The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SEAN ATH, : CIVIL ACTION NO. 3:24-CV-2187
:
Petitioner : (Judge Neary)
:
v. :
:
J. GREENE, :
:
Respondent :
MEMORANDUM
This is a habeas corpus case filed under 28 U.S.C. § 2241. Petitioner, Sean
Ath, argues that the United States Bureau of Prisons (“BOP”) has improperly
deemed him ineligible for time credits under the First Step Act (“FSA”). The
petition will be denied.
I. Factual Background & Procedural History
Ath is serving a 120-month sentence of imprisonment imposed by the United
States District Court for the District of South Carolina for conspiracy to possess
with intent to distribute methamphetamine, use of a communication facility to aid a
felony drug offense, and possession with intent to distribute methamphetamine.
(Doc. 6-2 at 2). He is currently housed in Allenwood Low Security Correctional
Institution (“LSCI-Allenwood”).
Ath filed his petition for writ of habeas corpus on December 13, 2024, and it
was received and docketed on December 18, 2024. (Doc. 1). Ath, who is a native and
citizen of Cambodia, asserts that the BOP has deemed him ineligible for time
credits under the FSA because he is subject to a final order of removal from the
United States. (Id. at 5). He argues that this is improper because he is challenging
his removal order on appeal, and it therefore is “not final.” (Id.) Respondent
responded to the petition on February 18, 2025, arguing that the petition should be
denied because Ath’s removal order qualifies as final, and he is therefore ineligible
for FSA time credits. (Doc. 7).
II. Discussion
The FSA allows eligible inmates who successfully complete “evidence-based
recidivism reduction programs” (“EBRRs”) or productive activities (“PAs”) to
receive earned time credits to be applied toward time in pre-release custody or
supervised release. 18 U.S.C. § 3632(d)(4)(A). An inmate may earn ten days of credit
for every thirty days of successful participation. Id. Eligible inmates who have been
assessed at a minimum or low risk of recidivism who do not increase their risk of
recidivism over two consecutive assessments may earn an additional five days of
credit for every thirty days of successful participation. Id. A prisoner is ineligible to
have FSA time credits applied to his sentence if he “is the subject of a final order of
removal under any provision of the immigration laws.” 18 U.S.C. § 3632(d)(4)(E).
Ath’s petition challenges the BOP’s decision to deem him ineligible for FSA
time credits based on a final order of removal. (Doc. 1). He argues his removal order
is not final because he is challenging it on appeal. (Id.) Respondent argues the
removal order is final because the Board of Immigration Appeals (“BIA”) has
upheld the order. (Doc. 6).
Respondent is correct. An order of removal “become[s] final upon the earlier
of”:
(i) a determination by the Board of Immigration Appeals affirming such
order; or
(ii) the expiration of the period in which the alien is permitted to seek
review of such order by the Board of Immigration Appeals.
8 U.S.C. § 1101(a)(47)(B); accord Riley v. Bondi, 606 U.S. __, 145 S. Ct. 2190, 2198
(2025). Here, the BIA has affirmed Ath’s order of removal from the United States.
(See Doc. 6-5). Thus, he is ineligible to have FSA credits applied to his sentence
because he is subject to a “final order of removal under any provision of the
immigration laws.” 18 U.S.C. § 3632(d)(4)(E). His petition will accordingly be denied.
III. Conclusion
The petition for writ of habeas corpus is denied. An appropriate order shall
issue.
/S/ KELI M. NEARY
Keli M. Neary
United States District Judge
Middle District of Pennsylvania
Dated: September 22, 2025