                                    United States Court of Appeals,

                                              Fifth Circuit.

                                             No. 92–1246.

                              Ulric Paul GIDDINGS, Plaintiff–Appellant,

                                                    v.

            Ronald C. CHANDLER, District Director INS, et al., Defendants–Appellees.

                                             Dec. 28, 1992.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, JOLLY, and WIENER, Circuit Judges.

          WIENER, Circuit Judge.

          In this pro se appeal by an alien incarcerated in a Federal Correctional Institution in Texas,

Petitioner–Appellant Ulric Paul Giddings appeals the district court's dismissal of his petition for a writ

of mandamus, in which he seeks to compel Respondent–Appellee the Immigration and Naturalization

Service (INS) to begin deportation proceedings against him. Finding that Giddings fails to establish

his standing to bring suit under either the Mandamus and Venue Act (the Mandamus Act)1 or the

Administrative Procedure Act (APA)2, we affirm.

                                                    I

                                    FACTS AND PROCEEDINGS

          Giddings, a native of Guyana, entered the United States in 1977, at the age of 16, as a lawful

permanent resident. After graduating from high school, he joined the United States Marine Corps,

married a United States citizen, and began a family. In 1990, Giddings was convicted in the United

States District Court for the Eastern District of North Carolina of conspiracy to distribute cocaine

and "cocaine base," i.e., "crack cocaine." As a result, Giddings received a sentence of seventy-eight

months and was dishonorably discharged from the Marines. He is currently serving out his sentence

at the Federal Correctional Institution at Seagoville, Texas, with a tentative release date of December

   1
       28 U.S.C. § 1361 (1988).
   2
       5 U.S.C. §§ 500–706 (1988).
30, 1995.

          In January of 1991, the INS filed a detainer on Giddings with the prison authorities.3

Giddings, and approximately sixty other prison inmates, acting pro se,4 filed mandamus actions in the

United States District Court for the Northern District of Texas, each seeking to compel the INS to

begin deportation proceedings. The inmates alleged, inter alia, that the INS maintains a policy of

delaying the commencement of deportation proceedings until after a convicted alien had served his

sentence. In light of the large number of claims and their similarities, the district court stayed all but

one of the cases, Juan Raul Luevano–Orozco v. Chandler,5 which the court selected at random and

referred to the United States Magistrate Judge.

          After considering the Luevano–Orozco case, t he magistrate judge entered his findings and

recommendations, concluding that Luevano–Orozco, as an incarcerated alien, did not fall within the

"zone of interest" of § 1252(i) of the Immigration and Nationality Act (INA)6 or the APA. In his

findings, the magistrate judge questioned whether there was any "injury in fact" caused by

Luevano–Orozco's incarceration, noting that the inmate was confined pursuant to a legal conviction.

Finally, the magistrate judge noted that, to the extent the claim could be construed as a petition for

a writ for habeas corpus, there was no jurisdiction, noting that "the mere pendency of an INS detainer

does not satisfy the "in custody' requisite."

          In conclusion, the magistrate judge recommended dismissal of the claim pursuant to

Fed.R.Civ.P. 12(b)(6). The district court adopted the recommendation and dismissed the claim. The

court then gave each other similarly situated inmate an opportunity to show that his or her position

was different from that of Luevano–Orozco. Giddings responded by filing written objections to the


   3
    Filing a detainer is an informal procedure in which the INS informs prison officials that a
person is subject to deportation and requests that officials give the INS notice of the person's
death, impending release, or transfer to another institution.
   4
    In Santana v. Chandler, 961 F.2d 514 (5th Cir.1992), we held that the interests of justice did
not require appointment of counsel to assist with inmates' mandamus or habeas claims.
   5
       Civil No. 3–91–1943–H (N.D.Tex. Dec. 17, 1991).
   6
       8 U.S.C. §§ 1101–1557 (1988).
magistrate judge's findings. The district judge overruled the objections and dismissed Giddings' case.

