IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-1212

CELEDONIO SANTANA,

Plaintiff-Appellant,

versus

RONALD CHANDLER, District Director, INS, ET AL., Defendants-Appellees.

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Appeal from the United States District Court
for the Northern District of Texas

( May 12, 1992)

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BEFORE JONES, DUHÉ and WIENER, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the motion of Pl aintiff-Appellant

Celedonio Santana for appointment of counsel on appeal be and it is

hereby DENIED.

Acting pro se, Santana, an alien imprisoned in a federal

correctional institution, petitioned the district court for a writ

of mandamus to compel the Immigration and Naturalization Service

(INS) to commence deportation pro ceedings against him. Santana

alleges that he is under an immigration detainer, "with the1 929 F.2d 1078, 1084 (5th Cir. 1991) (citing Ulmer v.

Chancellor , 691 F.2d 209, 212-13 (5th Cir. 1982)). (civil rights
case).

2 Pennsylvania v. Finley , 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987).

3 See Self v. Blackburn , 751 F.2d 789, 793 and n.19 (5th Cir. 1985).

2 expect ation that Petitioner be the subject of deportation

proceedings to begin after service of sentence." The district

court granted Santana permission to proceed in forma pauperis

(IFP).

Construing Santana's petition liberally as requesting

both mandamus and habeas relief, the magistrate judge recommended

dismissal of the mandamus action for failure to state a claim on

which relief may be granted. Dismissal of the habeas action was

recommended for lack of j urisdiction because Santana was not "in

custody" of the INS. The district court adopted the magistrate

judge's recommendations and entered judgment accordingly.

We may appoint counsel to represent an appellant

proceeding IFP in a civil action pursuant to 28 U.S.C. § 1915(d).

Such an appointment is appropriate in a case that presents

"exceptional circumstances." Among the factors to consider when

deciding whether to appoint counsel are those discussed in Cooper

v. Sheriff

. 1

Although there is no constitutional right to counsel in

habeas corpus actions, 2 the Fifth Circuit Plan Under the Criminal

Justice Act ( Fifth Circuit Plan) provides for appointment of

counsel in habeas corpus actions. 3 Under the Fifth Circuit Plan we4 Fifth Circuit Plan § 2.

5 942 F.2d 597 (9th Cir. 1991).

6 28 U.S.C. § 1361.

7 5 U.S.C. §§ 701-706.

8 8 U.S.C. § 1252(i).

9 Soler , 942 F.2d at 601-05.

3 may provide representation for any financially eligible person who

is seeking relief under 28 U.S.C. § 2241 whenever we determine that

"the interests of justice so require." 4 The Fifth Circuit Plan

thus leaves appointment of counsel to the discretion of this court.

Santana relies on the Ninth Circuit case of Soler v.

Scott

, 5 to support his mandamus a ction. In S oler

, the Ninth

Circuit he ld that an alien prisoner may state a claim under the

Man damus and Venue Act 6 (MVA) or the Administrative Procedure Act

(APA) 7 to compel the INS to perform its duty to "begin any

deportation proceeding as expeditiously as possible after the date

of the conviction." 8 The S oler court held that petitioners seeking

to compel performance through mandamus or APA action need not

depend on t he existence of private rights of action to state a

claim. It also held that a petitioner had standing under both the

MVA and the APA. 9

The Six th, Seventh, Eighth and Eleventh Circuits hold

that an alien prisoner may not state a claim to compel the INS to

begin a deportation hearing pursuant to 8 U.S.C. § 1252(i). Those

circuits hold that § 1252(i) does not imply a cause of action for10 Aguirre v. Meese , 930 F.2d 1292, 1293 (7th Cir. 1991);

Prieto v. Gluch , 913 F.2d 1159, 1165-66 (6th Cir. 1990), cert. denied , 111 S.Ct. 976 (1991); Orozco v. United States Immigration
and Naturalization Serv. , 911 F.2d 539, 541 (11th Cir. 1990); Gonzalez v. United States Immigration and Naturalization Serv.

, 867 F.2d 1108, 1109-10 (8th Cir. 1989).

11 Prieto , 913 F.2d at 1162-64; Orozco , 911 F.2d at 541.

12 See United States ex. rel. Marcello v. District Director, Immigration & Naturalization Service , 634 F.2d 964, 970

4 alien prisoners and that prisoners therefore may not rely on that

section for mandamus or other relief. 10

Whether an alien prison er may obtain mandamus or other

relief compelling INS to begin deportation hearings is an issue of

first impression before this c ourt. It is also an issue of

sufficient complexity that a pro se prisoner, particularly an alien

with language difficulties, would no t be expected to present it

satisfactorily. On the other hand, the Eighth and Ninth Circuits

provide extensive discussions in Gonzalez and Soler

, respectively,

that may serve to guide us, in light of which it is doubtful that

an attorney could provide more than marginal assistance to Santana

or to this court. Appointment of counsel therefore is unnecessary

to assist Santana with his mandamus claim.

Regarding any habeas claim Santana may have raised, the

controlling issue is whether he was in custody of the INS when he

filed his petition. There is no Fifth Circuit precedent precisely

on this point either, but other circuits hold that a prisoner under

INS detainer is not in custody of INS for habeas purposes. 11 Such

a result is consistent with other holdings of this court under

different but similar circumstances. 12 As with Santana's mandamus(5th Cir.) (deportation order alone does not place alien in

custody), cert. denied , 452 U.S. 917 (1981).

5 claim, the interests of justice do not require appointment of

counsel to assist with his habeas claim either.