Conraad L. Hoever v. Department of Homeland Security , 637 F. App'x 565 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13886
Non-Argument Calendar
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D.C. Docket No. 0:15-cv-61376-WPD
CONRAAD L. HOEVER,
Plaintiff-Appellant,
versus
DEPARTMENT OF HOMELAND SECURITY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 8, 2016)
Before WILSON, ROSENBAUM and BLACK, Circuit Judges.
PER CURIAM:
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Conraad Hoever, a prisoner proceeding pro se, appeals the district court’s
dismissal, or, in the alternative, denial of his petition for a writ of mandamus,
pursuant to 28 U.S.C. § 1361, or a writ of prohibition, pursuant to 28 U.S.C.
§ 1651 (the All Writs Act), seeking to prohibit an immigration judge (IJ) from
holding a hearing with regard to his eligibility for relief under the United Nations
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (CAT). Hoever contends the district court erred in determining he was
not entitled to mandamus relief. He asserts he had no adequate remedy at law
because the IJ ignored and ruled ex parte on his motions and granted the
Department of Homeland Security’s motion to reopen without providing him an
opportunity for opposition. After review,1 we affirm the district court.
Pursuant to 28 U.S.C. § 1361, the district court has original jurisdiction over
any mandamus action to compel an officer or employee of the United States or any
agency thereof to perform a duty owed to the plaintiff. 28 U.S.C. § 1361. The test
for jurisdiction under 28 U.S.C. § 1361 is “whether mandamus would be an
appropriate means of relief.” Cash v. Barnhart, 327 F.3d 1252, 1258 (11th Cir.
2003). “Mandamus relief is only appropriate when: (1) the plaintiff has a clear
1
We review a district court's dismissal for lack of jurisdiction de novo. Hempel v.
United States, 14 F.3d 572, 575 (11th Cir. 1994). We review a district court's denial of a petition
for a writ of mandamus or of a petition brought pursuant to the All Writs Act for abuse of
discretion. See In re Stewart, 641 F.3d 1271, 1275 (11th Cir. 2011) (mandamus); Klay v. United
Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir. 2004) (All Writs Act).
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right to the relief requested; (2) the defendant has a clear duty to act; and (3) no
other adequate remedy is available.” Id. The party seeking mandamus has the
burden of demonstrating that his right to the writ is clear and indisputable. In re
BellSouth Corp., 334 F.3d 941, 953 (11th Cir. 2003). Thus, a plaintiff cannot
resort to the extraordinary remedy of mandamus where there is an adequate
alternative “avenue for relief,” such as where a statutory method of appeal has
been prescribed. Lifestar Ambulance Serv., Inc. v. United States, 365 F.3d 1293,
1295 (11th Cir. 2004).
A writ of prohibition, under the All Writs Act, requires a showing of
“exceptional circumstances amounting to a judicial usurpation of power” and is
reserved for extraordinary cases in which “the right to relief is clear and
undisputable” and the regular judicial-review process is inadequate to address the
petitioner’s claim. See In re Wainwright, 678 F.2d 951, 953 (11th Cir. 1982). The
All Writs Act does not provide an independent basis for federal jurisdiction.
Henson v. Ciba-Geigy Corp., 261 F.3d 1065, 1070 (11th Cir. 2001).
The Immigration and Nationality Act (INA) provides:
Judicial review of all questions of law and fact, including
interpretation and application of constitutional and statutory
provisions, arising from any action taken or proceeding brought to
remove an alien from the United States under this subchapter shall
be available only in judicial review of a final order under this
section. Except as otherwise provided in this section, no court shall
have jurisdiction . . . by [28 U.S.C. § 1361 and 28 U.S.C.
§ 1651] . . . to review such an order or such questions of law or fact.
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8 U.S.C. § 1252(b)(9). In addition, section (g) provides that:
Except as provided in this section and notwithstanding any other
provision of law . . . including [28 U.S.C. § 1361 and 28 U.S.C.
§ 1651] . . . no court shall have jurisdiction to hear any cause or claim
by or on behalf of any alien arising from the decision or action by the
Attorney General to commence proceedings, adjudicate cases, or
execute removal orders against any alien under this chapter.
8 U.S.C. § 1252(g). Decisions of IJs in removal proceedings are subject to
review by the Board of Immigration Appeals (BIA). See 8 C.F.R. § 1003.1(b)(3).
This Court has jurisdiction to review the BIA’s final order of removal. See 8
U.S.C. § 1252(a)(1).
The district court did not have jurisdiction over Hoever’s petition for a writ
of mandamus because he had an adequate alternative remedy for obtaining relief,
as the IJ scheduled a hearing with regard to his CAT claim and he could pursue
administrative appellate review with the BIA and then judicial review in this Court.
See 8 U.S.C. § 1252(a)(1); 8 C.F.R. § 1003.1(b); Lifestar Ambulance, 365 F.3d at
1295. The district court also lacked jurisdiction over his petition for a writ of
prohibition because the All Writs Act does not provide an independent basis for
jurisdiction and the INA strips jurisdiction from the district court with regard to
issues arising from the proposed removal of an alien. See 8 U.S.C. §§ 1252(b)(9)
and (g); Henson, 261 F.3d at 1070. Accordingly, we affirm.
AFFIRMED.
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