Gonzalez v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Andres Marrero Gonzalez
v. Civil No. 23-cv-436-SE-AJ
FCI Berlin, Warden
REPORT AND RECOMMENDATION
Andres Marrero Gonzalez (“Gonzalez”), a federal prisoner
proceeding pro se in this case, filed this petition pursuant to
28 U.S.C. § 2241 when he was at FCI Berlin,1 seeking
reinstatement of credits under the First Step Act (“FSA”) and
immediate transfer to a Residential Reentry Center. The Warden
has moved to dismiss, or in the alternative, for summary
judgment (Doc. No. 3), because Gonzalez is the subject of a
final order of removal, and because the petitioner failed to
exhaust Federal Bureau of Prisons (“BOP”) remedies before he
filed this petition. The petitioner objects (Doc. Nos. 6, 9).
For the following reasons, the district judge should grant
summary judgment in the Warden’s favor.2
1 Gonzalez is presently held at FCI Oakdale II in Louisiana.
BOP Inmate Locator, https://www.bop.gov/inmateloc/ (last visited
Aug. 7, 2024).
2 The Warden expressly seeks dismissal under Fed. R. Civ. P.
12(b)(6), or, in the alternative, summary judgment under Fed. R.
Civ. P. 56 (Doc. No. 3). The court applies the Rule 56 standard
in considering that motion.
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Legal Standard
Habeas corpus review pursuant to 28 U.S.C. § 2241 is
appropriate if a person is “in custody in violation of the
Constitution or laws or treaties of the United States.” 28
U.S.C. § 2241(c)(3). This court may adjudicate claims alleging
that the BOP has unlawfully failed to apply a prisoner’s
sentence credits or that the BOP has unlawfully delayed a
person’s transfer to a community-based custodial setting. See
Francis v. Maloney, 798 F.3d 33, 36 (1st Cir. 2015). Petitioner
bears the burden of proving that his continuing detention
violates his federal rights. See Espinoza v. Sabol, 558 F.3d
83, 89 (1st Cir. 2009).
Summary judgment is appropriate in habeas proceedings when
“‘there is no genuine issue as to any material fact and . . .
the moving party is entitled to a judgment as a matter of
law.’” Bader v. Warden, No. 02-cv-508-JD, 2003 DNH 90, 2003 WL
21228520, at *3, 2003 U.S. Dist. LEXIS 8955, at *8-9 (D.N.H. May
28, 2003) (citations omitted), aff’d, 488 F.3d 483 (1st Cir.
2007); see also Gattineri v. Wynn MA, LLC, 93 F.4th 505, 509
(1st Cir. 2024) (citing Fed. R. Civ. P. 56(a)). A genuine
factual dispute exists if “the evidence is such that a
reasonable jury could resolve the point in the favor of the non-
moving party,” and a material fact is one “that has the
potential of affecting the outcome of the case.” Hamdallah v.
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CPC Carolina PR, LLC, 91 F.4th 1, 16 (1st Cir. 2024) (internal
quotation marks omitted). In making that determination, the
court draws all reasonable inferences in favor of the nonmoving
party from properly supported facts in the record. Lech v. von
Goeler, 92 F.4th 56, 64 (1st Cir. 2024). The court must
determine whether the moving party has shown that he is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a).
Background
The following facts are undisputed, except as otherwise
noted. Gonzalez is a federal prisoner who was born in Cuba. He
is serving a 210-month sentence following a conviction for
violating 18 U.S.C. § 922(g) (possession of firearm by a
convicted felon). The BOP projects Gonzalez’s release date to
be a date in 2026.3
Gonzalez claims that he has earned more than two years of
FSA time credits. If those credits were applied to his
sentence, he claims, he should already be in prerelease custody.
3 The BOP Inmate Locator currently projects Gonzalez’s
release date to be April 30, 2026. See BOP Inmate Locator,
https://www.bop.gov/inmateloc/ (last visited Aug. 6, 2024). BOP
records filed as an exhibit to the Warden’s motion for summary
judgment, project that date to be March 20, 2026. See BOP
Sentence Monitoring Data (Doc. No. 3-3, at 1). The record does
not suggest any reason for that discrepancy, and this court
expresses no opinion in this case regarding which date is
correct, as that issue is not pertinent to the disposition of
this petition or the motion before this court.
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Exhibits attached to the Warden’s motion for summary
judgment show that Gonzalez is the subject of a final order of
removal issued by an immigration judge on March 27, 2000. The
March 2000 removal order states that Gonzalez is ordered removed
from the United States to Cuba. Doc. No. 3-5. There is no
evidence before this court showing that the removal order has
ever been reversed on appealed, rescinded, revoked, or otherwise
officially invalidated.
Gonzalez filed this § 2241 petition after receiving notice
that the BOP considers him to be ineligible to have FSA time
credits applied to his sentence because of his final order of
removal. Gonzalez claims that he remains eligible because he
has been admitted to the United States, and Cuba will not take
him back.
The Warden filed a reply (Doc. No. 7), which asserts that
with the normalization of Cuba-United States relations, Cuba has
begun to accept Cuban nationals for repatriation. Gonzalez
filed a surreply, in which he disputes the Warden’s conclusion,
contending that he remains “in no way deportable.” Doc. No. 9.
Discussion
I. FSA
The FSA permits eligible prisoners to earn time credits to
shorten their terms of imprisonment or increase the time they
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spend in prerelease custody (in a halfway house or home
confinement), if they successfully participate in certain
programs aimed at reducing recidivism or otherwise engage in
productive activities while incarcerated. See 18 U.S.C.
