Luis Arango-alvarez, Petitioner-appellant, v. Immigration and Naturalization Service, Respondent-appellee, 85 F.3d 628 (6th Cir. 1996)

ORDER

Luis Arango-Alvarez, a federal prisoner, moves for pauper status, requests the appointment of counsel and appeals a district court order dismissing his petition for a writ of mandamus pursuant to 28 U.S.C. § 1361. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Arango-Alvarez is serving a 121 month sentence arising out of his 1989 conviction of conspiracy to distribute cocaine and possession of a firearm in relation to a drug crime. His conviction also makes him subject to deportation, as he is a native and citizen of Colombia. The INS has issued a detainer to that effect to the Bureau of Prisons. Arango-Alvarez initiated this mandamus petition in reliance on 8 U.S.C. § 1252(i), which provides that deportation proceedings should begin as expeditiously as possible after a conviction. He sought an immediate deportation hearing. The district court dismissed the petition for lack of subject matter jurisdiction.

Upon review, we conclude that the petition was properly dismissed, as 8 U.S.C. § 1252(i) does not create a private cause of action. See Prieto v. Gluch, 913 F.2d 1159, 1161 (6th Cir. 1990), cert. denied, 498 U.S. 1092 (1991). The contrary authority upon which Arango-Alavarez relies, Garcia v. Taylor, 40 F.3d 299, 301 (9th Cir. 1994), has been overruled by statute, as stated in Campos v. INS, 62 F.3d 311, 314 (9th Cir. 1995). See also Hernandez-Avalos v. INS, 50 F.3d 842, 844 (10th Cir.), cert. denied, 116 S. Ct. 92 (1995).

Accordingly, the request for counsel is denied, the motion for pauper status is granted for purposes of this review, and the district court's order is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.