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


4-21-2006

Ararat v. Dist Dir BICE
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4147




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CPS-179                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       NO. 05-4147
                                    ________________

                                ROBERTULIO ARARAT,

                                              Appellant


                                              v.

                           DISTRICT DIRECTOR DHS/ICE
                       ____________________________________

                     On Appeal From the United States District Court
                               For the District of New Jersey
                                (D.C. Civ. No. 05-cv-01336)
                      District Judge: Honorable Jerome B. Simandle
                     _______________________________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                  March 30, 2006

              Before: BARRY, SMITH, AND NYGAARD, Circuit Judges.

                                   (Filed April 21, 2006)


                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       Robertulio Ararat appeals from an order of the United States District Court for the

District of New Jersey, dismissing his petition for a writ of mandamus for failure to state
a claim pursuant to 28 U.S.C. § 1915(e)(2). We agree with the District Court, and will

similarly dismiss Ararat’s appeal for failure to state a claim.

       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)).

       Ararat 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.

       Ararat’s petition sought 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 “crime of violence” and was therefore not an



                                              2
aggravated felony. Ararat 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, Ararat’s 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.
