noting that in Aguilar- 11 Aguilar v. Napolitano, 700 F.3d 1238 (10th Cir. 2012), DHS “secured a final order of removal 12 through the expedited removal process” based on a petitioner’s “conviction for an aggravated 13 felony”
How later courts described this case
- noting that in Aguilar- 11 Aguilar v. Napolitano, 700 F.3d 1238 (10th Cir. 2012), DHS “secured a final order of removal 12 through the expedited removal process” based on a petitioner’s “conviction for an aggravated 13 felony”
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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9 RUBEN DARIO PERLAZA, Case No. 1:24-cv-00693-EPG-HC
10 Petitioner, FINDINGS AND RECOMMENDATION TO
GRANT RESPONDENT’S MOTION TO
11 v. DISMISS AND DISMISS THE PETITION
FOR WRIT OF HABEAS CORPUS
12 WARDEN,
ORDER DIRECTING CLERK OF COURT
13 Respondent. TO ASSIGN DISTRICT JUDGE
14 (ECF No. 15)
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16 Petitioner Ruben Dario Perlaza is a federal prisoner proceeding pro se with a petition for
17 writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the
18 undersigned recommends granting Respondent’s motion to dismiss and dismissing the petition
19 for writ of habeas corpus.
20 I.
21 BACKGROUND
22 On March 21, 2022, Petitioner was sentenced to an imprisonment term of fifty-six
23 months by the United States District Court for the Southern District of California for possession
24 of cocaine with intent to distribute on board a vessel. (ECF No. 15-1 at 3.1) Petitioner is currently
25 confined at the Federal Correctional Institution in Mendota, California. (ECF No. 1 at 1.)
26 On April 22, 2024, Petitioner filed the instant petition for writ of habeas corpus in the
27 United States District Court for the Southern District of California. (ECF No. 1.) The petition
1 was transferred to this Court June 13, 2024. (ECF Nos. 7, 8.) In the petition, Petitioner
2 challenges a Federal Bureau of Prisons’ (“BOP”) policy of refusing to allow prisoners with
3 immigration detainers to apply First Step Act (“FSA”) time credits (“FTCs” or “ETCs”). (ECF
4 No. 1.) On August 13, 2024, Respondent filed a motion to dismiss the petition, arguing that: (1)
5 “Petitioner’s FSA ETC claim must be jurisdictionally dismissed for lack of constitutional
6 standing and failure to state a claim under law” because “Petitioner has suffered a final order of
7 removal”; (2) “Petitioner lacks statutory authority under § 2241 to compel BOP’s FSA ETC
8 discretionary (sentence end-phase programming) action via declaratory and advisory opinions”;
9 and (3) “Petitioner has not administratively challenged any finding related to FSA ETC earning
10 calculation determinations, and/or ineligibility to apply FSA ETC sentence-offsets prior to filing
11 the instant petition.” (ECF No. 15 at 2–4.)
12 As Respondent had not provided the Court with a copy of the final order of removal
13 itself, the Court ordered Respondent to file a copy of the purported final order of removal. (ECF
14 No. 16.) Respondent filed a copy of the final order of removal under seal. (ECF No. 22.) On
15 November 14, 2024, Petitioner filed a response to the purported final order of removal. (ECF No.
16 24.)
17 II.
18 DISCUSSION
19 A. First Step Act
20 “On December 21, 2018, the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194,
21 was enacted. The Act implemented a number of prison and sentencing reforms.” Bottinelli v.
22 Salazar, 929 F.3d 1196, 1197 (9th Cir. 2019). Under the First Step Act, a “prisoner, except for an
23 ineligible prisoner under subparagraph (D), who successfully completes evidence-based
24 recidivism reduction programming or productive activities, shall earn time credits[.]” 18 U.S.C.
25 § 3632(d)(4)(A). “Time credits earned under this paragraph by prisoners who successfully
26 participate in recidivism reduction programs or productive activities shall be applied toward time
27 in prerelease custody or supervised release.” 18 U.S.C. § 3632(d)(4)(C). However, a “prisoner is
1 order of removal under any provision of the immigration laws (as such term is defined in section
2 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17))).” 18 U.S.C.
3 § 3632(d)(4)(E)(i).
