Soler v. Scott

• Decision Date: 05 October 1990
• Docket Number: No. 89-16051,FCI-S,89-16051
• Citation: 942 F.2d 597
• Parties: Carlos SOLER, Plaintiff-Appellant, v. Roger F. SCOTT, Warden,afford, AZ; United States Bureau of Prisons; U.S. Immigration and Naturalization Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 597

942 F.2d 597

60 USLW 2155

Carlos SOLER, Plaintiff-Appellant, v. Roger F. SCOTT, Warden, FCI-Safford, AZ; United States

Bureau of Prisons; U.S. Immigration and

Naturalization Service, Defendants-Appellees.

No. 89-16051.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 5, 1990. ^*

Submission Vacated Oct. 12, 1990.

Resubmitted Aug. 1, 1991.

Decided Aug. 1, 1991.

Carlos A. Soler, Sheridan, Or., in pro per.

Gerald S. Frank, Asst. U.S. Atty., Tucson, Ariz., for defendant-appellees.

Appeal from the United States District Court for the District of Arizona.

Before BROWNING, GOODWIN and RYMER, Circuit Judges.

JAMES R. BROWNING, Circuit Judge:

Section 701 of the Immigration Reform and Control Act of 1986 provides:

In the case of an alien who is convicted of an offense which makes the alien subject to deportation, the Attorney General [through the Immigration and Naturalization Service] shall begin any deportation proceeding as expeditiously as possible after the date of the conviction.

8 U.S.C. § 1252(i) (1988).

Congress enacted Section 701 to accomplish a single objective: to require the INS to abandon its practice of postponing prisoner deportation hearings until after the expiration of a prisoner's sentence. Rather than deporting aliens promptly upon the expiration of their prison sentence, the INS waited until a prisoner completed his or her sentence before even scheduling a hearing to determine whether the prisoner would be deported. These aliens remained in prison while awaiting their deportation hearing. Congress concluded this practice of keeping aliens in prison after they had completed their sentence contributed to prison overcrowding and imposed an unfair, unnecessary and expensive burden on limited federal and state resources. Congress enacted Section 701 to require the INS to begin deportation hearings as soon as possible after conviction so the question of deportation could be resolved before the prisoner's term expired, and if the prisoner was found deportable, deportation could be accomplished promptly. As Representative MacKay, who introduced Section 701 as a floor amendment to the Immigration Reform and Control Act, explained:

[Section 701] addresses a narrow but a very important issue. It has to do with illegal aliens who are convicted of drug-related crimes, who under Federal law should be deported and who, under the policies of the Immigration and Naturalization Service, should be deported on an expedited basis.

The policies require that deportation proceedings begin when a conviction takes place, the idea being that when the sentence is over, the person would be deported.

Now, unfortunately, the very opposite is happening. These people are not being deported; the expedited procedure is not working; the local and State jails are jammed up[;] the Immigration and Naturalization Service has no incentive to give priority to these because the burden of inaction falls on State and local governments and not on the Federal system.

This amendment provides ... that deportation proceedings will begin when there is a conviction.

132 Cong.Rec. H9794 (October 9, 1986). Representative MacKay proved himself a poor prophet when he added: "I believe this amendment would lead very quickly to a changing of priorities in INS." Id.

In the Senate, then-Majority Leader Dole expressed concerns similar to those of Congressman MacKay, noting that the amendment would provide:

authority for expeditious deportation of convicted felons. This is a particular concern of mine, since there are about 6,000 aliens currently in Federal prisons and many more in the State and local systems.

132 Cong.Rec. S16908 (October 17, 1986).

Senator Dole added:

They are occupying space that is desperately needed. They are costing the taxpayers millions for their board and keep.

Id. at S16909.

Appellant Carlos Soler, a native of Cuba, entered the United States legally in 1970, and is currently in federal prison for a crime that may subject him to deportation. The INS filed a "Detainer," informing prison authorities that Soler might be deportable, but took no further action. A year after his conviction, Soler filed a pro se petition seeking an order to compel the INS to schedule and hold a prompt deportation hearing. Soler alleged "the INS has a long-standing policy of refusing to begin any deportation proceedings until after release from [Bureau of Prisons] custody," and "has no intention" of holding his hearing before that time "unless compelled to[ ] by this Court."

Soler further alleged that due to the INS' policy he will be forced to remain in prison beyond the expiration of his term while waiting for the INS to decide whether he should be deported: "By delaying actual [deportation] proceedings until after the incarceration for Petitioner's criminal conviction," Soler alleges, "existing government policy guarantees additional costs of incarceration during the post-incarceration proceedings; and this is precisely what Congress sought to avoid in enacting Title 8 U.S.C. § 1252(i)."

