Villavicencio v. Unknown Party

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Junior Arcenta Gabriel Villavicencio,
Petitioner,
v.
Unknown Party,
Respondent.
No. CV-25-00436-TUC-JCH (JEM)
REPORT AND RECOMMENDATION
Before the Court is Petitioner Junior Arcenta Gabriel Villavicencio’s (“Petitioner”)
“Motion for Injunction Title 28 U.S.C. § 2241” which the district court construed as a
Petition Under 28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in Federal Custody
(“Petition”). (Doc. 1, 5.) Respondent filed his Return and Answer to Petition For a Writ of
Habeas Corpus Under 28 U.S.C. § 2241 (“Answer”). (Doc. 12.) Petitioner did not file a
reply and the time for filing a reply has elapsed. This matter is on referral to the undersigned
for Report and recommendation. (Doc. 5.) As explained below, the undersigned
recommends the Petition be dismissed.
…
…
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BACKGROUND1
Petitioner is serving a 120-month term of imprisonment in the custody of the Bureau
of Prisons (“Bureau”) for conspiracy to possess with intent to distribute five or more
kilograms of cocaine while on board a vessel subject to the jurisdiction of the United States.
(Doc. 12-1 at p. 7, ¶ 18.) His projected release date is June 30, 2026. Id. On January 24,
2026, the Bureau reviewed Petitioner’s eligibility to have his earned time credit under the
First Step Act of 2018 (“FSA”) applied.2 Id. at p. 7, ¶ 19. Petitioner was determined
ineligible to have his FSA earned time credit applied because an immigration detainer with
a final deportation order was issued against him. Id. at p. 7, ¶ 20. Specifically, on August
21, 2018, the United States Department of Homeland Security found Petitioner
“inadmissible . . . and ordered [him] removed from the United States.” Id.
The Petition raises one ground for relief. (Doc. 1.) The Petition alleges Respondent
is wrongfully refusing to apply Petitioner’s earned FSA time credit. Id. Petitioner argues
he is entitled to the application of his FSA time credit because there is no “Final Order of
Deportation” against him. Id. Petitioner requests that the district court “ORDER an
Execution of Removal of any alleged ‘Final Order of Deportation’ . . . AND restore ALL
FSA ETC’s to [P]etitioner.” Id.
Respondent seeks dismissal of the Petition on several grounds. (Doc. 12 at pp. 4-
12.) Respondent argues that the district court lacks jurisdiction over the Petition, (Id. at pp.
1 Factual references are taken from Respondent’s Answer unless otherwise indicated.
2 FSA time credits are variously referred to as time credit, Federal Time Credit(s), Earned
Time Credit(s), ETC(s), and FTC(s).
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6-7); Petitioner failed to exhaust his administrative remedies (Id. at pp. 4-6); Petitioner
lacks a liberty interest in the application of his FSA time credit (Id. at pp. 7-9); Petitioner
cannot challenge his place of confinement through the Petition (Id. at pp. 9-10); Petitioner’s
final removal order precludes the application of FSA time credit (Id. at pp. 10-12); and
Petitioner’s final removal order cannot be challenged through the Petition (Id. at p. 13).
As set forth below, this Court finds that Petitioner failed to exhaust his
administrative remedies and that his failure should be excused. This Court also finds that a
final removal order issued against Petitioner precludes the application of his earned FSA
time credit. Thus, this Court recommends that the district court dismiss the Petition.3
LEGAL STANDARDS
FSA Time Credit
Enacted into law in December 2018, the FSA addresses the reentry of incarcerated
individuals into society. Thigpen v. Heisner, CV 23-01359-PHX-ROS (CDB), 2024 WL
1705256, at *2 (D. Ariz. Mar. 4, 2024), report and recommendation adopted, No. CV-23-
01359-PHX-ROS, 2024 WL 1702275 (D. Ariz. Apr. 19, 2024). As part of the FSA,
Congress directed the Bureau to implement reentry initiatives, including programming and
programming incentives, good-time credit, and compassionate release opportunities. Id.
The FSA provision on time credit is as follows:
(4) Time credits.--
(A) In general.--A prisoner, except for an ineligible prisoner under
subparagraph (D), who successfully completes evidence-based recidivism
reduction programming or productive activities, shall earn time credits as
3 Given the dispositive nature of this Court’s finding it is not necessary to address
Respondent’s other arguments in support of dismissal.
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follows:
(i) A prisoner shall earn 10 days of time credits for every 30 days of
successful participation in evidence-based recidivism reduction
programming or productive activities.
(ii) A prisoner determined by the Bureau of Prisons to be at a minimum or
low risk for recidivating, who, over 2 consecutive assessments, has not
increased their risk of recidivism, shall earn an additional 5 days of time
credits for every 30 days of successful participation in evidence-based
recidivism reduction programming or productive activities.
