979 F.2d 1104 (5th Cir. 1992), 92-1246, Giddings v. Chandler

Docket Nº92-1246.
Citation979 F.2d 1104
Party NameUlric Paul GIDDINGS, Plaintiff-Appellant, v. Ronald C. CHANDLER, District Director INS, et al., Defendants-Appellees.
Case DateDecember 28, 1992
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1104

979 F.2d 1104 (5th Cir. 1992)

Ulric Paul GIDDINGS, Plaintiff-Appellant,

v.

Ronald C. CHANDLER, District Director INS, et al.,

Defendants-Appellees.

No. 92-1246.

United States Court of Appeals, Fifth Circuit

December 28, 1992

Ulric Paul Giddings, pro se.

Marvin Collins, U.S. Atty., Dallas, Tex., Alison R. Drucker, Atty., Civ. Div., Washington, D.C., for defendants-appellees.

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

Page 1105

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 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, the 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 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 remanded to the Ninth Circuit for dismissal. 8 The Court's

Page 1106

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

  1. 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 allegations." 11 In making this determination, we accept the well-pleaded allegations in a complaint as true. 12

  2. 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 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

    Page 1107

    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 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...

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80 practice notes
  • Nonimmigrants; removal orders, countries to which aliens may be removed,
    • United States
    • Federal Register July 19, 2004
    • July 12, 2004
    ...``prisoner aliens who seek mandamus to force the INS to start deportation proceedings do have standing''). But see Giddings v. Chandler, 979 F.2d 1104, 1108-10 (5th Cir. 1992) (holding that an incarcerated alien lacked standing to invoke the Mandamus Act to compel the institution of deporta......
  • 264 F.Supp.3d 744 (W.D.Tex. 2017), Civ. SA-17-CV-404-OLG, City of El Cenizo v. State
    • United States
    • Federal Cases United States District Courts 5th Circuit Southern District of Texas
    • August 30, 2017
    ...give the INS notice of the person's death, impending release, or transfer to another institution." Giddings v. Chandler, 979 F.2d 1104, 1105 n.3 (5th Cir. [72] Memorandum from DHS Secretary John Kelly on Enforcement of the Immigration Laws to Serve the Nationa......
  • 13 F.3d 1370 (9th Cir. 1994), 92-55522, Barron v. Reich
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • January 13, 1994
    ...also would not lie. See also Aguirre v. Meese, 930 F.2d 1292, 1293 (7th Cir.1991) (following Gonzalez ). In Giddings v. Chandler, 979 F.2d 1104, 1107-10 (5th Cir.1992), the Fifth Circuit took a middle course, affirming dismissal of a claim under the Mandamus Act because the incarcerated ali......
  • 869 F.Supp. 396 (E.D.Va. 1994), Giraldo v. I.N.S.
    • United States
    • Federal Cases United States District Courts 4th Circuit Eastern District of Virginia
    • November 22, 1994
    ...v. Meese, 930 F.2d 1292 (7th Cir.1991) (same); Orozco v. U.S. I.N.S., 911 F.2d 539, 541 (11th Cir.1990) (same); Giddings v. Chandler, 979 F.2d 1104, 1110 (5th Cir.1992) (holding that alien does not fall within the "zone of interests" of § 1252(i), thus he has no standing to invoke......
  • Free signup to view additional results
79 cases
  • 264 F.Supp.3d 744 (W.D.Tex. 2017), Civ. SA-17-CV-404-OLG, City of El Cenizo v. State
    • United States
    • Federal Cases United States District Courts 5th Circuit Southern District of Texas
    • August 30, 2017
    ...give the INS notice of the person's death, impending release, or transfer to another institution." Giddings v. Chandler, 979 F.2d 1104, 1105 n.3 (5th Cir. [72] Memorandum from DHS Secretary John Kelly on Enforcement of the Immigration Laws to Serve the Nationa......
  • 13 F.3d 1370 (9th Cir. 1994), 92-55522, Barron v. Reich
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • January 13, 1994
    ...also would not lie. See also Aguirre v. Meese, 930 F.2d 1292, 1293 (7th Cir.1991) (following Gonzalez ). In Giddings v. Chandler, 979 F.2d 1104, 1107-10 (5th Cir.1992), the Fifth Circuit took a middle course, affirming dismissal of a claim under the Mandamus Act because the incarcerated ali......
  • 869 F.Supp. 396 (E.D.Va. 1994), Giraldo v. I.N.S.
    • United States
    • Federal Cases United States District Courts 4th Circuit Eastern District of Virginia
    • November 22, 1994
    ...v. Meese, 930 F.2d 1292 (7th Cir.1991) (same); Orozco v. U.S. I.N.S., 911 F.2d 539, 541 (11th Cir.1990) (same); Giddings v. Chandler, 979 F.2d 1104, 1110 (5th Cir.1992) (holding that alien does not fall within the "zone of interests" of § 1252(i), thus he has no standing to invoke......
  • 356 F.Supp.2d 652 (N.D.Tex. 2005), 3-04-CV-1638, Alkenani v. Barrows
    • United States
    • Federal Cases United States District Courts 5th Circuit Northern District of Texas
    • February 14, 2005
    ...and certain and the duty of the officer is ministerial and so plainly prescribed as to be free from doubt." Giddings v. Chandler, 979 F.2d 1104, 1108 (5th Cir.1992); see also Davis v. Fechtel, 150 F.3d 486, 487 (5th Cir.1998). In the instant case, petitioner must establish: (1) that he......
  • Free signup to view additional results
1 provisions
  • Nonimmigrants; removal orders, countries to which aliens may be removed,
    • United States
    • Federal Register July 19, 2004
    • July 12, 2004
    ...``prisoner aliens who seek mandamus to force the INS to start deportation proceedings do have standing''). But see Giddings v. Chandler, 979 F.2d 1104, 1108-10 (5th Cir. 1992) (holding that an incarcerated alien lacked standing to invoke the Mandamus Act to compel the institution of deporta......