U.S. Court of Appeals for the Third Circuit, 2006

Lauersen v. Durling

U.S. Court of Appeals for the Third Circuit · Decided July 13, 2006 · Fuentes, Van Antwerpen Chagares

187 F. App'x 250

Opinion

OPINION

PER CURIAM.

Dr. Neils H. Lauersen appeals from an order of the United States District Court *251 for the Middle District of Pennsylvania, denying his petition for a writ of mandamus. 1 We will affirm.

Lauersen, a native and citizen of Denmark, was issued a Notice to Appear, charging him with being removable for having committed an aggravated felony. An Immigration Judge (IJ) found him removable as charged on January 18, 2006. On February 7, 2006, Lauersen filed a petition for writ of mandamus in the District Court, arguing that the IJ lacked jurisdiction because his criminal conviction was on direct appeal.

The District Court properly denied the petition, noting that relief pursuant to 28 U.S.C. § 1361 2 is only available if the plaintiff “has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) (citations omitted). At the time Lauersen filed his petition, he had not appealed the IJ’s decision to the Board of Immigration Appeals (BIA). 3 Thus, the Court properly denied his petition for lack of jurisdiction. We further note that to the extent Lauersen sought review of his order of removal, the District Court lacked jurisdiction for another reason — pursuant to 8 U.S.C. § 1252(a)(5), a “petition for review filed with an appropriate court of appeals ... shall be the sole and exclusive means for judicial review of an order of removal.”

For the foregoing reasons we will affirm the order of the District Court.

. We note that Lauersen filed a Motion to Alter or Amend Judgment, and a Motion to Reconsider the denial of the first motion. As Lauersen has not filed an appeal from the orders denying those motions, we do not discuss them here.

. Section 1361 gives district courts jurisdiction over a 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.

. We take judicial notice that the BIA has since denied Lauersen’s motion to remand to the IJ for reconsideration and has dismissed his appeal. Lauersen filed a petition for review of that decision, docketed in this Court at C.A. No. 06-3034, and that appeal is pending.

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