Montoya v. United States

Opinion

USCA1 Opinion

May 20, 1994          [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________

No. 93-1913

JUAN CAMILO-MONTOYA,

                                     Petitioner,

                                          v.

                              UNITED STATES OF AMERICA,

                                     Respondent.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Senior U.S. District Judge]
                                         __________________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                          Torruella and Cyr, Circuit Judges.
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                                 ___________________

               Juan Camilo Montoya, on brief for appellant.
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               Edwin J. Gale,  United States Attorney, and James H. Leavey,
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          Assistant United States Attorney, on brief for appellee.

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                                  __________________

Per  Curiam.      In 1986,  appellant  Juan  Camilo
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            Montoya, a  Colombian native,  was convicted of  federal drug

            offenses  after  being  tried  in  absentia.    His  sentence
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            included  a 22 year prison term.  He has served approximately

            7  years of  this term.    In 1993,  Camilo  Montoya filed  a

            petition  for mandamus  and  supporting  memorandum with  the

            United  States  District  Court  for the  District  of  Rhode

            Island.   He alleged that since 1988,  he has been subject to

            an  Immigration and  Naturalization Service  (INS) "detainer"

            which notified him  that he  is subject to  deportation as  a

            result  of  the aforementioned  conviction.   Camilo  Montoya

            claimed  that he  had  written to  the  Attorney General  and

            requested  a  prompt  deportation  hearing but  that  he  had

            received  no response.1   He  sought mandamus  to compel  the

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            1.  We  note  that although  Camilo  Montoya's  memorandum in
            support of his  petition for mandamus refers to a "detainer,"
            the INS document attached to  it is actually a form  Order to
            Show  Cause.   That  Order indicates  that  it was  served on
            Camilo  Montoya on 10/4/88 and that the time, date, and place
            of  his deportation hearing would  be set. The  Order to Show
            Cause also  indicates that Camilo  Montoya did not  request a
            prompt  deportation hearing  until  3/7/92.   We cannot  tell
            whether this Order to Show Cause was filed with the Office of
            the   Immigration   Judge,   thereby    formally   commencing
            deportation  proceedings  under  8   C.F.R.   242.1(a)("Every
            proceeding to determine the deportability  of an alien ... is
            commenced by the filing  of an Order  to Show Cause with  the
            Office of the Immigration Judge, ..."). In any event,  Camilo
            Montoya's  appellate  brief states  that he  received another
            Order  to Show  Cause  which indicated  that his  deportation
            hearing would take  place within fourteen  days, but that  he
            did not hear anything further despite multiple letters to the
            INS  and  the  Attorney  General  requesting  an  expeditious
            deportation hearing.   

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government to  grant him an immediate  deportation hearing in

            accordance with 8 U.S.C.  1252(i), which provides that, "[i]n

            the case  of an alien  who is  convicted of an  offense which

            makes the alien subject  to deportation, the Attorney General

            shall begin  any deportation  proceeding as expeditiously  as

            possible  after the date of  conviction."  In  support of his

            claim,  Camilo Montoya relied on Soler v. Scott, 942 F.2d 597
                                             _____    _____

            (9th Cir. 1991), vacated  as moot sub. nom. Sivley  v. Soler,
                             _______  __ ____ ___  ___  ______     _____

            113  S. Ct. 454  (1992), and Abreu  v. United  States, 797 F.
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            Supp.  50 (D.R.I.  1992)(holding  that  incarcerated  aliens'

            petitions  for mandamus  to  compel INS  to hold  deportation

            hearings  stated a  cause of  action under  the Mandamus  and

            Venue  Act (MVA),  28  U.S.C.  1361,  and the  Administrative

            Procedure Act (APA), 5 U.S.C.   702-06).2  

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            2.  28 U.S.C.   1361  provides that  "[t]he  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.  (emphasis supplied).    The APA,  5 U.S.C.   702,
            _________
            provides  that,  "[a]   person  ...  adversely  affected   or
            aggrieved  by agency action within the  meaning of a relevant
            statute is  entitled to  judicial review thereof[,]"  while 5
            U.S.C.  706,  creates a  right of  judicial review of  agency
            action  unlawfully  withheld  or  unreasonably  delayed.  See
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            Soler,  942  F.2d  at 603.  However,  there  is  no right  to
            _____
            judicial review if it  is precluded by statute or  the agency
            action has been committed  to agency discretion by law.   See
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            Heckler v. Chaney,  470 U.S. 821, 828  (1985)(citing 5 U.S.C.
            _______    ______
              701(a)(1) and (2)).   And,  judicial review  is limited  to
            "final agency  action for which  there is  no other  adequate
            judicial remedy in a  court" under 5 U.S.C.  704.  See Soler,
                                                               ___ _____
            942 F.2d at 603. 

