.C. § 1231(a)(4)(D). “It is well-settled that Petitioner does not have a private right of action to compel the Attorney General to remove him from the United States before he completes his criminal sentence.” Foster v. U.S. Dep’t of Homeland Sec., No. CV 19-05715-PHX-JAT (DMF), 2020 WL 3451993, at *1 (D. Ariz. June 23, 2020) (collecting cases). See United States v. Aispuro, 127 F.3d 1133, 1134 (9th Cir. 1997) (per curiam) (“The district court lacked jurisdiction to order Aispuro deported because the United States Attorney did not request Aispuro’s deportation.”). The extraordinary remedy of mandamus is not available in the instant case because “the Attorney General may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment,” 8 U.S.C. § 1231(a)(4)(A), and “Petitioner does not have a private right of action to compel the Attorney General to remove him from the United States before he completes his criminal sentence,” Foster, 2020 WL 3451993, at *1. /// /// I. Based on the foregoing, the undersigned HEREBY RECOMMENDS that the petition for writ of mandamus be DISMISSED for lack of jurisdiction. This Findings and Recommendation is submitted to the assigned United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file written objections, no longer than fifteen (15) pages, including exhibits, with the Court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). Dated: _ May 13, 2025 [sf hy — UNITED STATES MAGISTRATE JUDGE