1 28 U.S.C. § 1361 (1988).

2 5 U.S.C. §§ 500–706 (1988). United States Court of Appeals,

Fifth Circuit.

No. 92–1246.

Ulric Paul GIDDINGS, Plaintiff–Appellant,

v.

Ronald C. CHANDLER, District Director INS, et al., Defendants–Appellees.

Dec. 28, 1992.

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 deportati on 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 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 December3 Filing a detainer is an informal procedure in which the INS informs prison officials that a

person is subject to deportation and requests that officials give the INS notice of the person's

death, impending release, or transfer to another institution.

4 In Santana v. Chandler, 961 F.2d 514 (5th Cir.1992), we held that the interests of justice did

not require appointment of counsel to assist with inmates' mandamus or habeas claims.

5 Civil No. 3–91–1943–H (N.D.Tex. Dec. 17, 1991).

6 8 U.S.C. §§ 1101–1557 (1988). 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 deportati on proceedings. The inmates alleged, int er 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 cas e, t he 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 AP A. In his

findings, the magistrate judge quest i oned 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 reco mmended 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 opportuni ty to show that his or her position

was different from that of Luevano–Orozco. Giddings responded by filing written objections to the7 942 F.2d 597 (9th Cir.1991), vacated as moot, ––– U.S. ––––, 113 S.Ct. 454, ––– L.Ed.2d

–––– (U.S.1992).

8 Sively v. Soler, ––– U.S. ––––, 113 S.Ct. 454, ––– L.Ed.2d –––– (1992). The case had

become moot as Soler had been released from prison without obtaining a deportation hearing.

9 United States v. Munsingw ear Inc., 340 U.S. 36, 41, 71 S.Ct. 104, 107, 95 L.Ed. 36 (1950).

10 FDIC v. Ernst & Young, 967 F.2d 166, 169 (5th Cir.1992); Barrientos v. Reliance Standard

Life Ins. Co., 911 F.2d 1115, 1116 (5th Cir.1990), cert. denied, ––– U.S. ––––, 111 S.Ct. 795,

112 L.Ed.2d 857 (1991). 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

r emanded t o the Ninth Circuit for dismissal. 8 The Court's 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 S oler as m oot, however, does not prevent Giddings from

making the same arguments as those adopted by the Ninth Circuit . Although S oler 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

A. 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 t rial 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 the11 Baton Rouge Bldg. & Constr. Trades Council v. Jacobs Constructors, Inc., 804 F.2d 879,

881 (5th Cir.1986).

12 O'Quinn v. Manuel, 773 F.2d 605, 608 (5th Cir.1985).

13 INA § 701(i), 8 U.S.C. § 1252(i) (1988).

14 See, e.g., 132 C ONG .R EC . S16908–09 (Oct. 17, 1986) (Statement of Sen. Dole).

15 See 132 C ONG .R EC . H9794 (Oct. 9, 1986) (Statement of Rep. MacKay).

16 Id. at H9794.

17 Soler, 942 F.2d at 597. allegations." 11 In making this determination, we accept the well-pleaded allegations in a complaint

as true. 12

B. APPLICABLE LAW

In his quest to have his deportati on proceedings commenced, Giddin gs seeks to enf orce §

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 deportati on, the Attorney General shall begin any deportation proceeding as expeditiously as possible after the date of the conviction.

The legislative history behind § 701 demonstrates t hat t he 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 deportati on proceedings. 15 The expressed purpose of

§ 701(i) was to ease the problems of overcrowding and expense by "provid[ing]

... that deportati on

proceedings will begin when there is a conviction." 16

Gidd ings claims that he may enforce § 701(i) against the INS—i.e., compel the INS to

schedule his deportati on 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 deportati on, 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 t h e Ninth18

Aguirre v. Meese, 930 F.2d 1292 (7th Cir.1991) (finding that section 701(i) creates no

private right of action for convicted alien); Prieto v. Gluch, 913 F.2d 1159 (6th Cir.1990)

(same); Orozco v. United States INS, 911 F.2d 539 (11th Cir.1990) (holding that incarcerated

aliens could not compel immediate disposition of their cases through writ of habeas corpus);

Gonzalez v. United States INS, 867 F.2d 1108 (8th Cir.1989) (finding that section 701(i) creates

no private right of action under Mandamus and Venue Act).