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The  district  court denied  the  petition  for mandamus

            based on  cases  from numerous  circuits  which hold  that  8

            U.S.C.  1252(i) does not give criminal aliens a private right

            of action to  compel the INS  either to commence  deportation

            proceedings or  hold deportation hearings.   The leading case

            is  Gonzalez v. United States I.N.S.,  867 F.2d 1108, 1109-10
                ________    ____________________

            (8th Cir. 1989).3   Cases which  adopt this approach  include

            Aguirre  v. Meese, 930  F.2d 1292,  1293 (7th  Cir. 1991)(per
            _______     _____

            curiam); Prieto  v. Gluch, 913  F.2d 1159, 1165-66  (6th Cir.
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            1990),  cert.  denied, 498  U.S. 1092  (1991), and  Orozco v.
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            United  States I.N.S., 911 F.2d 539, 541 (11th Cir. 1990)(per
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            curiam).   See  also Alvaro-Gallo  v. United  States, 814  F.
                       ___  ____ ____________     ______________

            Supp. 1019, 1020 (W.D.  Okla. 1993); Limas v. McNary,  799 F.
                                                 _____    ______

            Supp. 1259, 1263 (D.  Mass. 1992);  Medina v.  United States,
                                                ______     _____________

            785 F. Supp. 512, 514 (E.D. Pa. 1992); Cabezas v.  Scott, 717
                                                   _______     _____

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            3.  Gonzalez  so  concluded  after  analyzing  the  statute's
                ________
            language and legislative history under  Cort v. Ash, 422 U.S.
                                                    ____    ___
            66  (1975), which sets  out a four-part  test for determining
            whether  a private  right of  action should  be implied  in a
            federal statute.  After examining  each of these  factors and
            noting that the  legislative history was silent  on the issue
            of whether Congress  intended that aliens  have the right  to
            enforce  1252(i),  the Eighth Circuit concluded that Congress
            enacted   1252(i) primarily to  alleviate prison overcrowding
            and that "it would be inconsistent with this purpose to imply
            a  private cause of action in favor of incarcerated aliens to
            compel  an immediate deportation  hearing."  See  867 F.2d at
                                                         ___
            1109-10.    However, Soler  expressly  rejected the  Gonzalez
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            approach.   See  942 F.2d  at 604-05  ("a petitioner  who has
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            alleged a cause  of action under the APA or  the Mandamus Act
            need not rely upon  an implied private right of  action under
            any other statute").

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F.  Supp.  696, 697  (D. Ariz.  1989).4   Another  case which

            denied  mandamus relief  on  similar grounds  is Giddings  v.
                                                             ________

            Chandler, 979  F.2d 1104, 1109-10  (5th Cir. 1992).5   Camilo
            ________

            Montoya filed a timely appeal.

                 On appeal, Camilo Montoya contends  that his case is "on

            all fours" with Soler  v. Scott, supra, and asks us  to adopt
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            the analysis in  Soler as a matter of  first impression.6  He
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            4.   But  see Iheme v.  Reno, 819  F. Supp. 1192,  1194 & n.1
                 ___  ___ _____     ____
            (E.D. Pa. 1993)(criticizing  foregoing cases  on ground  that
            the view that  1252(i)  "is simply precatory ... and  ... not
            subject  to  judicial  enforcement  ...  has  eliminated  any
            incentive the ... [INS] had to  comply with the congressional
            mandate"). 

            5.  In  Giddings v. Chandler,  979 F.2d at  1107, n. 22,  the
                    ________    ________
            Fifth  Circuit  declined to  reach  the  issue of  whether  a
            private right of action under 8 U.S.C.   1252(i) was required
            for  mandamus relief.    Instead, that  court concluded  that
            Giddings lacked standing to maintain his action to compel the
            government to commence deportation proceedings under both the
            MVA  and the APA because he did  not fall within the "zone of
            interests" protected by 8  U.S.C.  1252(i).  See 979  F.2d at
                                                         ___
            1108-10.  Relying on Gonzalez, Giddings also concluded that 8
                                 ________  ________
            U.S.C.  1252(i)  imposed a  duty on  the Attorney General  to
            deport criminal  aliens  but "stop[ped]  short of  concluding
            that this creates a  duty owed to the alien[]"  sufficient to
                                      _________________
            enable  the alien to maintain an action for mandamus under 28
            U.S.C.  1361.  Id. at 1110.
                           ___

            6.  We note that though Soler was  vacated, the Ninth Circuit
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            subsequently indicated that its rationale remained sound. See
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            Silveyra  v. Moschorak,  989 F.2d  1012,  1024 n.2  (9th Cir.
            ________     _________
            1993) (per curiam). However,  Silveyra appears to limit Soler
                                          ________                  _____
            to  its facts,  for  it stresses  that  Soler's petition  for
            mandamus  alleged  that  the  INS had  a  policy  of delaying
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            incarcerated aliens' deportation  hearings until after  their
            criminal sentences had  expired, in  direct contravention  of
             1252(i)'s requirement  that the  government use the  date of
            conviction, not the  date of release,  as the benchmark  from
            which to  commence deportation proceedings.   As Silveyra did
            not make similar allegations, the Ninth Circuit held that his
            complaint  to compel  an  immediate  deportation hearing  was