4 B. Exhaustion
5 “As a prudential matter, courts require that habeas petitioners exhaust all available
6 judicial and administrative remedies before seeking relief under § 2241.” Ward v. Chavez, 678
7 F.3d 1042, 1045 (9th Cir. 2012) (citations omitted). However, because it is not a jurisdictional
8 prerequisite, exhaustion can be waived. Id. (citations omitted). “Exhaustion is not required if: (1)
9 administrative remedies would be futile; (2) the actions of the agency clearly and unambiguously
10 violate statutory or constitutional rights; or (3) the administrative procedure is clearly shown to
11 be inadequate to prevent irreparable injury.” Terrell v. Brewer, 935 F.2d 1015, 1019 (9th Cir.
12 1991).
13 The BOP grievance process is set forth at 28 C.F.R. § 542.10 et seq. “As a first step in
14 this process, an inmate normally must present his complaint informally to prison staff using a
15 BP–8 form.” Nunez v. Duncan, 591 F.3d 1217, 1219 (9th Cir. 2010). “If the informal complaint
16 does not resolve the dispute, the inmate may make an ‘Administrative Remedy Request’
17 concerning the dispute to the prison Warden using a BP–9 form.” Nunez, 591 F.3d 1219. “If the
18 Warden renders an adverse decision on the BP–9, the inmate may appeal to the Regional
19 Director using a BP–10 form.” Nunez, 591 F.3d 1219. “The inmate may appeal an adverse
20 decision by the Regional Director to the Central Office (also called the General Counsel) of the
21 BOP using a BP–11 form.” Nunez, 591 F.3d 1219. A final decision from the Office of General
22 Counsel completes the BOP’s administrative remedy process. 28 C.F.R. § 542.15(a).
23 Here, it is undisputed that Petitioner failed to exhaust administrative remedies. Petitioner
24 contends that exhaustion is futile. (ECF No. 1 at 7; ECF No. 1-2 at 6–8.) The Court finds the
25 exhaustion requirement should be waived in the instant matter. Given Respondent’s
26 determination that Petitioner is “jurisdictionally and statutorily barred from FSA ETC sentence-
27 offsets due to the final order of removal,” (ECF No. 15 at 3), pursuing administrative remedies
1 C. Final Order of Removal
2 A prisoner is ineligible to apply FTCs “if the prisoner is the subject of a final order of
3 removal under any provision of the immigration laws (as such term is defined in section
4 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17))).” 18 U.S.C.
5 § 3632(d)(4)(E)(i). Respondent contends that Petitioner is ineligible to apply FTCs as he is the
6 subject of a final order of removal. (ECF No. 15 at 3.) Respondent has filed a copy of a Notice
7 and Order of Expedited Removal2 under section 235(b) of the Immigration and Nationality Act
8 (8 U.S.C. § 1225(b)) that was issued against Petitioner on April 16, 2024. (ECF No. 22.) The
9 order states that DHS “has determined that you are inadmissible to the United States under
10 section 212(a)(7)(A)(i)(I)” and orders that Petitioner be “removed from the United States.” (Id.)
11 Petitioner argues the Form I-860 is not a final order of removal and has not been signed
12 by an immigration judge. (ECF No. 24 at 1–2.) However, “[e]xpedited removal proceedings
13 involve, as the name suggests, a streamlined process through which certain non-citizens—such
14 as those apprehended at or near the border soon after entry—may be removed from the United
15 States without a hearing before an immigration judge.” Alvarado-Herrera, 993 F.3d at 1190
16 (emphasis added). “Expedited removal orders are entered by DHS immigration officers, not by
17 immigration judges, and judicial review of such orders is severely curtailed.” Alvarado-Herrera,
18 993 F.3d at 1190 (emphasis added).
19 Petitioner also argues that the certificate of service section is blank, which makes “clear
20 this form has never been served on Petitioner and can not be final.” (ECF No. 24 at 1.) Judicial
21 review of expedited removal orders is limited
22 to three narrow issues, each of which must be raised in habeas
corpus proceedings: “whether the petitioner is an alien”; “whether
23 the petitioner was ordered removed” under an expedited removal
order; and whether the petitioner can prove that he or she has
24 lawful status in the United States as an asylee, refugee, or
permanent resident.
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26 Alvarado-Herrera, 993 F.3d at 1192 (quoting 8 U.S.C. § 1252(e)(2)). In Alvarado-Herrera, the
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2 “[T]he form on which DHS issues expedited removal orders [is] Form I-860[.]” Alvarado-Herrera v.