Catchings v. Dulgov, No. CV-22-00388-TUC-JAS (DTF), 2023 WL 11832521, at *2 (D.
Ariz. Mar. 1, 2023), report and recommendation adopted, No. CV 22-388-TUC-JAS, 2025
WL 2476029 (D. Ariz. Aug. 28, 2025) (quoting 18 U.S.C. § 3632(d)(4)).
The FSA provides that “deportable prisoners [are] ineligible to apply time credits.”
18 U.S.C. § 3632(d)(4)(E)(i). The FSA states, “[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 (as such term is defined in section 101(a)(17) of the Immigration and
Nationality Act (8 U.S.C. [§] 1101(a)(17)).” See Id. Federal regulations also provide that
“[s]ubject to a final order of removal under immigration laws … the Bureau may not apply
FSA Time Credits toward prerelease custody or early transfer to supervised release.” 28
C.F.R. § 523.44(a)(2).
Final Removal Order
An I-860 form is considered a final order of removal after an immigration supervisor
reviews and approves the expedited removal order. See 8 C.F.R. § 235.3(b)(7); United
States v. Ornelas-Dominguez, No. 19-50333, 2021 WL 3039420, at *1 (9th Cir. July 19,
2021) (noting validity of Form I-860 as final order of removal). “[I]n the deportation
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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, 579, 140 S.Ct. 1683, 207
L.Ed.2d 111 (2020).
ANALYSIS
Exhaustion of Administrative Remedies
The Bureau operates an Administrative Remedy Program designed to allow an
inmate to seek formal review of an issue relating to any aspect of his confinement,
including earned time credit. 28 C.F.R. §§ 542.10, 542.14(d)(2); see also Doc. 12-1 at pp.
3-6, ¶¶ 3-12 (Declaration of Lorri Mitchell summarizing the Bureau’s Administrative
Remedy Program). The Bureau’s Administrative Remedy Program consists of four levels
of review beginning with an attempt at informal resolution (BP-8), a request to the Warden
(BP-9), and then appeals to the Regional Director (BP-10), and the Office of General
Counsel (BP-11). (Doc. 12-1 at p. 3, ¶ 4.)
As a prudential matter, courts require a habeas petitioner to exhaust available
administrative remedies before filing a petition for relief under 28 U.S.C. § 2241. See e.g.,
Reno v. Koray, 515 U.S. 50, 54–55, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995); Tucker v.
Carlson, 925 F.2d 330, 332 (9th Cir. 1991); Martinez v. Roberts, 804 F.2d 570, 571 (9th
Cir. 1986); Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). The United States Court
of Appeals for the Ninth Circuit has recognized that:
[T]he requirement of exhaustion of remedies [is to] aid judicial review by
allowing the appropriate development of a factual record in an expert forum;
conserve the court's time because of the possibility that the relief applied for
may be granted at the administrative level; and allow the administrative
agency an opportunity to correct errors occurring in the course of
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administrative proceedings.
Ruviwat, 701 F.2d at 845.
Respondent argues that Petitioner “has never filed a single administrative remedy
in this case or any other matter.” (Doc. 12 at p. 5.) Respondent acknowledges, however,
that Petitioner made two attempts at information resolution (BP-8) of the claim alleged in
the Petition. (Doc. 12 at p. 5; Doc. 1 at pp. 19- 21.) Respondent seeks dismissal of the
Petition because Petitioner failed to submit a request to the Warden (BP-9), an appeal to
the Regional Director (BP-10), and an appeal to the Office of General Counsel (BP-11).
An inmate’s failure to exhaust administrative remedies has been excused for futility
where, inter alia, resolution of a claim can be accomplished based solely on statutory
interpretation. See e.g., Martinez v. Gutierrez, No. CV 22-00505-TUC-RM (AMM), 2023
WL 6466490, at *3 (D. Ariz. July 14, 2023), report and recommendation adopted, No.
CV-22-00505-TUC-RM, 2023 WL 6464850 (D. Ariz. Oct. 4, 2023) (finding
administrative exhaustion futile where the petitioner raised a facial challenge to the
Bureau's implementation of the statutes and regulations governing application of an
inmate's FSA time credit and it appeared “very likely that the outcome of any further
appeals to the Regional Director or the Office of General Counsel would have been
consistent with the adverse decisions.”).
