                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-19-2006

Hernandez v. Secretary Homeland
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1982




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Recommended Citation
"Hernandez v. Secretary Homeland" (2006). 2006 Decisions. Paper 440.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/440


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APS-326                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                     NO. 06-1982
                                  ________________

                         HIPOLITO NELSON HERNANDEZ,

                                               Appellant

                                              v.

                DEPT. OF HOMELAND SECURITY/IMMIGRATION
                   AND CUSTOMS ENFORCEMENT DHC/ICE
                    ____________________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                              (D.C. Civ. No. 05-cv-05182)
                      District Judge: Honorable Robert B. Kugler
                     _____________________________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                   August 31, 2006

            Before: SLOVITER, McKEE and FISHER, CIRCUIT JUDGES.

                              (Filed: September 19, 2006)
                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Hipolito Nelson Hernandez appeals from an order of the United States District

Court for the District of New Jersey, granting the Government’s motion to dismiss his

petition for a writ of mandamus. We agree with the District Court, and will dismiss
Hernandez’ appeal for failure to state a claim, pursuant to 28 U.S.C. § 1915(e).

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1361, which gives

district courts authority to compel an officer or employee of the United States or any

agency to perform a duty owed to the plaintiff. We have appellate jurisdiction pursuant to

28 U.S.C. § 1291. We review a court’s mandamus decision for abuse of discretion, but

we review non-discretionary elements de novo. Stehney v. Perry, 101 F.3d 925, 929 (3d

Cir. 1996). We note that “Mandamus is an extraordinary remedy that can only be granted

where a legal duty ‘is positively commanded and so plainly prescribed as to be free from

doubt.’” Appalachian States Low-Level Radioactive Waste Com’n v. O’Leary, 93 F.3d

103, 112 (3d Cir. 1996) (quoting Harmon Cove Condominium Ass’n, Inc. v. Marsh, 815

F.2d 949, 951 (3d Cir. 1987)).

       Hernandez is serving a prison sentence at the Federal Correctional Institution at

Fort Dix, New Jersey, for a drug conviction. The Immigration and Naturalization Service

(which has been succeeded by the Bureau of Immigration and Customs Enforcement)

lodged a detainer against him, on the grounds that his drug conviction is an “aggravated

felony” that renders him subject to removal from the country. Hernandez asked the

Department of Homeland Security (“Department”) to find that he was not a removable

alien, and to lift the detainer, but the Department refused.

       Hernandez then filed a petition for a writ of mandamus, seeking to have the

detainer lifted based on the Supreme Court’s decision in Leocal v. Ashcroft, 543 U.S. 1

(2004), which held that an alien’s conviction for driving under the influence was not a

                                              2
“crime of violence” and was therefore not an aggravated felony. Hernandez argues that

his crime was not a crime of violence, either. However, Leocal involved a different

section of the definition of “aggravated felony,” namely, 8 U.S.C. § 1101(a)(43)(F). As

the District Court pointed out, Hernandez’ drug conviction would fall under 8 U.S.C.

§ 1101(a)(43)(B), which does not require the crime to be one involving violence. Thus,

his argument that the detainer should be lifted is without merit.

       We further agree, for the reasons stated by the District Court, that any collateral

consequences flowing from the detainer did not warrant mandamus relief. The appeal

will be dismissed.




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