Giddings timely appealed, claiming that the magistrate judge and the district judge ignored Soler v.

Scott,7 a Ninth Circuit decision holding that an incarcerated inmate may state a claim pursuant to the

Mandamus Act and the APA.

           While Giddings' appeal was pending, the United States Supreme Court granted certiorari for

Soler. In then disposing of the case by summary action, the Court vacated the case as moot and
                                            8
remanded t o the Ninth Circuit for dismissal. The Court's order for dismissal was based on the

well-established policy of preventing a judgment, "unreviewable because of mootness, from spawning

any legal consequences."9 As a result of the Court's actions, Giddings may no longer rely on Soler

as support for his claims. The dismissal of Soler as moot, however, does not prevent Giddings from

making the same arguments as those adopted by the Ninth Circuit. Although Soler has no legal

effect, we discuss its merits because Giddings presents the same arguments that were contained in

the former Ninth Circuit decision. We consider Giddings' claim as one of first impression in this

Circuit.

                                                    II

                                               ANALYSIS

A. STANDARD OF REVIEW

           We review de novo a trial court's dismissal for failure to state a claim upon which relief may

be granted.10 A trial court's decision to grant a Rule 12(b)(6) motion may be upheld "only if it

appears that no relief could be granted under any set of facts that could be proven consistent with the



   7
   942 F.2d 597 (9th Cir.1991), vacated as moot, ––– U.S. ––––, 113 S.Ct. 454, ––– L.Ed.2d
–––– (U.S.1992).
   8
   Sively v. Soler, ––– U.S. ––––, 113 S.Ct. 454, ––– L.Ed.2d –––– (1992). The case had
become moot as Soler had been released from prison without obtaining a deportation hearing.
   9
       United States v. Munsingwear Inc., 340 U.S. 36, 41, 71 S.Ct. 104, 107, 95 L.Ed. 36 (1950).
   10
     FDIC v. Ernst & Young, 967 F.2d 166, 169 (5th Cir.1992); Barrientos v. Reliance Standard
Life Ins. Co., 911 F.2d 1115, 1116 (5th Cir.1990), cert. denied, ––– U.S. ––––, 111 S.Ct. 795,
112 L.Ed.2d 857 (1991).
allegations."11 In making this determination, we accept the well-pleaded allegations in a complaint

as true.12

B. APPLICABLE LAW

          In his quest to have his deportation proceedings commenced, Giddings seeks to enforce §

701(i) of the INA,13 which provides:

          Expeditious deportation of convicted aliens. In 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 the conviction.

The legislative history behind § 701 demonstrates that the principal thrust of the provision was to

alleviate the serious problems of prison overcrowding and government expenditures.14 Specifically,

the congressional debates targeted and criticized the INS practice of waiting until a convicted alien

had served his sentence before commencing deportation proceedings.15 The expressed purpose of

§ 701(i) was to ease the problems of overcrowding and expense by "provid[ing] ... that deportation

proceedings will begin when there is a conviction."16

          Giddings claims that he may enforce § 701(i) against the INS—i.e., compel the INS to

schedule his deportation hearing—under the Mandamus Act and the APA. He premises his claim on

Soler,17 in which the Ninth Circuit relied on the text and history of § 701(i) in holding that Soler, a

convicted alien, could compel his deportation, pursuant to § 701(i), under the Mandamus Act and the

APA. Giddings urges us to adopt the reasoning and conclusions of the Ninth Circuit. Although, as

we have noted, Soler has been vacated, Giddings may still argue that we should adopt the Ninth


   11
    Baton Rouge Bldg. & Constr. Trades Council v. Jacobs Constructors, Inc., 804 F.2d 879,
881 (5th Cir.1986).
   12
        O'Quinn v. Manuel, 773 F.2d 605, 608 (5th Cir.1985).
   13
        INA § 701(i), 8 U.S.C. § 1252(i) (1988).
   14
        See, e.g., 132 CONG.REC. S16908–09 (Oct. 17, 1986) (Statement of Sen. Dole).
   15
        See 132 CONG.REC. H9794 (Oct. 9, 1986) (Statement of Rep. MacKay).
   16
        Id. at H9794.
   17
        Soler, 942 F.2d at 597.
Circuit's reasoning.

