HLD-026      (October 29, 2010)                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                        No. 10-2967
                                        ___________

                          IN RE: GONZALO MOTA-RIVERA,
                                                       Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (E.D. Pa. Civ. No. 10-02531)
                       District Judge: Honorable John P. Fullam
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   October 29, 2010
          Before: McKEE, Chief Judge, ALDISERT and WEIS Circuit Judges

                            (Opinion filed: February 15, 2011)
                                        _________

                                OPINION OF THE COURT
                                      _________

PER CURIAM.

              On April 25, 2008, Gonzalo Mota-Rivera pleaded guilty in the United

States District Court for the Southern District of California to illegally reentering the

United States, in violation of 8 U.S.C. § 1326(a) and (b). Mota-Rivera was sentenced to

a term of 70 months‟ imprisonment. At the end of that term – September 23, 2014,

according to Mota-Rivera – he is to be removed to his native Mexico. Mota-Rivera,
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however, does not want to wait until then; he filed this mandamus petition under 28

U.S.C. § 1361 in the United States District Court for the Eastern District of Pennsylvania

on April 26, 2010, demanding that he be immediately removed to Mexico.

              The District Court dismissed the mandamus petition. It rejected Mota-

Rivera‟s reliance on Soler v. Scott, 

(9th Cir. 1991), and explained that

Soler‟s holding was superseded by the Immigration and Nationality Technical

Corrections Act of 1994, Pub. L. No. 103-416, 108 Stat. 4305. See Campos v. INS, 

, 313-14 (9th Cir. 1995). The District Court also based its decision on Perez v.

INS, 

(3d Cir. 1992), in which we held that “a prisoner „cannot by

mandamus or any other medium compel INS to deport her prior to the completion of her

custodial 

(quoting Medina v. United States, 

, 514 (E.D. Pa. 1992)). Mota-Rivera appealed.

              We have jurisdiction under 28 U.S.C. § 1291. The District Court‟s denial

of mandamus relief is reviewed for abuse of discretion. Arnold v. Blast Intermediate

Unit 17, 

, 125 (3d Cir. 1988). We may summarily affirm a judgment of the

District Court if the appeal does not present a substantial question. LAR 27.4; I.O.P.

10.6. We conclude that this is such an appeal, as Mota-Rivera‟s request for relief under

§ 1361 is clearly foreclosed by our holding in Perez. Accordingly, we will summarily

affirm the District Court‟s judgment.




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