December 10, 1963
MARIO J. DELUCIA, APPELLANT,
UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE.
Before STALEY, GANEY and SMITH, Circuit Judges.
Appellant, Mario J. DeLucia, alleging that he is presently confined in the New Jersey State Prison at Trenton, New Jersey, seeks a writ of mandamus compelling the Immigration and Naturalization Service ("Service") to take custody of him. From the papers he filed in this court, it appears that the New Jersey Parole Board approved parole for DeLucia on condition that he be deported. He had previously been found to be deportable by the Service. However, the Service has been unable to obtain a travel document for him from the Italian consul who refuses to issue one because parole is only for the purpose of deportation.
The mere recitation of these facts makes it manifest that appellant is not entitled to the extraordinary relief he seeks. Not only has the Service done everything in its power to effect deportation, but since appellant is still within the custody of New Jersey authorities upon a valid sentence of imprisonment, this court lacks power to compel the Service to take custody of him.
The order of the district court will be affirmed.
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