          The INS, on the other hand, asserts that we should follow the decisions of the Sixth, Seventh,

Eighth, and Eleventh Circuits, all of which have denied a convicted alien the right to enforce § 701(i)

against the INS.18 Moreover, the INS maintains that the Soler decision was decided on an incorrect

assumption—namely, that the INS still follows a policy of waiting until convicted aliens are released

from prison before beginning deportation proceedings—and thus is not persuasive.

          Giddings disputes the applicability of the decisions of the Sixth, Seventh, Eighth, and Eleventh

Circuits, arguing that these decisions are inapposite because they discuss an alien's right to compel

deportation under a writ of habeas corpus or under an implied right of action to § 1252(i). Relying

on Soler for distinction, Giddings argues that he is proceeding under the Mandamus Act and the

APA; thus, he claims, he does not need to establish either a constitutional right under habeas or an

implied private right of action under § 1252(i).

          Giddings' characterization of the opinions of the other circuits is not entirely accurate. In

Gonzalez v. United States INS,19 the Eighth Circuit rejected an incarcerated alien's claim for

mandamus relief, finding that mandamus was not appropriate absent an implied right of action under

§ 1252(i). The court concluded that no private right of action existed because § 1252(i) "impose[d]

a duty on the Attorney General, rather than vesting a right in criminal aliens."20 Although the cases

of the Sixth, Seventh, and Eleventh Circuits do not directly address the question of mandamus relief,

they do adopt Gonzalez and its reasoning.21

          Even if Giddings were correct concerning the distinction he makes between his claim and the

   18
     Aguirre v. Meese, 930 F.2d 1292 (7th Cir.1991) (finding that section 701(i) creates no
private right of action for convicted alien); Prieto v. Gluch, 913 F.2d 1159 (6th Cir.1990)
(same); Orozco v. United States INS, 911 F.2d 539 (11th Cir.1990) (holding that incarcerated
aliens could not compel immediate disposition of their cases through writ of habeas corpus);
Gonzalez v. United States INS, 867 F.2d 1108 (8th Cir.1989) (finding that section 701(i) creates
no private right of action under Mandamus and Venue Act).
   19
        867 F.2d at 1108.
   20
        Id. at 1109.
   21
     In the now vacated Soler, the Ninth Circuit reached a contrary result, holding that an implied
right of action is not necessary under the Mandamus Act.
one in Gonzalez, we would still disagree with his conclusion that these opinions are inapplicable to

our decision today. Giddings seeks relief under two statutes, each of which grants him a right of

action to enforce a duty owed to him under another statute. In this case, the underlying statute

allegedly creating a duty owed to Giddings is § 1252(i). It is inevitable that in our inquiry we must,

as a threshold matter, examine the underlying statute (§ 1252(i)) and determine whether there is

indeed a duty owed to Giddings. In this context, the decisions of the other circuits are relevant,

because each considers whether § 1252(i) creates a duty to an incarcerated alien. In other words, the

decisions of the other circuits are relevant in the determination of Giddings' standing to bring suit,

discussed in more detail below.

        Although Giddings may not need to prove a private right of action under § 1252(i),22 he must

establish his standing under the Mandamus Act and the APA. And, to have standing under either

statute, Giddings must show, inter alia, that he falls within the "zone of interest" protected by the

underlying statute—here, § 1252(i). In this context, the opinions concerning an implied right of

action under § 1252(i) are applicable because the courts in those cases have considered: (1) whether

the plaintiff is an intended beneficiary of the statute; and (2) whether the creation of a right of action

would co nflict with the purpose of the statute. As these are questions considered in determining

whether a plaintiff is within the "zone of interest," we deem the implied right of action cases to be

relevant.

