Luis Fernando Lora Fontalvo v. Director Federal Bureau of Prisons

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 26-1776
__________
LUIS FERNANDO LORA FONTALVO,
Appellant
v.
DIRECTOR FEDERAL BUREAU OF PRISONS; WARDEN LORETTO FCI
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 3:25-cv-00045)
District Judge: Honorable Nora B. Fischer
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Submitted Pursuant to Third Circuit LAR 34.1(a)
July 27, 2026
Before: KRAUSE, RESTREPO, and PORTER, Circuit Judges
(Opinion filed: July 28, 2026)
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OPINION*
___________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Pro se Appellant Luis Fernando Lora Fontalvo appeals the District Court’s denial
of his petition filed under 28 U.S.C. § 2241. We will affirm the District Court’s
judgment.
Fontalvo is a federal prisoner serving a sentence of 108 months’ imprisonment,
followed by three years of supervised release, for conspiracy to distribute a controlled
substance knowing that it would be imported into the United States, in violation of 21
U.S.C. § 963. While Fontalvo was serving his sentence, an immigration officer in an
expedited removal proceeding determined that Fontalvo was an immigrant without valid
documentation and therefore inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I). The
immigration officer ordered his expedited removal pursuant to 8 U.S.C. § 1225(b)(1).
Fontalvo filed a § 2241 petition in the United States District Court for the Western
District of Pennsylvania, arguing that the Federal Bureau of Prisons erred by refusing to
apply earned time credits to his sentence. The District Court, adopting the Magistrate
Judge’s Report and Recommendation, sua sponte denied the petition, explaining that the
First Step Act bars application of time credit for a prisoner, like Fontalvo, who is subject
to a final order of removal. See 18 U.S.C. § 3632(d)(4)(E)(i). Fontalvo appealed.
Because Fontalvo is a federal prisoner appealing the denial of a § 2241 petition, he
does not need a certificate of appealability to proceed. See Reese v. Warden Phila. FDC,
904 F.3d 244, 246 (3d Cir. 2018). We have jurisdiction under 28 U.S.C. § 1291, and our
review is plenary. See Cordaro v. United States, 933 F.3d 232, 241 (3d Cir. 2019).
A prisoner cannot apply earned time credit toward time in prelease custody or
supervised release if he is “the subject of a final order of removal under any provision of

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the immigration laws.” 18 U.S.C. § 3632(d)(4)(E)(i). “In the deportation context, a final
‘order of removal’ is a final order ‘concluding that the alien is deportable or ordering
deportation.’” Nasrallah v. Barr, 590 U.S. 573, 581 (2020) (quoting 8 U.S.C.
§ 1101(a)(47)(A)). Here, Fontalvo was deemed inadmissible and ordered removed from
the United States. Fontalvo does not contend that the immigration proceedings are
ongoing; the order became final when the immigration officer’s supervisor signed it. See
8 U.S.C. § 1225(b)(1)(C) (providing that expedited removal orders are generally not
subject to administrative appeal); 8 C.F.R. § 235.3(b)(2)(ii) (same); see also 8 C.F.R.
§ 235.3(b)(7) (providing that an expedited removal order “must be reviewed and
approved by the appropriate supervisor before the order is considered final”).1
Fontalvo argues that the expedited removal order is not final because he did not
appear before an Immigration Judge. But the statutory provision governing expedited
removal proceedings expressly provides that an immigration officer, not an immigration
judge, shall issue those orders of removal “without further hearing or review.” 8 U.S.C.
§ 1225(b)(1)(A)(i); Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 109 (2020).2
1 Fontalvo has not stated, either in the District Court or this Court, that he indicated “an
intention to apply for asylum . . . or a fear of persecution.” 8 U.S.C. § 1225(b)(1)(A)(i);
see also Castro v. U.S. Dep’t of Homeland Sec., 835 F.3d 422, 425–26 (3d Cir. 2016)
(explaining the expedited removal procedures for when an immigrant “indicates to the
immigration officer that she fears persecution or torture if returned to her country”).
2 If an immigrant indicates that she has a credible fear of persecution or torture, she has
an opportunity to request an Immigration Judge’s de novo review of the immigration
officer’s credible fear determination. See Castro, 835 F.3d at 426. But there is no
suggestion in the record that Fontalvo sought a determination that he had a credible fear
of persecution or torture upon return to his country.

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Because Fontalvo was subject to a “final order of removal,” he was ineligible to apply
earned time credits to his sentence. 18 U.S.C. § 3632(d)(4)(E)(i).3
Even so, Fontalvo argues, the failure to apply his already-earned credits was in
violation of due process. But Fontalvo had no constitutionally protected interest in the
application of his good time credits. See Cheng v. United States, 132 F.4th 655, 659 (2d
Cir. 2025) (per curiam); White v. Warden of Fed. Corr. Inst.- Cumberland, 164 F.4th 326,
334 (4th Cir. 2026).4
Accordingly, we will affirm the District Court’s judgment.
3 Fontalvo argues for the first time on appeal that no final order of removal exists because
“[s]ervice never took place,” and “instead a copy [of the immigration detainer notice] was
sent through internal prison mail.” Even assuming that this issue is subject to judicial
review, see Castro, 835 F.3d at 431–32, we decline to consider this argument because
Fontalvo failed to raise it in the District Court, see Jenkins v. Superintendent of Laurel
Highlands, 705 F.3d 80, 88 n.12 (3d Cir. 2013), and he did not adequately explain on
appeal why receipt of notice “through internal prison mail” was not proper service, see
Barna v. Bd. of Sch. Dirs., 877 F.3d 136, 145 (3d Cir. 2017).
4 Fontalvo claims that the First Step Act established his protected entitlement to good
time credits, “[b]ut the [First Step Act], taken as a whole, makes clear that noncitizens
with final orders of removal are not eligible for time credits.” Cheng, 132 F.4th at 659.

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