§ 3632(d)(4)(A), (C); see also 18 U.S.C. § 3624(g)(1)-(2).
But not all prisoners can apply their sentence credits.
Pertinent here is the FSA’s exception for non-citizen prisoners
with final orders of removal. The FSA provides, in pertinent
part, as follows:
A prisoner is ineligible to apply time credits under
[the FSA] 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).
The Warden moves for summary judgment in this case, arguing
that under § 3632(d)(4)(E)(i), Gonzalez’s FSA time credits
cannot be applied because he is the subject of a final order of
removal.4 Without disputing the underlying fact that an
immigration judge, in March 2000, issued a final order of
removal with his name on it, Gonzalez argues that, because he is
4 The Warden further contends that Gonzalez failed to
exhaust his administrative remedies before filing his petition.
The court does not address that exhaustion argument because it
finds that the Warden is entitled to summary judgment on another
basis.
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a Cuban national who was admitted or paroled into the United
States, his final removal order is effectively void.5
Discussion
This case does not turn on the status of diplomatic
relations between Cuba and the United States, or on the ability
of ICE to execute Gonzalez’s removal order. The FSA, in
pertinent part, does not treat prisoners who are not U.S.
citizens differently from one another, depending on their
nationality, the status of any diplomatic relations, or their
prospects for adjustment of status, repatriation, or withholding
of removal. Gonzalez is the subject of a March 2000 final order
of removal, and nothing in the record suggests that his removal
order has been reopened, reconsidered, or cancelled, or that the
order of removal is otherwise no longer “final” under the
immigration laws of the United States.
The petitioner cites the Cuban Adjustment Act (“CAA”), Pub.
L. 89-732, 80 Stat. 1161 (1966); his status as a Cuban who has
been admitted or paroled into the United States; as well as BOP
Program Statement 8120.02, all of which he asserts show that his
5 This court expresses no opinion regarding whether Gonzalez
is likely to be deported and repatriated upon his release from
BOP custody, as that issue is not properly resolved upon the
record before this court and is not necessary for a ruling on
the motion for summary judgment or any claim in the § 2241
petition.
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removal order is essentially void. As to his arguments about
the CAA and his admission or parole into the United States, such
facts are not material for purposes of the FSA. See Giang Van
Doan v. FCI Berlin Warden, No. 23-cv-183-LM-AJ, 2024 WL 1095894,
at *4, 2024 U.S. Dist. LEXIS 45135, at *8 (D.N.H. Feb. 21, 2024)
(“Neither Petitioner’s prior release from ICE custody, nor any
determinations regarding his likelihood of removal, nor any
temporary grant of discretionary relief, have rendered the
underlying Removal Order nonfinal.”), R&R approved, 2024 WL
1093756, 2024 U.S. Dist. LEXIS 43855 (D.N.H. Mar. 13, 2024); see
also Jimenez v. Warden, FCI Fort Dix, No. CV 24-773 (KMW), 2024
WL 3568714, at *1, 2024 U.S. Dist. LEXIS 133553, at *3 (D.N.J.
July 26, 2024) (“That Petitioner was also granted immigration
relief . . . under the CAT [Convention Against Torture] does not
change the fact that he has received a final order of removal.”
(citing Nasrallah v. Barr, 590 U.S. 573, 582 (2020) (order
granting relief under CAT “does not disturb the final order of
removal” as person granted such relief still may be removed to
another country where he or she is not likely to be tortured)).
The BOP Program Statement Gonzalez cites in his objection
to the motion for summary judgment -- PS 8120.02 (issued in July
1999), as well as its more recent iteration, PS 8120.03 (issued
in February 2017) -- also provides no grounds for granting
relief on the § 2241 petition. Those Program Statements concern
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BOP’s policies and regulations regarding the Federal Prison
Industries (“FPI”) program,6 not prisoner eligibility for the
application of FSA time credits. The latter type of prisoner
eligibility is governed by the FSA, 18 U.S.C.
§ 3632(d)(4)(E)(i). And the plain language of that statute
makes all sentenced non-U.S. citizens ineligible for the
application of FSA time credits, without exception, if they are
“the subject of a final order of removal under any provision of
the immigration laws.” Id. There is no genuine dispute as to
the existence of such a final order of removal in Gonzalez’s
case, and judgment as a matter of law is thus warranted on his
§ 2241 petition.
Conclusion
For the foregoing reasons, the district judge should grant
the Warden’s motion for summary judgment (Doc. No. 3), and then
the clerk should enter judgment and close this case. Any
objections to this Report and Recommendation must be filed
within fourteen (14) days of receipt of this notice. The
objection period may be extended upon motion. Only those issues
6 Buried in those Program Statements is a statement of BOP
policy, allowing Cuban prisoners with final removal orders to be
assigned to FPI workplaces, because “[i]t has been determined
that Cubans . . . cannot be removed from the United States
. . . .” See, e.g., BOP PS 8120.03 (Feb. 23, 2017), at 24,
https://www.bop.gov/resources/policy_and_forms.jsp (last visited
Aug. 7, 2024).
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raised in the written objections “‘are subject to review in the
district court,’” and any issues “‘not preserved by such
objection are precluded on appeal.’” Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016) (citations omitted).
___________ ______________
Andrea K. Johnstone
United States Magistrate Judge
August 7, 2024
cc: Andres Marrero Gonzalez, pro se
Terry L. Ollila, Esq.
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