The INS does not deny the existence of the policy Soler alleges, nor its consequences. Instead, the INS argues it is "under no duty enforceable by petitioner to accord him a deportation hearing before he completes his criminal sentence. Moreover, any duty which may exist is discretionary, not ministerial, in nature." We disagree.

I

As Soler asserts, the INS' alleged policy is flatly inconsistent with the text and purpose of Section 701.

The words of the statute are mandatory: the "Attorney General [through the INS] shall begin any deportation proceeding as expeditiously as possible after the date of the conviction." 8 U.S.C. § 1252(i) (emphasis added). The use of mandatory language strongly indicates Congress intended to limit INS discretion. See United States v. Chavez, 627 F.2d 953, 954-55 (9th Cir.1980). Moreover, by specifically referring to "the date of the conviction," Congress plainly intended this date, not the prisoner's scheduled date for release, to be the benchmark for scheduling deportation hearings. If Soler's allegations are true, the INS has decided not to consider the date of conviction at all in scheduling prisoner deportation hearings but instead to be guided by a date of its own choosing, a date much later than the one chosen by Congress.

By use of the phrase "as soon as possible" Congress gave the INS significant discretion in scheduling deportation hearings. It is clear from legislative history, however, that Congress left the INS no discretion to adopt a policy that fixes a departure point for the exercise of scheduling discretion significantly later than the date Congress mandated, and necessarily postpones every deportation hearing beyond expiration of each individual alien's prison term.

Representative MacKay emphasized that the singular purpose of Section 701 was to end the very practice Soler alleges persists. 132 Cong.Rec. H9794 (October 9, 1986). Congress' stated intent was to ease the chronic problem of prison overcrowding by "provid[ing] ... that deportation proceedings will begin when there is a conviction." Id. (emphasis added). Congress plainly did not intend to leave the INS discretion to adopt the very policy it was forbidding. ¹

II

We conclude Soler's allegations state a cause of action under the Mandamus and Venue Act of 1962, 28 U.S.C. § 1361 (1988), and the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (1988).

A

Assuming the facts to be as alleged, mandamus is an appropriate means of compelling the INS to schedule Soler's deportation hearing in a manner consistent with Section 701.

Mandamus may not be used to instruct an official how to exercise discretion. See e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170-71, 2 L.Ed. 60 (1803); Wilmot v. Doyle, 403 F.2d 811, 816 (9th Cir.1968). Mandamus is appropriate when an official's duty to act is ministerial in nature and so plain as to be free from doubt. Moose v. United States, 674 F.2d 1277, 1284 (9th Cir.1982); Elliott v. Weinberger, 564 F.2d 1219, 1226 (9th Cir.1977). ² This does not mean an official's conduct is unreviewable because the official's responsibilities are in some respects discretionary. As the Supreme Court has long recognized, a "duty may be discretionary within limits. [The official] can not transgress those limits, and if he does so, he may be controlled by injunction or mandamus to keep within them." Work v. U.S. ex rel. Rives, 267 U.S. 175, 177, 45 S.Ct. 252, 69 L.Ed. 561 (1925) (Taft, C.J.). Thus, the "extent [of the officer's discretion] and the scope of judicial action in limiting it depend upon a proper interpretation of the particular statute and the congressional purpose." Id. at 178, 45 S.Ct. at 253. " 'In other words, even in an area generally left to agency discretion, there may well exist statutory or regulatory standards delimiting the scope or manner in which such discretion can be exercised. In these situations, mandamus will lie when the standards have been ignored or violated.' " Carpet, Linoleum and Resilient Tile Layers, Local Union No. 419 v. Brown, 656 F.2d 564, 566 (10th Cir.1981) (quoting Davis Associates, Inc. v. Secretary, Dep't of Hous. and Urban Dev., 498 F.2d 385, 389 n. 5 (1st Cir.1974)).

The cases of Ganem v. Heckler, 746 F.2d 844 (D.C.Cir.1984), and Commonwealth of Pennsylvania v. National Ass'n of Flood Insurers, 520 F.2d 11 (3d Cir.1975), are illustrative.

In Ganem, the petitioner sought mandamus to compel the Secretary of Health and Human Services to determine whether the nation of Iran discriminated against Americans in its social service programs. The Secretary was required by law to determine whether such discrimination existed, and, if it did not, to award benefits to eligible Iranians. Ganem, 746 F.2d at 846. The Secretary chose to determine the content of Iranian law only by direct contact with Iranian officials, a practical impossibility because of the...