Martinez-Lopez v. USA, et al

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50038
Summary Calendar
MIGUEL MARTINEZ-LOPEZ,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA;
U.S. IMMIGRATION AND NATURALIZATION
SERVICE; R. D. MILES, Warden,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-00-CV-784-JN
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April 23, 2001
Before REAVLEY, DeMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:*
Miguel Martinez-Lopez appeals the district court’s denial of
his motion for immediate deportation and removal. He contends
that he is entitled to be immediately deported to Mexico because
he is a Mexican national, an order of removal has been entered
against him, and he has applied to be transferred to Mexico
pursuant to the Treaty on the Execution of Penal Sentences
between the United States and Mexico. Martinez is serving a 189-
month sentence for conspiracy to possess with intent to

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No. 01-50038
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distribute cocaine, possession with intent to distribute five or
more kilograms of cocaine, and laundering monetary instruments.
Orders of removal generally may not be executed until after
an alien is released from prison. See 8 U.S.C. § 1231(a)(1)(B);
8 U.S.C. § 1231(a)(4). Thus, Martinez’ assertion that the
existence of an order of removal against him requires his
immediate deportation is without merit. Additionally, section
1231 does not provide a private right of action to compel the
release or removal of an alien. See 8 U.S.C. § 1231(a)(4)(D).
The Attorney General is vested with discretion to determine
whether to seek the transfer of an alien prisoner pursuant to the
Treaty on the Execution of Penal Sentences. See 18 U.S.C.
§ 4102. Martinez has cited no authority for compelling such a
transfer. In light of the fact that the receiving state, Mexico,
also must approve the transfer, the district court did not err in
determining that it lacked authority to order Martinez’
deportation.
To the extent that Martinez seeks to raise new issues,
pertaining to relief under 28 U.S.C. § 2241 and an alleged
sentencing error under Apprendi v. New Jersey, 530 U.S. 466
(2000), we do not consider these issues because they are raised
for the first time on appeal. See Leverette v. Louisville Ladder
Co., 183 F.3d 339, 342 (5th Cir. 1999), cert. denied, 528 U.S.
1138 (2000).
AFFIRMED.

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