Quevedo-Roque v. United States Federal Bureau of Prisons

Filing 14

ORDER DENYING 12 , 13 Petitioner's Motion for Reconsideration signed by District Judge Anthony W. Ishii on 3/19/2013. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NESTOR QUEVEDO-ROQUE,

1:12-cv-00072-AWI-DLB (HC)

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Petitioner,

ORDER DENYING PETITIONER’S MOTION
FOR RECONSIDERATION

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v.
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(ECF Nos. 12, 13)
UNITED STATES FEDERAL BUREAU OF
PRISONS,

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Respondent.
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/

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On January 9, 2012, Petitioner, who is incarcerated, filed a writ of mandamus pursuant to
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28 U.S.C. § 1361. Petitioner sought to compel the respondent to conduct deportation
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proceedings. On August 3, 2012, the petition for writ of mandamus was dismissed and judgment
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was entered.
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On August 13, 2012, Petitioner filed a Rule 59(e) motion for reconsideration, and on
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October 19, 2012, Petitioner filed a motion to expedite a ruling on the reconsideration motion.
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(ECF Nos. 12, 13.) Petitioner contends that the Court’s dismissal order was made in clear error.
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Rule 59(e) is “an extraordinary remedy, to be used sparingly in the interests of finality
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and conservation of judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003).
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Relief under Rule 59(e) is generally appropriate under four circumstances, including the
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necessity of correcting “manifest errors of law or fact upon which the judgment is based.”
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Turner v. Burlington N. Santa Fe R.R., 338 F.3d 1058, 1063 (9th Cir. 2003).
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Petitioner cites to and relies on Taylor v. Garcia, 40 F.3d 299 (9th Cir. 1994) to argue

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that he has standing to bring this mandamus action. However, in 1995, the Ninth Circuit

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recognized that Taylor had been statutorily overruled and that incarcerated aliens may not seek

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mandamus relief to compel the INS to hold immediate deportation hearings. Campos v. I.N.S.,

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62 F.3d 311, 314 (9th Cir. 1995); Pedraza v. I.N.S., 1997 U.S. Dist. LEXIS 2500, *1-*2 (N.D.

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Cal. Mar. 3, 1997). Taylor does not aid Petitioner.

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As stated in the Court’s August 3, 2012, order, the statute governing deportation

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proceedings, 8 U.S.C. § 1228(a)(3), does not require the government to institute and conclude

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removal proceedings prior to the expiration of an alien’s sentence in a correctional facility. 28

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U.S.C. § 1228(a)(3)(B); Kim Thul Ouk v. U.S. Dept. of Justice Executive for Immigration and

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Naturalization, 2010 WL 98944, at *3 (W.D. Okla. 2010) (finding that alien serving criminal

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sentence has no right to request commencement or deportation or removal proceedings); Guerra

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v. United States Department of Homeland Sec., 2006 WL 3486017, at *3 (D.N.J. 2006) (“[A]

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prisoner cannot compel the BICE, by way of habeas or mandamus petition or the Administrative

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Procedure Act, to initiate removal proceedings while the alien is serving his prison term.”).

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Petitioner has not shown clear error. Petitioner’s motion is essentially a disagreement with the

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Court’s prior analysis, which is not sufficient grounds for reconsideration. United States v.

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Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001); see also Dimarco-Zappa v.

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Cabanillas, 238 F.3d 25, 34 (1st Cir. 2001).

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Based on the foregoing, Petitioner’s motion for reconsideration is DENIED.
IT IS SO ORDERED.

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Dated:
0m8i78

March 19, 2013
SENIOR DISTRICT JUDGE

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