Martinez-Lopez v. USA

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 23, 2001
• Docket: 01-50038
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50038 Summary Calendar

MIGUEL MARTINEZ-LOPEZ,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA; U.S. IMMIGRATION AND NATURALIZATION SERVICE; R. D. MILES, Warden,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. A-00-CV-784-JN - - - - - - - - - - April 23, 2001

Before REAVLEY, DeMOSS and BENAVIDES, Circuit Judges.

PER CURIAM:*

Miguel Martinez-Lopez appeals the district court’s denial of

his motion for immediate deportation and removal. He contends

that he is entitled to be immediately deported to Mexico because

he is a Mexican national, an order of removal has been entered

against him, and he has applied to be transferred to Mexico

pursuant to the Treaty on the Execution of Penal Sentences

between the United States and Mexico. Martinez is serving a 189-

month sentence for conspiracy to possess with intent to

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-50038 -2-

distribute cocaine, possession with intent to distribute five or

more kilograms of cocaine, and laundering monetary instruments.

Orders of removal generally may not be executed until after

an alien is released from prison. See 8 U.S.C. § 1231(a)(1)(B);

8 U.S.C. § 1231(a)(4). Thus, Martinez’ assertion that the

existence of an order of removal against him requires his

immediate deportation is without merit. Additionally, section

1231 does not provide a private right of action to compel the

release or removal of an alien. See 8 U.S.C. § 1231(a)(4)(D).

The Attorney General is vested with discretion to determine

whether to seek the transfer of an alien prisoner pursuant to the

Treaty on the Execution of Penal Sentences. See 18 U.S.C.

§ 4102. Martinez has cited no authority for compelling such a

transfer. In light of the fact that the receiving state, Mexico,

also must approve the transfer, the district court did not err in

determining that it lacked authority to order Martinez’

deportation.

To the extent that Martinez seeks to raise new issues,

pertaining to relief under 28 U.S.C. § 2241 and an alleged

sentencing error under Apprendi v. New Jersey, 530 U.S. 466

(2000), we do not consider these issues because they are raised

for the first time on appeal. See Leverette v. Louisville Ladder

Co., 183 F.3d 339, 342 (5th Cir. 1999), cert. denied, 528 U.S.

1138 (2000).

AFFIRMED.