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Lashchuk v. Holder

United States District Court, Ninth Circuit

September 9, 2013

LEONID LASHCHUK, Petitioner,
v.
ERIC HOLDER, Respondent.

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS (ECF No. 1)

STANLEY A. BOONE, Magistrate Judge.

Petitioner is proceeding pro se with a petition for writ of mandamus pursuant to 28 U.S.C. § 1361.

Petitioner filed the instant petition for writ of mandamus on August 26, 2013. Petitioner seeks an order to compel the Bureau of Prisons (BOP) to initiate and complete deportation or removal proceedings prior to his release date.

I.

DISCUSSION

A. Lack of Subject Matter Jurisdiction

A writ of mandamus is a petition to a court requesting an order to compel an officer or employee of the United States to perform a duty owed to the petitioner. 28 U.S.C. § 1361; see also Deutsch v. United States , 943 F.Supp. 276, 279 (W.D.N.Y. 1996). However, mandamus is an extraordinary remedy. Barron v. Reich , 13 F.3d 1370, 1374 (9th Cir. 1994) (citing Stang v. IRS , 788 F.2d 564, 565 (9th Cir. 1986)). A district court may issue a writ of mandamus under § 1361 "only when (1) the plaintiff's claim is clear and certain'; (2) the defendant official's duty to act is ministerial, and so plainly prescribed as to be free from doubt'; and (3) no other adequate remedy is available." Barron, at 1374 (quoting Fallini v. Hodel , 783 F.2d 1343, 1345 (9th Cir. 1986)). As a general rule, "mandamus may not be used to impinge upon an official's legitimate use of discretion." Id. at 1376. The only exception exists when "statutory or regulatory standards delimiting the scope or manner in which such discretion can be exercised... have been ignored or violated." Id . (internal quotations and citations omitted).

Congress has mandated that the BOP, under the direction of the Attorney General, shall have charge of the management and regulation of all federal penal and correctional institutions. 18 U.S.C. § 4042(a)(1). Congress has delegated to the BOP the authority to designate the institution of confinement. Title 18 U.S.C. § 3621(b) provides in pertinent part as follows:

(b) The Bureau of Prisons shall designate the place of the prisoner's imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering -
1) the resources of the facility contemplated;
2) the nature and circumstances of the offense;
3) the history and characteristics of the prisoner;
4) any statement by the court that imposed sentence-
A) concerning the purposes for which the sentence to imprisonment was ...

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