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also  seems  to  be  arguing  that   while  an  alien  cannot

            reasonably  expect to be deported after serving only a little

            time in  jail, he is entitled  to be deported now  because he

            has  served over  90  months and  still  has not  received  a

            deportation  hearing   under  8  U.S.C.   1252(i).7    Camilo

            Montoya also  says that another  law requires  the Bureau  of

            Prisons  to house  deportable aliens  in a  facility separate

            from the other inmates, and that the  government's failure to

            perform  this duty has endangered  his life and  liberty.  He

            asks us to issue an order instructing the government to house

            him  in   a  facility   designed  to  hold   aliens  awaiting

            deportation and to  issue a  writ of mandamus  to compel  the

            government   to,  in   effect,   complete   the   deportation

            proceedings against him.8   

                 Relying  largely  on  Gonzalez  and   its  progeny,  the
                                       ________

            government  contends that  8  U.S.C.  1252(i)  does not  give

            alien  prisoners  the  right  to  compel  the  government  to

            schedule deportation  hearings and  that  the district  court

            properly dismissed  Camilo Montoya's petition for mandamus in

            accordance  with all of the circuits which have ruled on this

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            properly dismissed for failure to state a claim under the MVA
            and the APA. See 989 F.2d at 1015.
                         ___

            7.  In support of  this contention,  Camilo Montoya  observes
            that all of his codefendants were deported long ago.

            8.  Camilo  Montoya  did  not  challenge  the  place  of  his
            confinement below.  The issue, apart from appearing specious,
            is not properly before us. 

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issue.  The  government further argues  that Soler is  wrong,
                                                         _____

            and  urges  us  to  adopt the  majority  view.    We find  it

            unnecessary to resolve this issue for it is clear that Camilo

            Montoya's  petition for  mandamus  failed to  state a  viable

            claim.   

                 Mandamus  is  an  extraordinary   remedy  that  is  only

            available upon a showing that the plaintiff has exhausted all

            other avenues  of  relief and  that  the defendant  owes  the

            plaintiff a clear, nondiscretionary duty.  See, e.g., Heckler
                                                       ___  ____  _______

            v.  Ringer, 466 U.S. 602,  616 (1984); Georges  v. Quinn, 853
                ______                             _______     _____

            F.2d 994, 995 (1st Cir. 1988)(per curiam). Even if we assume,

            without deciding,  that under 8 U.S.C.   1252(i) the Attorney

            General  owes Camilo  Montoya  a duty  to "begin  deportation

            proceedings as  expeditiously as  possible after the  date of

            conviction,"  and that Camilo Montoya has  a private cause of

            action  to  enforce  this  statute,  Camilo  Montoya  is  not

            entitled to relief, for  his filings do not suggest  that the

            government has violated this duty in this case.  

                 Camilo Montoya alleges only that he  has served about 90

            months of a 22-year sentence, that he has  been subject to an

            INS "detainer" since 1988, that he received at least one, and

            possibly two, Orders to Show Cause (one notifying him that he

            was  required to appear for a deportation hearing that was to

            be set, the other setting a deportation hearing which did not

            materialize for unknown reasons),  and that he has repeatedly

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requested,  but  not  yet  received, a  deportation  hearing.

            These allegations do not  suggest that the INS has  failed to

            begin deportation proceedings  "as expeditiously as possible"

            after Camilo Montoya's  conviction.  To  the contrary, if  at

            least  one of  the Orders  to Show  Cause was filed  with the

            Office  of the Immigration Judge, then  the INS has commenced

            deportation  proceedings. And  even if  neither order  was so

            filed,  it nonetheless appears that the INS is prepared to do

            so. The INS's failure to hold the deportation hearing at this

            point in time is not sufficient to make out a  violation of 8

            U.S.C.  1252(i) on this record. 

                 Contrary  to Camilo  Montoya's  contention  that  he  is

            entitled   to  be   deported  now   because  he   has  served

            approximately  90   months  of  his  22-year   term  and  his

            codefendants   have  been   deported,  the   Immigration  Act

            prohibits  his  deportation  until  he  completes his  prison

            sentence.    See 8  U.S.C.   1252(h)("An  alien sentenced  to
                         ___

            imprisonment  shall not  be deported until  such imprisonment

            has  been  terminated  by  the  release  of  the  alien  from

            confinement."). According to his own estimate, Camilo Montoya

            has  at least  four  more years  to  serve before  he  can be

            deported.   This is ample time for the government to complete

            deportation  proceedings.   At a  minimum, then,  mandamus is

            premature. 

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In  view of the foregoing, we decline to reach the other

            issues raised  by the  parties' briefs. The  judgment of  the

            district court is affirmed. 
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