Opinion
No. CV 04-2878-PHX-MHM (JRI).
January 8, 2006
ORDER
Plaintiff James Eldon Rogers, who is confined in the Eyman Complex of the Arizona State Prison in Florence, Arizona, has filed a pro se "Motion" to compel the Immigration and Naturalization Service ("INS") to immediately remove him from the United States. (Doc. #1). Plaintiff has also filed a Petition for Psychological Examination (Doc. # 4) and a Motion to Withdraw and Amend (Doc. # 6). The motions will be denied and the action will be dismissed.
The INS ceased to exist as an independent agency within the Department of Justice and its functions were transferred to the newly formed Department of Homeland Security on March 1, 2003.See Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002).
BACKGROUND
Plaintiff is in state custody serving a life sentence on his first degree murder conviction. Plaintiff alleges that the INS served him with a document charging that he was subject to removal from the United States as an alien who has been convicted of an aggravated felony. Plaintiff argues that the INS is now required to complete the process it has started and he therefore seeks an order compelling the INS to take him into its custody and immediately deport him from the United States.
Plaintiff asserts that this action "cannot be construed in anyway as a habeas action . . . and is not a civil action." Doc. # 1 at 9. Instead, he insists the action is a "request that the INS follow the law as written, that the service complete the action it has itself began (sic)." Id. In his subsequent Motion to Withdraw and Amend (Doc. # 6), Plaintiff requests that he be allowed to withdraw his original pleading so that he may bring it as a habeas corpus action. Arguably, this action is more appropriately brought as a petition for writ of mandamus under 28 U.S.C. § 1361 because Plaintiff seeks to compel the INS to perform a duty he claims it owes to him. See 28 U.S.C. § 1361 ("[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"). But the Court need not decide which cause of action is more appropriate because Plaintiff has no private right of action at all for the relief he seeks.
DISCUSSION
The United States Attorney General "may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment," unless the alien falls within one of the specific statutory exceptions. 8 U.S.C. § 1231(a)(4)(A). The only exception that is even arguably relevant to Plaintiff provides that:
The Attorney General is authorized to remove an alien . . . before the alien has completed a sentence of imprisonment —
. . . .
(ii) in the case of an alien in the custody of a State (or a political subdivision of a State), if the chief State official exercising authority with respect to the incarceration of the alien determines that (I) the alien is confined pursuant to a final conviction for a nonviolent offense (other than [certain firearms or explosive materials offenses]), (II) the removal is appropriate and in the best interest of the State, and (III) submits a written request to the Attorney General that such alien be so removed.8 U.S.C. § 1231(a)(4)(B). Here, Plaintiff does not allege that each of the conditions set forth in § 1231(a)(4)(B)(ii) has been met. But even if those conditions have been met in his case, Plaintiff does not have a private right of action to enforce the provision. The removal statute specifically provides that "[n]o cause or claim may be asserted under this paragraph against any official of the United States or of any State to compel the release, removal, or consideration for release or removal of any alien." 8 U.S.C. § 1231(a)(4)(D); see also United States v. Aispuro, 127 F.3d 1133, 1134 (9th Cir. 1997) (holding that 8 U.S.C. § 1252(h), redesignated as 8 U.S.C. § 1231(a)(4) by Illegal Immigration Reform and Immigrant Responsibility Act of 1996, does "not create a private right of action that would allow a convicted alien . . . to compel the Attorney General to deport him"). Accordingly, this action has no arguable basis in law and it will be dismissed.
IT IS ORDERED that the "Motion" to Compel Removal (Doc. # 1) and this action are dismissed. The Clerk of Court shall enter judgment accordingly.
IT IS FURTHER ORDERED that Plaintiff's Petition for Psychological Examination (Doc. # 4) and Motion to Withdraw and Amend (Doc. # 6) are denied.