19 867 F.2d at 1108.

20 Id. at 1109.

21 In the now vacated Soler, the Ninth Circuit reached a contrary result, holding that an implied

right of action is not necessary under the Mandamus Act. 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 Moreover, the INS maintains that the S oler 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

deportati on under a writ of habeas corpus or under an implied right of action to § 1252(i). Relying

on Soler for distinction, Giddin g s 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 o t her circuits is not entirely accurate. In

Gonzalez v. United States INS, 19 the Eighth Circuit reje ct ed 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 the22 Because we find the reasoning in Gonzalez applicable on other grounds, we need not address

whether a private right of action is required for mandamus relief.

23 Society of Separationists, Inc. v. Herman, 959 F.2d 1283, 1285 (5th Cir.1992) (en banc)

(citing Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)). 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 t his 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 determ ine whether there i s

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 Manda mus Act and the APA. And, to have standing under either

statute, Giddings m

ust sho w, int er 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 o f

action under § 1252(i) are applicable because the courts in those cases have considered: (1) whether

the plaint iff is an intended beneficiary of the statute; and (2) whether the creation of a right of action

wo uld co nflict with the purpose of the statute. As these are questions considered in determining

whether a plaint iff is within the "zone of interest," we deem the implied right of action cases to be

relevant.

C. STANDING

As we recently acknowledged, the doctrine o f "[s]tanding defies precise definition." 2 3

"Generalizations about standing to sue are largely worthless as such. One generalization is, however,

necessary and that is that the quest io n o f st anding in the federal courts is to be considered in the24

Association of Data Processing Serv. Orgs. Inc. v. Camp, 397 U.S. 150, 151, 90 S.Ct. 827,

829, 25 L.Ed.2d 184 (1970).

25 Gladstone Realtors v. Bellw ood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66

(1979).

26 Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48

L.Ed.2d 450 (1976).

27 Id. at 38, 96 S.Ct. at 1924.

28 Data Processing, 397 U.S. at 150, 90 S.Ct. at 829.

29 28 U.S.C. § 1361.

30 Nova Stylings, Inc. v. Ladd, 695 F.2d 1179 (9th Cir.1983) (quoting Jarrett v. Resor, 426

F.2d 213, 216 (9th Cir.1970), and Tagupa v. East–West Ctr., Inc., 642 F.2d 1127, 1129 (9th

Cir.1981)); see also United States v. United States Dist. Court, S. Dist. of Texas, 506 F.2d 383,

384 (5th Cir.1974) (Plaintiff must show a " "clear and indisputable' right to the extraordinary

writ.").

31 Green v. Heckler, 742 F.2d 237, 241 (5th Cir.1984). framework of Article III which restricts judicial power to "cases' and "controversies.' " 24 As

interpreted by the Supreme Court, Article III requires the plaint iff to make a three-fold showing: (1)

"that he personally has suffered some actual or threatened injury as a result of the putatively illegal

conduct of the defendant" 25 ; (2) that the injury "fairly can be traceable to the challenged action" 26 ;

and (3) that the injury "is likely to be redressed by a favorable decisi on." 2 7 In addition to the

constitutional requirements, the plaint iff must meet the statutory requirements of standing by coming

within its zone of protected persons. 28

1. Mandamus and Venue Act

The Mandamus Act vests district courts with original jurisdiction over "any action in t he

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." 29 Mandamus is an appropriate remedy "only when the plaintiff's

"claim is clear and certain and the duty of the officer is ministerial and so plainly prescribed as to be

free from doubt.' " 30 Thus, mandamus is not available to review the discretionary acts of officials. 3 1

For Giddings to have stand ing under t he Mandamus Act, he must not only satisfy the32 In Soler, the Ninth Circuit's conclusion that mandamus was an appropriate remedy was

premised first on its conclusion that the incarcerated alien had standing. The court reasoned that

the alien, Soler, met the constitutional requirements by alleging injury in fact in the form of illegal

incarceration, that the injury was caused by the INS' failure to begin deportation proceedings, and

the injury would be redressed by the holding of such proceedings. The INS, in harmony with the

magistrate's findings, takes issue with the conclusion that an alien, incarcerated pursuant to a legal

conviction, suffers injury in fact. For the purpose of this appeal, we assume that Giddings has met

the constitutional requirements.

