Carlos Soler v. Roger F. Scott, Warden, Fci-Safford, Az United States Bureau of Prisons U.S. Immigration and Naturalization Service

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

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…

dissenting:

I agree that Congress has said what it expects the INS to do, pretty clearly. But I disagree that Soler has made out a clear claim to relief on account of a duty owed to him, as the Mandamus Act requires. 28 U.S.C. § 1361 ; see Nova Stylings, Inc. v. Ladd, 695 F.2d 1179, 1180 (9th Cir.1983). Federal prisoners were not the intended beneficiaries of section 701 of the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1252 (i); the legislative history indicates that states, and overcrowded prisons, were. See 132 Cong.Rec. H9794-95 (daily ed. Oct. 9, 1986), S16909 (daily ed. Oct. 17, 1986); Gonzalez v. INS, 867 F.2d 1108, 1110 (8th Cir.1989). For this reason, I would affirm.

Unlike the majority, I also would not try to fashion a claim under the Administrative Procedure Act. Soler’s petition does not assert an APA claim, and we did not ask the government to brief the issue. While we are certainly obliged to construe pro se pleadings liberally, that obligation does not require us to go off on an untested theory. We could have appointed counsel for Soler and invited a response from the INS. Given that we have done neither, I respectfully dissent.

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: 1 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. 2 8 U.S.C. § 1252 (i) (1988). 3 Congress enacted Section 701 to accomplish a single objective: to require the INS to abandon its practice of postponing prisoner deportation hearings until…