C. STANDING

        As we recently acknowledged, the doctrine of "[s]tanding defies precise definition."23

"Generalizations about standing to sue are largely worthless as such. One generalization is, however,

necessary and that is that the question of standing in the federal courts is to be considered in the




   22
    Because we find the reasoning in Gonzalez applicable on other grounds, we need not address
whether a private right of action is required for mandamus relief.
   23
      Society of Separationists, Inc. v. Herman, 959 F.2d 1283, 1285 (5th Cir.1992) (en banc)
(citing Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)).
framework of Article III which restricts judicial power to "cases' and "controversies.' "24 As

interpreted by the Supreme Court, Article III requires the plaintiff to make a three-fold showing: (1)

"that he personally has suffered some actual or threatened injury as a result of the putatively illegal

conduct of the defendant"25; (2) that the injury "fairly can be traceable to the challenged action"26;

and (3) that the injury "is likely to be redressed by a favorable decision."27 In addition to the

constitutional requirements, the plaintiff must meet the statutory requirements of standing by coming

within its zone of protected persons.28

1. Mandamus and Venue Act

           The Mandamus Act vests district courts with original jurisdiction over "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."29 Mandamus is an appropriate remedy "only when the plaintiff's

"claim is clear and certain and the duty of the officer is ministerial and so plainly prescribed as to be

free from doubt.' "30 Thus, mandamus is not available to review the discretionary acts of officials.31

           For Giddings to have standing under t he Mandamus Act, he must not only satisfy the




   24
     Association of Data Processing Serv. Orgs. Inc. v. Camp, 397 U.S. 150, 151, 90 S.Ct. 827,
829, 25 L.Ed.2d 184 (1970).
   25
    Gladstone Realtors v. Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66
(1979).
   26
    Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48
L.Ed.2d 450 (1976).
   27
        Id. at 38, 96 S.Ct. at 1924.
   28
        Data Processing, 397 U.S. at 150, 90 S.Ct. at 829.
   29
        28 U.S.C. § 1361.
   30
     Nova Stylings, Inc. v. Ladd, 695 F.2d 1179 (9th Cir.1983) (quoting Jarrett v. Resor, 426
F.2d 213, 216 (9th Cir.1970), and Tagupa v. East–West Ctr., Inc., 642 F.2d 1127, 1129 (9th
Cir.1981)); see also United States v. United States Dist. Court, S. Dist. of Texas, 506 F.2d 383,
384 (5th Cir.1974) (Plaintiff must show a " "clear and indisputable' right to the extraordinary
writ.").
   31
        Green v. Heckler, 742 F.2d 237, 241 (5th Cir.1984).
constitutional requirements of injury, causation, and redressability,32 but must also establish that a

duty is owed to him. Any duty owed to the plaintiff must arise from another statute—in this case §

1252(i)—or from the United States Constitution. When the right alleged stems from a statute, a duty

is owed to the plaintiff for the purpose of the Mandamus Act if—but only if—the plaintiff falls within

the "zone of interest" of the underlying statute.33

          The "zone of interest" test, first articulated by the Supreme Court in Association of Data

Processing Service Organizations, Inc. v. Camp,34 requires that "the interests sought to be protected

by the complainant ... arguably [be] within the zone of interests to be protected or regulated by the

statute or constitutional guarantee in question."35              Although this test "has not proved

self-explanatory,"36 the Supreme Court has clarified it further by explaining:

