
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          May 20, 1994          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.                                  __________________                     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.                                             ______________                                 ___________________               Juan Camilo Montoya, on brief for appellant.               ___________________               Edwin J. Gale,  United States Attorney, and James H. Leavey,               _____________                               _______________          Assistant United States Attorney, on brief for appellee.                                  __________________                                  __________________                      Per  Curiam.      In 1986,  appellant  Juan  Camilo                      ___________            Montoya, a  Colombian native,  was convicted of  federal drug            offenses  after  being  tried  in  absentia.    His  sentence                                           __  ________            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                                            ____________________            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.                                            -3-                                          3            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.                                         _____     ______________            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                                              ____________________            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                                                                      ___            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                                                                      ___            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.                                          -4-                                          4                 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.                     ______     _____            1990),  cert.  denied, 498  U.S. 1092  (1991), and  Orozco v.                    _____  ______                               ______            United  States I.N.S., 911 F.2d 539, 541 (11th Cir. 1990)(per            _____________________            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                                                   _______     _____                                            ____________________            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                                 _____                           ________            approach.   See  942 F.2d  at 604-05  ("a petitioner  who has                        ___            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").                                                      -5-                                          5            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                            _____     _____  _____            the analysis in  Soler as a matter of  first impression.6  He                             _____                                            ____________________            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                                    _____            subsequently indicated that its rationale remained sound. See                                                                      ___            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                                                      ______            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                                         -6-                                          6            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                                            ____________________            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.                                          -7-                                          7            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                                         -8-                                          8            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.                                          -9-                                          9                 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.                               ________                                         -10-                                          10
