Becerra Quinones, Jose Luis v. Emmerich, E.

CourtDistrict Court, W.D. Wisconsin
DecidedJune 9, 2025
Docket3:25-cv-00025
StatusUnknown

This text of Becerra Quinones, Jose Luis v. Emmerich, E. (Becerra Quinones, Jose Luis v. Emmerich, E.) is published on Counsel Stack Legal Research, covering District Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Becerra Quinones, Jose Luis v. Emmerich, E., (W.D. Wis. 2025).

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN _____________________________________________________________________________________ JOSE LUIS BECERRA QUINONES, Petitioner, OPINION AND ORDER v. 25-cv-25-wmc 25-cv-403-wmc WARDEN E. EMMERICH, Respondent. _____________________________________________________________________________________ Petitioner Jose Luis Becerra Quinones is a prisoner incarcerated at the Federal Correctional Institution in Oxford, Wisconsin (“FCI-Oxford”). Representing himself, Quinones has filed two federal habeas corpus proceedings under 28 U.S.C. § 2241, which the court has consolidated pursuant to Federal Rule of Civil Procedure 42(a) because each petition involves common questions of law and fact. Petitioner contends that he is entitled to an earlier release because the Federal Bureau of Prisons (“BOP”) has incorrectly construed his immigration detainer as a final order of deportation that disqualifies him for time credits earned under the First Step Act (“FSA”). Petitioner contends further that denying him these time credits discriminates against him unfairly based on his nationality and violates the right to due process and equal protection. For the reasons explained below, the court will deny relief and dismiss both cases with prejudice.

OPINION

Petitioner, who is a citizen of Colombia, is currently serving a 96-month term of imprisonment, to be followed by a 2-year term of supervised release, as the result of a conviction for conspiracy to distribute and possess with intent to distribute 5 kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of the United States. See United States v. Becerra Quinones, Crim. No. 8:20-184 (M.D. Fla.). His projected release date is March 8, 2027. Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2241, to challenge the execution of

his sentence. Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998) (recognizing that a motion seeking relief concerning the execution of a sentence, but not the validity of a conviction, falls under § 2241). To obtain a writ, petitioner must show that he is in custody in violation of the Constitution or laws of the United States. 28 U.S.C. § 2241(c)(3). Petitioner argues that he would be entitled to an earlier release date if the BOP recalculated his sentence to include time credits earned under the First Step Act, 18 U.S.C. § 3632(d)(4)(A) (also known as FSA Time Credits or “FTCs”). The First Step Act affords eligible inmates the opportunity to earn these time credits, which apply toward time in

prerelease custody or early transfer to supervised release, through successful participation in “evidence-based recidivism reduction programs or productive activities[.]” 18 U.S.C. § 3632(d)(4)(C). However, even if an inmate is eligible to earn FTCs, BOP cannot apply them if the inmate “is the subject of a final order of removal under any provision of the immigration laws.” 18 U.S.C. § 3632(d)(4)(E)(i) (“A prisoner is ineligible to apply time credits under subparagraph C if the prisoner is the subject of a final order of removal under any provision of the immigration laws[.]”); see also 28 C.F.R. § 523.44(a)(2) (stating that the BOP “may not apply FSA Time Credits toward prerelease custody or early transfer to supervised release” for

prisoners subject to a final order of removal under immigration laws). Petitioner acknowledges that the Department of Homeland Security entered a Notice and Order of Expedited Removal on May 1, 2024, finding him inadmissible pursuant to 8 U.S.C. § 1225(b)(1). (No. 25-cv-25-wmc, Dkt. #1-4.) The removal order is signed by a deportation officer and a supervisor. (Id.) Therefore, even though petitioner has been receiving credit for institutional programming, he is not eligible to have those FTCs applied for an earlier release date.

While petitioner argues that he is not subject to a “final” order of deportation because he is seeking asylum, this court and other federal courts considering this specific issue have rejected arguments like petitioner’s and held that orders of expedited removal entered by an immigration officer under § 235(b)(1) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1225(b)(1), and approved by a supervisor, are considered final. See Yefferson v. Emmerich, dkt. #20, at 4, No. 24-cv-93-wmc (W.D. Wis. Nov. 22, 2024) (citing Ceron v. Engelman, No. 23-cv-3388, 2024 WL 967858, *2 (C.D. Cal. Jan. 24, 2024); Pineda v. Cruz, No. 23-cv-4939, 2024 WL 1526120, at *3 (D.N.J. April 9, 2024); Gomez-Cuzme v. Birkholz, No. 23-

cv-1753, 2023 WL 4423602, *3 (C.D. Cal. June 1, 2023); 8 C.F.R. § 235.3(b)(7)). The record in this case shows that an immigration officer determined that petitioner was inadmissible under INA § 212(a)(7)(i)(I), and a supervisor reviewed and approved the determination, making the order final. (No. 25-cv-25-wmc, Dkt. #1-4.) Any challenge to petitioner’s removal order is precluded by the REAL ID Act, which eliminates review under 28 U.S.C. § 2241; rather a petition for review with the court of appeals for the judicial circuit in which the immigration judge who completed the proceedings “shall be the sole and exclusive means for judicial review[.]” 8 U.S.C. §§ 1252(a)(5), 1252(b)(2). Therefore, unless and until petitioner prevails

in proceedings before the immigration courts or a court of appeals, his expedited order of removal remains valid. Hurtado v. Warden, FCI Oxford, No. 24-796-wmc, 2025 WL 472742, at *2 (W.D. Wis. Jan. 14, 2025). Further, to the extent that petitioner argues that he has been denied FTCs in violation of the right to due process and equal protection, he does not state a viable claim for relief. To show that due process protections apply, petitioner must first demonstrate that a protectable liberty interest exists. Bunn v. Conley, 309 F.3d 1002, 1010 (7th Cir. 2002) (citing Solomon v.

Elsea, 676 F.2d 282, 284 (7th Cir. 1982)). As noted above, petitioner is statutorily ineligible to have FTCs apply to his sentence, and courts have held that prisoners do not otherwise have a constitutionally protected liberty interest in these credits. See, e.g., Gant v. King, No. 23-cv- 1766, 2023 WL 6910771, at *3 (D. Minn. Oct. 19, 2023) (“prisoners do not have a protected liberty interest in the application of FSA time credits”) (citations omitted); Fontanez v.

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Becerra Quinones, Jose Luis v. Emmerich, E., Counsel Stack Legal Research, https://law.counselstack.com/opinion/becerra-quinones-jose-luis-v-emmerich-e-wiwd-2025.