                   The "zone of interest " test is a guide for deciding whether, in view of Congress'
          evident intent to make agency action presumptively reviewable, a particular plaintiff should
          be heard to complain of a particular agency decision. In cases where the plaintiff is not itself
          the subject of the contested regulatory action, the test denies a right of review if the plaintiff's
          interests are so marginally related to or inconsistent with the purposes implicit in the statute
          that it cannot reasonably be assumed that Congress intended to permit the suit. The test is
          not meant to be especially demanding; in particular, there need be no indication of
          congressional purpose to benefit the would-be plaintiff.37

          Guided by this language, we consider whether § 1252(i) creates sufficient interests for


   32
     In Soler, the Ninth Circuit's conclusion that mandamus was an appropriate remedy was
premised first on its conclusion that the incarcerated alien had standing. The court reasoned that
the alien, Soler, met the constitutional requirements by alleging injury in fact in the form of illegal
incarceration, that the injury was caused by the INS' failure to begin deportation proceedings, and
the injury would be redressed by the holding of such proceedings. The INS, in harmony with the
magistrate's findings, takes issue with the conclusion that an alien, incarcerated pursuant to a legal
conviction, suffers injury in fact. For the purpose of this appeal, we assume that Giddings has met
the constitutional requirements.
   33
     See Jarecki v. United States, 590 F.2d 670, 675 (7th Cir.1979); CBS Inc. v. Young, 522
F.2d 234, 237–38 (6th Cir.1975); New York v. Heckler, 578 F.Supp. 1109 (E.D.N.Y.1984),
aff'd, 742 F.2d 729 (2d Cir.1984).
   34
        397 U.S. at 150, 90 S.Ct. at 829.
   35
        Id. at 153, 90 S.Ct. at 830.
   36
    Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 396, 107 S.Ct. 750, 755, 93 L.Ed.2d 757
(1987) (citations omitted).
   37
        Id. at 399–400, 107 S.Ct. at 757 (citations omitted) (emphasis added).
Giddings that his suit is not marginally related or inconsistent with the purpose of the statute. We

conclude that the Eighth Circuit's reasoning in Gonzalez, which found that such a suit would be

inconsistent with the statute's main purposes of reducing prison overcrowding and cost to the

government, is persuasive. We therefore join the Sixth, Seventh, and Eleventh Circuits in following

the Eighth Circuit's reasoning in Gonzalez.

          In Soler, the Ninth Circuit acknowledges that § 701 was enacted for the taxpayers' benefit and

not for the benefit of the incarcerated alien. The court reasoned, however, that Soler's suit

"advance[d] the stated congressional purpose of reducing prison crowding caused by INS delay.

Soler's suit thus has a "plausible relationship to the policies' underlying Section 701."38 In our view,

the Sixth Circuit, in Prieto v. Gluch, assessed the dilemma more accurately, stating:

          Allowing criminal aliens to bring suit to compel the

          Attorney General to begin their deportation proceeding as expeditiously as possible, although
          perhaps not inconsistent with the purposes of controlling the flow of drugs into the United
          States and ameliorating the problem of prison overcrowding, does not seem to be consistent
          with these purposes either. These purposes are not concerned with the rights of criminal
          aliens but rather with removing such aliens from the country. It would seem anomalous to
          permit aliens to enforce section 1252(i) when that section is not concerned with aiding such
          aliens.39

          We do not agree that allowing a criminal alien to compel his own deportation proceedings

furthers the twin purposes of reducing prison overcrowding and saving taxpayer money. To the

contrary, there is evidence that the result would be to interfere with the Attorney General's

administration of the statute, thereby frustrating the statute's purposes, at least in part. In any event,

we do not agree that a person has standing simply because his or her suit may further the purposes

of the statute. If that were so, then one would have standing to sue any time that a lawsuit might be

deemed to further the purposes of any statute. Such an overbroad view of standing is inconsistent