1 Ninth Circuit rejected the petitioner’s argument that an expedited removal order was invalid
2 because the record did not show whether the petitioner signed the Form I-860 acknowledging
3 receipt. The Ninth Circuit concluded that such a challenge did “not fall within any of the
4 categories of reviewable issues[.]” Alvarado-Herrera, 993 F.3d at 1192.
5 “[I]n the deportation context, a ‘final order of removal’ is a final order ‘concluding that
6 the alien is deportable or ordering deportation.’” Nasrallah v. Barr, 590 U.S. 573, 579 (2020)
7 (quoting 8 U.S.C. § 1101(a)(47)(A)). Here, the order of expedited removal states that Petitioner
8 is inadmissible and orders that Petitioner be removed from the United States. (ECF No. 22.) The
9 Ninth Circuit has recognized that expedited removal proceedings result in final orders of
10 removal. See Lopez v. Garland, 40 F.4th 996, 1001 (9th Cir. 2022) (noting that in Aguilar-
11 Aguilar v. Napolitano, 700 F.3d 1238 (10th Cir. 2012), DHS “secured a final order of removal
12 through the expedited removal process” based on a petitioner’s “conviction for an aggravated
13 felony”), cert. denied sub nom. Luvian v. Garland, 143 S. Ct. 2461 (2023); Alcala v. Holder, 563
14 F.3d 1009, 1014 (9th Cir. 2009) (discussing Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007),
15 wherein “the expedited proceeding . . . had resulted in a final order of removal”).
16 Petitioner is the subject of a removal order issued via expedited removal proceedings,
17 which the Ninth Circuit has recognized results in final orders of removal, and thus, Petitioner is
18 ineligible to apply time credits under the First Step Act. See Gomez-Cuzme v. Birkholz, No.
19 2:23-cv-01753-ODW-SHK, 2023 WL 4423602, at *3 (C.D. Cal. June 1, 2023) (“Here, Petitioner
20 is subject to a final removal order under section 235(b)(1) of the Immigration and Nationality
21 Act (“INA”), and is thus ineligible to apply time credits under the First Step Act.”), findings and
22 recommendation accepted, 2023 WL 4422830 (C.D. Cal. July 7, 2023); Ceron v. Engleman, No.
23 CV 23-3388-SSS (AGR), 2024 WL 967858, at *2 (C.D. Cal. Jan. 24, 2024) (“Petitioner is
24 subject to a[n expedited] final order of removal and thus statutorily ineligible for FSA’s earned
25 time credits.”), findings and recommendation accepted, 2024 WL 968850 (C.D. Cal. Mar. 6,
26 2024). Accordingly, the Court finds that Petitioner “is the subject of a final order of removal” for
27 purposes of 18 U.S.C. § 3632(d)(4)(E)(i), and thus, is ineligible to apply FTCs toward time in
1 | claim for habeas relief under 28 U.S.C. § 2241.7
2 Il.
3 RECOMMENDATION & ORDER
4 Based on the foregoing, the undersigned HEREBY RECOMMENDS that Respondents’
5 | motion to dismiss (ECF No. 15) be GRANTED and the petition for writ of habeas corpus be
6 | DISMISSED.
7 Further, the Clerk of Court is DIRECTED to randomly assign a District Court Judge to
8 | the present matter.
9 This Findings and Recommendation is submitted to the assigned United States District
10 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local
11 | Rules of Practice for the United States District Court, Eastern District of California. Within
12 | THIRTY (30) days after service of the Findings and Recommendation, any party may file
13 | written objections, no longer than fifteen (15) pages, including exhibits, with the Court and
14 | serve a copy on all parties. Such a document should be captioned “Objections to Magistrate
15 | Judge’s Findings and Recommendation.” Replies to the objections shall be served and filed
16 | within fourteen (14) days after service of the objections. The assigned United States District
17 | Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C).
18 | The parties are advised that failure to file objections within the specified time may waive the
19 | right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.
20 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.
22 Dated: _ December 2, 2024 [sl ey
UNITED STATES MAGISTRATE JUDGE
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Fn □□ ee ee Snes
ng | Paine: eke stony auton under § 2241 compel BOP FSA EL csereonay (tee en