33 See Jarecki v. United States, 590 F.2d 670, 675 (7th Cir.1979); CBS Inc. v. Young, 522

F.2d 234, 237–38 (6th Cir.1975); New York v. Heckler, 578 F.Supp. 1109 (E.D.N.Y.1984),

aff'd, 742 F.2d 729 (2d Cir.1984).

34 397 U.S. at 150, 90 S.Ct. at 829.

35 Id. at 153, 90 S.Ct. at 830.

36 Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 396, 107 S.Ct. 750, 755, 93 L.Ed.2d 757

(1987) (citations omitted).

37 Id. at 399–400, 107 S.Ct. at 757 (citations omitted) (emphasis added). constitutional requireme nt s o f injury, causation, and redressability, 3 2 but must also establish that a

duty is owed to him. Any duty owed to the plaintiff must arise from another statute—in this case §

1252(i)—or from the United States Constitution. When the right alleged stems from a statute, a duty

is owed to the plaint iff for the purpose of the Mandamus Act if—but only if—the plaint iff falls within

the "zone of interest" of the underlying statute. 33

The "zone of interest" test, first articulated by the Su preme Court i n A ssociation of Data

Processing Service Organizations, Inc. v. Camp, 34 requires that "the interests sought to be protected

by the complainant ... arguably [be] within the zone of interests to be protected or regulated by the

statute or constitutional guarantee in quest ion." 35 Although this test "has not proved

self-explanatory," 36 the Supreme Court has clarified it further by explaining:

The "zone of int erest " test is a guide for deciding whether, in view of Congress'

evident intent to make agency action presumptively reviewable, a particular plaintiff should

be heard to complain of a particular agency decision. In cases where the plaintiff is not itself

the subject of the contested regulatory action, the test denies a right of review if the plaintiff's

interests are so marginally related to or inconsistent with the purposes implicit in the statute

that it cannot reasonably be assumed that Congress intended to permit the suit. The test is

not meant to be especially demanding; in particular, there need be no indicat io n of

congressional purpose to benefit the would-be plaintiff. 37

Guided by this language, we consider whether § 1252(i) creates sufficient interests fo r38 Soler 942 F.2d at 605 (quoting Clarke, 479 U.S. at 403, 107 S.Ct. at 759).

39 Prieto, 913 F.2d at 1166.

40 See, e.g., Lujan v. Defenders of Wildlife, ––– U.S. ––––, 112 S.Ct. 2130, 119 L.Ed.2d 351

(1992). Giddings that his suit is not marginally related or inconsistent with the purpose of the statute. We

conclude that the Eighth Circuit's reasoning in Gonzalez, which found t hat such a suit woul d be

inco nsistent with the statute's main purposes of reducing prison overcrowding and cost to the

government, is persuasive. We therefore join the Sixth, Seventh, and Eleventh Circuits in following

the Eighth Circuit's reasoning in Gonzalez.

In Soler, the Ninth Circuit acknowledges that § 701 was enacted for the taxpayers' benefit and

not for the be nefit of the incarcerated alien. The court reasoned, however, that Soler's suit

"advance[d] the stated congression al purpose of reducing prison crowding caused by INS delay.

Soler's suit thus has a "plausible relationship to the policies' underlying Section 701." 38 In our view,

the Sixth Circuit, in Prieto v. Gluch, assessed the dilemma more accurately, stating:

Allowing criminal aliens to bring suit to compel the

Attorney General to begin their deportati on proceeding as expeditiously as possible, although

perhaps not inconsistent with the purposes of controlling the flow of drugs into the United

States and ameliorating the problem of prison overcrowding, does not seem to be consistent

wit h these purposes either. These purposes are not concerned with the rights o f criminal

aliens but rather with removing such aliens from the country. It would seem anomalous to

permit aliens to enforce section 1252(i) when that section is not concerned with aiding such

aliens. 39

We do not agree that all o wing a criminal alien to compel his own deportati on proceedings

furt hers the twin purposes of reducing prison overcrowding and saving taxpayer money. To the

contrary, there is evidence that the result would be to interfere with the Attorney General's

administration of the statute, thereby frustrating the statute's purposes, at least in part. In any event,

we do not agree that a person has standing simply because his or her suit may further the purposes

of the statute. If that were so, then one would have standing to sue any time that a lawsuit might be

deemed to further the purposes of any statute. Such an overbroad view of standing is inconsistent

with the decisions of the Supreme Court. 4041 Gonzalez, 867 F.2d at 1109.