with the decisions of the Supreme Court.40


   38
        Soler 942 F.2d at 605 (quoting Clarke, 479 U.S. at 403, 107 S.Ct. at 759).
   39
        Prieto, 913 F.2d at 1166.
   40
    See, e.g., Lujan v. Defenders of Wildlife, ––– U.S. ––––, 112 S.Ct. 2130, 119 L.Ed.2d 351
(1992).
          Moreover, in our view it is inconsistent to grant a criminal alien a right to compel his

deportation when the statute upon which he relies grants him no such right. Instead, while § 1252(i)

imposes a duty on the Attorney General to begin proceedings once an alien is deemed deportable

because of a conviction, that statute also grants the Attorney General discretion to proceed "as

expeditiously as possible." As the Eighth Circuit explained in Gonzalez, there is a distinction between

imposing a duty on a government official and vesting a right in a particular individual.41 We read §

1252(i) as imposing a duty on the Attorney General to deport criminal aliens, but we stop short of

concluding that this creates a duty owed to the alien.

          Thus, we hold that Giddings, as a criminal alien, does not possess a right under § 1252(i)

sufficient to bring him within the statute's zone of interest. Moreover, we conclude that allowing a

criminal alien to bring suit to compel his deportation does not further the purposes of the statute, but

if anything hinders the Attorney General's ability to carry out his statutory duty "as expeditiously as

possible." Because Giddings does not fall within the "zone of interest" protected by § 1252(i), he has

no standing to invoke the Mandamus Act.

          Relying on Soler, however, Giddings alleges that the Attorney General has exceeded his

discretion under § 1252(i) by adopting a policy of delaying the commencement of deportation

proceedings until an incarcerated alien has served his sentence. In Soler, the court accepted this

allegation as true without a specific finding of fact, and the outcome of the decision relies in part on

the presumed existence of the policy. The Soler court reasoned that the existence of such a policy

exceeded the Attorney General's discretion, making his duty to act clear and therefore rendering

mandamus an appropriate remedy.

           Because the instant case comes to us on appeal of a Rule 12(b)(6) dismissal, we are bound

to accept Giddings' allegations concerning the existence of the policy as true. Even assuming such

a policy existed, however, the outcome of this case does not change. The court in Soler reached its

decision that mandamus was an appropriate remedy after first determining that the criminal alien had

standing. In the instant case, however, even if the Attorney General is in violation of his duty,

   41
        Gonzalez, 867 F.2d at 1109.
Giddings lacks standing because we hold today that such a duty is not owed to him. Therefore,

Giddings allegation regarding the INS policy on delayed depo rtation of prisoners, even if true, is

unpersuasive.

2. APA Claim

          In addition to his request for mandamus relief, Giddings seeks to compel his deportation under

§ 702 of the APA, which grants a "person suffering legal wrong because of agency action within the

meaning of a relevant statute"42 standing to "compel agency action unlawfully withheld or

unreasonably delayed."43 But, standing under the APA is determined by applying the same "zone of

interest" test as applied to determine standing in the mandamus context; thus, Giddings' APA claim

must also fail for lack of standing because he does not come within the "zone of interest" of §

1252(i).44

                                                    III

                                             CONCLUSION

          Faced with a question of first impression, whether a criminal alien has the right to compel the

INS to commence deportation proceedings against him under § 1252(i), we join those circuits which

hold that one so situated has no right to compel the INS to take such action. Although we concur

in the results reached by these circuits, our reasoning is somewhat different: our conclusion rests on

our holding today that a criminal alien lacks standing to bring suit under either the Mandamus Act

or the APA because criminal aliens do not fall within the "zone of interest" of § 1252(i) and thus have

no standing to compel the INS to commence deportation proceedings. The district court's dismissal

pursuant to Rule 12(b)(6) is thus

          AFFIRMED.



   42
        5 U.S.C. § 702.
   43
        Id. § 706.
   44
     The INS argues that its adjudicatory proceedings under § 1252 are not governed by the
APA. We do not reach this issue as it is clear from our discussion of the "zone of interest" test
that Giddings lacks standing.