Based upon the evidence presented by the Bureau, this Court finds that it is unlikely
that Petitioner's claim will be resolved at the administrative level. As more fully laid out
below, Petitioner is ineligible to have any of his earned FSA time credit applied because
of his final removal order. Therefore, it is unlikely that Petitioner’s eligibility status will
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change during the Bureau’s administrative process. Thus, this Court finds that
administrative exhaustion appears futile. See Wright v. United States, No. 19-05254, 2019
WL 2746630, at *7 (W.D. Wash. June 5, 2019) (holding that “to the extent the [Bureau]
[h]as predetermined the issue[] and made it clear that any request [the petitioner] makes to
the [Bureau] for calculation of good time credits under the amended statute will be denied,
there is no available administrative remedy. Under these circumstances, it would be futile
for [the petitioner] to attempt to exhaust his administrative remedies.”); Aguilar v. United
States, No. 15-00487, 2015 WL 5719166, at *3 (D. Minn. Sept. 29, 2015) (concluding that
exhaustion of administrative remedies is futile where “[t]he facts of this case are
undisputed, and the issue is one of statutory interpretation, which is unaffected by any
technical matters uniquely within the B[ureau]'s area of expertise or by the facts of the
case” and “[t]he institutional interests protected by the exhaustion requirement carry little
or no weight”); Martinez v. Gutierrez, No. CV 22-00505-TUC-RM (AMM), 2023 WL
6466490, at *3 (D. Ariz. July 14, 2023), report and recommendation adopted, No. CV-22-
00505-TUC-RM, 2023 WL 6464850 (D. Ariz. Oct. 4, 2023) (finding administrative
exhaustion futile where the petitioner raised a facial challenge to the Bureau's
implementation of the statutes and regulations governing application of an inmate's FSA
time credit and it appeared “very likely that the outcome of any further appeals to the
Regional Director or the Office of General Counsel would have been consistent with the
adverse decisions.”); Johnston v. Colbert, No. CV-22-0260-TUC-SHR (EJM), 2023 WL
9510557, at *3 (D. Ariz. Aug. 15, 2023), report and recommendation adopted, No. CV-
22-00260-TUC-SHR, 2024 WL 418123 (D. Ariz. Feb. 5, 2024) (excusing inmate’s failure
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to exhaust in § 2241 action where the petitioner was seeking relief with respect to the
application of FSA time credit where “the factual record is adequately developed, and
nothing in the record suggests that further administrative review would aid judicial
review.”)
This Court is sensitive to Respondent’s assertion that if the district court were to
excuse the administrative exhaustion requirement such excuse could encourage future
deliberate bypass of the Bureau’s administrative remedy scheme. (Doc. 12 at pp. 5-6.) It
appears true, as Respondent points out, that Petitioner failed to engage in all required levels
of administrative review and excusing his failure may entice future bypass of the Bureau’s
administrative review program. However, because Petitioner’s ineligibility to have his
earned FSA time credit applied is unlikely to change at the administrative level as a result
of Petitioner’s final removal order, this Court determines that Petitioner’s exhaustion of his
administrative remedies would be futile. Accordingly, this Court finds that Petitioner’s
failure to exhaust his administrative remedies should be excused considering the particular
facts of this case.
Petitioner’s Final Removal Order Precludes Application of FSA Time Credit
Petitioner has a final removal order issued by the Department of Homeland Security
on a form I-860 dated August 21, 2018. (Doc. 1 at pp. 26-27; Doc. 12-1 at p. 7, ¶ 20; Doc.
12-7 at pp. 2-3.) The form I-860 was signed by an immigration official and a supervisor
and was then served upon Petitioner on August 28, 2018. (Doc. 12-1 at p. 7, ¶ 20.) The I-
860 form is considered a final removal order after an immigration supervisor reviews and
approves the expedited removal order. 8 C.F.R. § 235.3(b)(7); United States v. Ornelas-
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Dominguez, No. 19-50333, 2021 WL 3039420, at *1 (9th Cir. July 19, 2021) (noting
validity of Form I-860 as final order of removal). This Court finds that a final removal
order as contemplated by the FSA was entered against Petitioner.
As laid out above, the plain language of 18 U.S.C. § 3632(d)(4)(E)(i) precludes the
Bureau’s application of Petitioner’s FSA time credit because Petitioner is subject to a final
removal order. While Petitioner may be eligible to earn FSA time credit, Congress has
determined that he is not eligible to have the Bureau apply earned FSA time credit.
Petitioner contends that “the Form I-851A MUST be executed in order for a ‘True’
Final Order of Deportation to be in existence” and points to the Notice and Order of
Expedited Removal dated August 21, 2028 that he attached to his Petition. (Doc. 1 at p. 1.)
The redacted Notice and Order of Expedited Removal that Petitioner points to is, in fact, a
copy of Petitioner’s executed final removal order that was provided to him in response to
his Freedom of Information Act (“FOIA”) request. Petitioner’s final removal order was
provided to him with redactions pursuant to FOIA exemptions at 5 U.S.C. §§ 552(b)(6),
(b)(&)(C). See Id. at pp. 24-27.
