Montoya v. United States

May 20, 1994 [NOT FOR PUBLICATION]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.

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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.

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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").

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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

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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.

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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

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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.

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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.

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