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


7-13-2006

Lauersen v. Durling
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1719




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Recommended Citation
"Lauersen v. Durling" (2006). 2006 Decisions. Paper 747.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/747


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DPS-268                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                  NO. 06-1719
                               ________________

                             NEILS H. LAUERSEN,
                                        Appellant

                                         v.

                            WALTER A. DURLING,
                              Immigration Judge;
                       U.S. DEPARTMENT OF JUSTICE;
                           EXECUTIVE OFFICE FOR
                           IMMIGRATION REVIEW;
                            ALBERTO GONZALES,
                             U.S. Attorney General
                    ____________________________________

                  On Appeal From the United States District Court
                      For the Middle District of Pennsylvania
                           (D.C. Civ. No. 06-CV-00286)
                   District Judge: Honorable A. Richard Caputo
                  _______________________________________


Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                 June 29, 2006

  BEFORE: FUENTES, VAN ANTWERPEN and CHAGARES, CIRCUIT JUDGES

                              (Filed July 13, 2006 )


                           _______________________
                                   OPINION
                           _______________________

PER CURIAM
       Dr. Neils H. Lauersen appeals from an order of the United States District Court for

the Middle District of Pennsylvania, denying his petition for a writ of mandamus.1 We

will affirm.

       Lauersen, a native and citizen of Denmark, was issued a Notice to Appear,

charging him with being removable for having committed an aggravated felony. An

Immigration Judge (IJ) found him removable as charged on January 18, 2006. On

February 7, 2006, Lauersen filed a petition for writ of mandamus in the District Court,

arguing that the IJ lacked jurisdiction because his criminal conviction was on direct

appeal.

       The District Court properly denied the petition, noting that relief pursuant to 28

U.S.C. § 1361 2 is only available if the plaintiff “has exhausted all other avenues of relief

and only if the defendant owes him a clear nondiscretionary duty.” Heckler v. Ringer,

466 U.S. 602, 616 (1984) (citations omitted). At the time Lauersen filed his petition, he

had not appealed the IJ’s decision to the Board of Immigration Appeals (BIA).3 Thus, the


   1
    We note that Lauersen filed a Motion to Alter or Amend Judgment, and a Motion to
Reconsider the denial of the first motion. As Lauersen has not filed an appeal from the
orders denying those motions, we do not discuss them here.
   2
     Section 1361 gives district courts jurisdiction over a mandamus action “to compel an
officer or employee of the United States or any agency thereof to perform a duty owed to
the plaintiff.” 28 U.S.C. § 1361.
   3
     We take judicial notice that the BIA has since denied Lauersen’s motion to remand to
the IJ for reconsideration and has dismissed his appeal. Lauersen filed a petition for
review of that decision, docketed in this Court at C.A. No. 06-3034, and that appeal is
pending.

                                              2
Court properly denied his petition for lack of jurisdiction. We further note that to the

extent Lauersen sought review of his order of removal, the District Court lacked

jurisdiction for another reason--pursuant to 8 U.S.C. § 1252(a)(5), a “petition for review

filed with an appropriate court of appeals . . . shall be the sole and exclusive means for

judicial review of an order of removal.”

       For the foregoing reasons we will affirm the order of the District Court.




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