Belin Gonzalez-Garcia, Petitioner v. FCI Berlin, Warden, Defendant
This text of 2023 DNH 040 (Belin Gonzalez-Garcia, Petitioner v. FCI Berlin, Warden, Defendant) is published on Counsel Stack Legal Research, covering District Court, D. New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Belin Gonzalez-Garcia, Petitioner
v. Case No. 23-cv-0091-SM Opinion No. 2023 DNH 040
FCI Berlin, Warden, Defendant
O R D E R
Petitioner, Belin Gonzalez-Garcia, is an inmate at the
Federal Correctional Institution in Berlin, New Hampshire. He
brings this § 2241 petition challenging the Bureau of Prisons’
determination that he is ineligible for application of “time
credits” under the First Step Act (“FSA”) because he is the
subject of a final order of removal. According to petitioner,
he is merely subject to a detainer – not a final order of
removal. Consequently, he believes he remains eligible to apply
FSA time credits to his current sentence.
The government moves for summary judgment asserting that,
as a matter of law, petitioner is not entitled to the relief he
seeks. Petitioner objects. For the reasons discussed, the
government’s motion is granted. Background
Petitioner is a citizen of Honduras who has repeatedly
entered the United States unlawfully. On December 15, 2010, he
was ordered removed from the United States. See Order of
Removal (document no. 7-6) at 1. He did not appeal that ruling
and, on January 14, 2011, it became final. Approximately six
years later, he unlawfully reentered the country and was
apprehended. He was charged with illegal reentry after
deportation, having been previously convicted of a felony, in
violation of 8 U.S.C. §§ 1326(a) and 1326(b)(1). In October of
2016, petitioner pled guilty to that charge and was sentenced to
serve a 30-month term of imprisonment. See Judgment in a
Criminal Case, Case no. 1:16CR00898-001 (document no. 7-3). He
was deported after serving that criminal sentence.
On or around August 25, 2020, petitioner (again) reentered
the country unlawfully. He was indicted and charged with
illegally reentering the country following his deportation, in
violation of 8 U.S.C. §§ 1326(a) and 1326(b). He subsequently
pled guilty to the sole count in the indictment and is currently
serving a 37-month sentence. See United States v. Gonzalez-
Garcia, No. 7:20CR01429, Judgment in a Criminal Case (Jan. 12,
2021). See also Sentencing Monitoring Computation Data
2 (document no. 4-3) at 2. His projected release date is May 22,
2023. Id.
On August 26, 2020, the Department of Homeland Security
notified petitioner of its decision to reinstate the prior order
of removal entered against him – that is, the order dated
December 15, 2010. See Notice of Intent/Decision to Reinstate
Prior Order (document no. 7-6) at 2. Then, on April 15, 2022,
U.S. Immigration and Customs Enforcement (“ICE”) lodged a
detainer against petitioner based upon that final order of
removal. See Immigration Detainer (document no. 7-4). See also
Sentence Monitoring Computation Data (document no. 4-3) at 3.
ICE has confirmed that there is a final order of removal against
petitioner and that it intends to take custody of him at the
completion of his federal sentence. See Affidavit of Maury
Yeakel, Supervisory Correctional Systems Supervisor at FCI
Berlin (document no. 7-2) at para. 9.
According to BOP records, petitioner is ineligible for FSA
time credits. See Sentence Monitoring Computation Data, at 1
(“FSA Eligibility Status is: Ineligible”). Nevertheless, he
claims to have earned a substantial number of FSA time credits
and says they are not properly being credited toward his early
release. See Petition (document no. 1) at para. 7. Based upon
3 his calculations, petitioner asserts that the BOP should have
released him from custody more than a year ago, on January 19,
2022.
Discussion
Petitioner is not entitled to the relief he seeks for at
least two reasons. First, he admits that he failed to fully and
properly exhaust available prison administrative remedies. See
Petition at para. 10 (“Petitioner has not exhausted
administrative remedies.”). See generally 42 U.S.C. § 1997e(a).
Typically, claims that have not been fully and properly
exhausted are subject to dismissal. Here, however, petitioner
asserts that exhausting available administrative remedies would
be “futile” because the BOP is “maliciously misinterpreting the
clear text or the relevant statutes.” He also says that
pursuing administrative remedies at this late date would “waste
a significant amount of the petitioner’s time before his
projected release date.” Petition at para. 10. It is unlikely
that petitioner’s argument is correct, but the court need not
resolve that issue because it is plain that his petition fails
on the merits.
Under the First Step Act, eligible federal inmates may earn
FSA time credits for the successful completion of “evidence-
4 based recidivism reduction programming or productive
activities.” 18 U.S.C. § 3632(d)(4)(A). Time credits earned
under that program “shall be applied toward time in prerelease
custody or supervised release.” Id. at § 3632(d)(4)(C). Based
upon their underlying crimes of conviction, however, certain
inmates are not eligible to receive FSA time credits. See 18
U.S.C. § 3632(d)(4)(D). Other inmates are ineligible to apply
FSA time credits toward prerelease custody or supervised
release. In this case, the relevant statutory provision states
that, “a prisoner is ineligible to apply time credits . . . if
the prisoner 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) (emphasis supplied). See also 28 C.F.R. §
523.44(a)(2) (“For any inmate eligible to earn FSA Time Credits
under this subpart who is subject to a final order of removal
. . . the Bureau may not apply FSA Time Credits toward
prerelease custody or early transfer to supervised release.”).
But, says petitioner, that section of the statute does not
apply to him because he is merely subject to an ICE detainer –
not a final order of removal. In short, he claims the final
order of removal entered against him on December 15, 2010
applies to an earlier crime of conviction, not the one for which
he is currently incarcerated. Accordingly, he argues the final
5 order of removal “has no legal immigration effect on
Petitioner’s current case.” Objection to Summary Judgment
(document no. 6) at para. 4. He is mistaken.
As noted above, the prior order of removal against
petitioner has been reinstated. See Notice of Intent/Decision
to Reinstate Prior Order (document no. 7-6). See also 8
U.S.C.A. § 1231(a)(5) (“If the Attorney General finds that an
alien has reentered the United States illegally after having
been removed or having departed voluntarily, under an order of
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2023 DNH 040, Counsel Stack Legal Research, https://law.counselstack.com/opinion/belin-gonzalez-garcia-petitioner-v-fci-berlin-warden-defendant-nhd-2023.