“[I]n the deportation context, a ‘final order of removal’ is a final order ‘concluding
that the alien is deportable or ordering deportation.’” Nasrallah, 590 U.S. at 579. The I-
860 form signed and served on Petitioner reflects that an immigration officer found him to
be inadmissible under INA § 212(a)(7)(i)(I) and ordered him removed from the United
States. (Doc. 12-7 at pp. 2-3.) This Court finds that Petitioner is subject to a final removal
order and is statutorily ineligible to have his earned FSA time credit applied. See, e.g.,
Camacho-Castillo v. Dulgov, No. CV-24-00064-TUC-AMM (JR), 2024 WL 4627890, at
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*4 (D. Ariz. Oct. 15, 2024), report and recommendation adopted, No. CV-24-00064-TUC-
AMM, 2024 WL 4626562 (D. Ariz. Oct. 30, 2024) (finding expedited removal order issued
by Department of Homeland Security constituted final order of removal rendering
petitioner ineligible to have FSA time credit applied); Reyes v. Doerer, No. 2:23-CV-
10051-SSS-JC, 2024 WL 3851634, at *2 (C.D. Cal. June 5, 2024) (recognizing that
“[i]nmates who are subject to final removal orders, such as Petitioner, are categorically
ineligible to apply FSA time credits to their sentences in any respect.”), report and
recommendation adopted, No. 2:23-CV-10051-SSS-JC, 2024 WL 3859988 (C.D. Cal.
Aug. 9, 2024); Ceron v. Engleman, No. CV 23-3388-SSS (AGR), 2024 WL 967858, at *2
(C.D. Cal. Jan. 24, 2024), report and recommendation adopted, No. CV 23-3388-SSS
(AGR), 2024 WL 968850 (C.D. Cal. Mar. 6, 2024) (finding petitioner was subject to a final
order of removal and not eligible for application of FSA time credits because he had a
Notice and Order of Expedited Removal); Rodriguez v. Birkholz, No. 2:24-CV-01579-
FMO-PD, 2025 WL 714965, at *2 (C.D. Cal. Jan. 28, 2025) (holding that “[p]etitioner is
statutorily ineligible to apply FSA time credits” because he has a “final administrative order
of removal.”); Polanco v. Jenkins, No. CV 23-01652-FWS (RAO), 2023 WL 4409120, at
*1 (C.D. Cal. May 22, 2023) (recognizing that “[t]he statute’s plain language excludes
prisoners with a final order of removal from eligibility for FSA relief.”), report and
recommendation adopted, 2023 WL 4406305 (C.D. Cal. July 6, 2023); Felix-Felix v.
Engleman, No. CV 23-1722 CJC (PVC), 2023 WL 3903817, at *3 (C.D. Cal. May 11,
2023) (holding that “[b]ecause [p]etitioner is subject to a final order of removal …
[p]etitioner is statutorily ineligible for earned time credits under the [FSA].”), report and
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recommendation adopted, No. CV 23-1722 CJC (PVC), 2023 WL 3901778 (C.D. Cal. June
7, 2023); Riesqo Penate v. Garland, No. 1:22-cv-460, 2023 WL 142300, at *3 (W.D. Mich.
Jan. 10, 2023) (denying habeas relief in part because petitioner was subject to a final order
of removal and thus ineligible to apply time credits “regardless of whether ICE maintains
a detainer against him.”).
Petitioner relies on two cases, neither of which this Court finds persuasive. (Doc. 1
at p. 1.) Komando v. Luna, No. 22-CV-425-SE, 2023 WL 310580, at *6 (D.N.H. Jan. 13,
2023), report and recommendation approved sub nom. Komando v. FCI Berlin, Warden,
2023 WL 1782034 (D.N.H. Feb. 6, 2023), recognized the rule that prisoners with a final
order of removal, not simply an immigration detainer letter, are ineligible for FSA time
credit. Lerma-Jaras v. Birkholz, No. 2:23-CV-09427-ODW-JDE, 2023 WL 11849825, at
*3 (C.D. Cal. Dec. 18, 2023), reasoned that a final order of removal must be signed before
a prisoner’s release date to make him ineligible for FSA time credit. Here, as laid out above,
Petitioner is subject to a signed final removal order. (Doc. 1 at pp. 26-27; Doc. 12-1 at p.
7, ¶ 20; Doc. 12-7 at pp. 2-3.)
RECOMMENDATION
For the foregoing reasons, the undersigned United States Magistrate Judge
RECOMMENDS that the district court enter an order DENYING the Petition (Doc. 1).
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file
written objections within fourteen days of being served with a copy of the Report and
Recommendation. A party may respond to the other party=s objections within fourteen
days. No reply shall be filed unless leave is granted by the district court. If objections are
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not timely filed, they may be deemed waived. Failure to file timely objections to any factual
or legal determination of the Magistrate Judge may be considered a waiver of a party's right
to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003) (en banc). If objections are filed, the parties should use the following
case number: CV-25-cv-436-JCH.
Dated this 1st day of June, 2026.
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