Moreover, in our vie w it is inconsistent to grant a criminal alien a right to compel his

deportati on when the statute upon which he relies grants him no such right. Instead, while § 1252(i)

impo ses a duty on the Attorney General to begin proceedings once an alien is deemed depo rt able

because of a conviction, that statute also grants the Attorney General d i scretion to proceed "as

expeditiously as possible." As the Eighth Circuit explained in G onzalez, there is a distinction between

imposing a duty on a government official and vesting a right in a particular individual. 41 We read §

1252(i) as imposing a duty on the Attorney General to deport criminal aliens, but we stop short of

concluding that this creates a duty ow ed to the alien.

Thus, we hold that Giddings, as a criminal alien, does not possess a right under § 1252(i)

sufficient to bring him within the statute's zone of interest. Moreover, we conclude that allowing a

criminal alien to bring suit to compel his deportati on does not further the purposes of the statute, but

if anything hinders the Attorney General's abilit y to carry out his statutory duty "as expeditiously as

possible." Because Giddings does not fall within the "zone of interest" protected by § 1252(i), he has

no standing to invoke the Mandamus Act.

Relying on Soler, however, Giddings alleges that the Attor ney General has exceeded his

discretion under § 1252(i) by adopting a po licy of delaying the commencement of deportation

proceedings until an incarcerated alien has served his sen t ence. In S oler, the court accepted this

allegation as true without a specific finding of fact, and the outcom e of the decision relies in part on

the presumed existence of the policy. The S oler court reasoned that the existence of such a policy

exceeded the Attorney General's discreti o n, making his duty to act clear and therefore rendering

mandamus an appropriate remedy.

Because the instant case comes to us on appeal of a Rule 12(b)(6) dismissal, we are bound

to accept Giddings' allegations concerning the existence of the policy as true. Even assuming such

a policy existed, however, the outcom e of this case does not change. The court in S oler reached its

decision that mandamus was an appropriate remedy after first determining that the criminal alien had

s tanding. In the instant case, however, even if the Attorney General is in violation of his duty,42 5 U.S.C. § 702.

43 Id. § 706.

44 The INS argues that its adjudicatory proceedings under § 1252 are not governed by the

APA. We do not reach this issue as it is clear from our discussion of the "zone of interest" test

that Giddings lacks standing. Giddings lacks standing because we hold today that such a duty is not ow ed t o him. Therefore,

Giddings allegation regarding the INS policy on de layed depo rt ation of prisoners, even if true, is

unpersuasive.

2. APA Claim

In addition to his request for mandamus relief, Giddings seeks to compel his deportati on under

§ 702 of the APA, which grants a "person suffering legal wrong because of agency action within the

meaning of a relevant statute" 42 standing to "compel agency action unlawfully w ithheld or

unreasonably delayed." 43 But, standing under the APA is determined by applying the same "zone of

interest" test as applied to determine standing in the mandamus context; thus, Giddings' APA claim

must also fail f

o r lack of standing because he does not come within the "zone of interest" of §

1252(i). 44

III

CONCLUSION

Faced with a question of first impression, whether a criminal alien has the right to compel the

INS to commence deportati on proceedings against him under § 1252(i), we join those circuits which

hold that one so situated has no right to compel the INS to take such action. Although we concur

in the results reached by these circuits, our reasoning is somewhat different: our conclusion rests on

our holding today that a criminal alien lacks standing to bring suit under either the Mandamus Act

or the APA because criminal aliens do not fall within the "zone of interest" of § 1252(i) and thus have

no standing to compel the INS to commence deportati on proceedings. The district court's dismissal

pursuant to Rule 12(b)(6) is thus

AFFIRMED.