Lobon Rivas v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Leonardo Lobon Rivas
v. 	Case No. 23-cv-111-SE-AJ
FCI Berlin, Warden
REPORT AND RECOMMENDATION
Leonardo Lobon Rivas, proceeding pro se and an inmate
formerly held at FCI Berlin,1 filed a petition pursuant to 28
U.S.C. § 2241, seeking reinstatement of credits under the First
Step Act (“FSA”). 	In his petition, Mr. Lobon Rivas asserts that
he has earned 365 time credits under the FSA, which the BOP
wrongly refuses to apply to his sentence.
The Warden moves for summary judgment (Doc. No. 11) on the
basis that Mr. Lobon Rivas is the subject of a final order of
removal. 	For the following reasons, the District Judge should
grant summary judgment in the Warden’s favor.2
1 Mr. Lobon Rivas is presently held at FTC Oklahoma City,
which is in the Western District of Oklahoma. 	BOP Inmate
Locator, https://www.bop.gov/inmateloc/ (last visited August 12,
2024). 	The information in the BOP Online Inmate Locator is
self-authenticating and properly the subject of judicial notice.
See Fed. R. Evid. 201(b)(2); United States v. Rivera, 466 F.
Supp. 3d 310, 313 (D. Conn. 2020).
2 Mr. Lobon Rivas filed a near-identical § 2241 petition in
this court, which is Case No. 23-476-SE-AJ. 	In that case, the
Warden moved for summary judgment on the same grounds and Mr.
Lobon Rivas filed the same objection. 	The court will issue a
separate report and recommendation in Case No. 23-476-SE-AJ.
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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). 	The
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).
The Warden moves for summary judgment under Rule 56.
“Summary judgment is appropriate only if ‘there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’” 	Gattineri v. Wynn MA, LLC, 93
F.4th 505, 509 (1st Cir. 2024) (quoting 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.
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
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party from the properly supported facts in the record. 	Lech v.
von Goeler, 92 F.4th 56, 64 (1st Cir. 2024). 	Based on that view
of the record, 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
Mr. Lobon Rivas is serving a 120-month sentence following a
conviction in the Middle District of Florida for violating 46
U.S.C. § 70503(a), 70506(a) & (b), and 21 U.S.C.
§ 960(b)(1)(B)(ii) (attempt and conspiracy to possess with
intent to distribute five kilograms or more of cocaine while on
board a vessel subject to United States jurisdiction). 	United
States v. Lobon Rivas, No. 8:17-cr-380-T-33AAS (M.D. Fla. Jan.
22, 2018) (judgment). 	BOP records state that Mr. Lobon Rivas’s
release date is February 13, 2026. 	During his time incarcerated
Mr. Lobon Rivas has earned at least 365 days of time credits
under the FSA.
In support of his motion for summary judgment, the Warden
submitted the declaration of Todd J. Thurlow, Assistant Field
Office Director for Immigrations and Customs Enforcement (“ICE”)
in Manchester, New Hampshire. 	Mr. Thurlow, who has access to
ICE records, states that a “Notice and Order of Expedited
Removal” was issued for Mr. Lobon Rivas on November 14, 2023.
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Doc. No. 11-2 ¶ 4. 	The Warden also filed the “Notice and Order
of Expedited Removal,” which was issued by Deportation Officer
Joseph Gilbert and states that Mr. Lobon Rivas, a citizen of
Colombia and noncitizen of the United States, is subject to
expedited removal under § 212(a)(7)(A)(i)(I) of the Immigration
and Nationality Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (immigrant
who does not possess a valid entry document and suitable
identification at time of application for admission is
inadmissible). 	Doc. No. 1-3, at 1-2. 	The document indicates
that Mr. Lobon Rivas refused to sign it.
Discussion
The Warden moves for summary judgment, arguing that Mr.
Lobon Rivas is ineligible for application of his earned FSA
credits because he is the subject of a final order of removal,
18 U.S.C. § 3632(d)(4)(E)(i).3 	Mr. Lobon Rivas objects. 	He
asserts that an expedited order of removal is not a “final order
3 The Warden also briefly asserts in his motion that Mr.
Lobon Rivas failed to exhaust his administrative remedies before
filing his petition. 	Additionally, the Warden, while
acknowledging a contrary decision from this court, does not
concede that the court has jurisdiction over this § 2241
petition after Mr. Lobon Rivas’s transfer from FCI Berlin to FTC
Oklahoma City. 	The court finds that it has jurisdiction for the
reasons discussed in Jones v. Warden, No. 21-cv-767-SE, 2023 WL
2186459, 2023 U.S. Dist. LEXIS 29800 (D.N.H. Feb. 22, 2023), and
it does not address the Warden’s exhaustion argument because Mr.
Lobon Rivas’s petition should be dismissed on its merits.
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of removal” for purposes of § 3632(d)(4)(E)(i), as a final order
of removal may only be issued by a judge.
In general, the FSA permits federal prisoners to earn time
credits if they successfully participate in certain programs
aimed at reducing recidivism or otherwise engage in productive
activities. 	See 18 U.S.C. § 3632(d)(4)(A), (C); Komando v.
Luna, No. 22-cv-425-SE, 2023 WL 310580, at *4, 2023 U.S. Dist.
LEXIS 11477, at *9 (D.N.H. Jan. 13, 2023). 	FSA time credits may
be applied to either advance the date on which the BOP transfers
the prisoner to prerelease custody (that is, to a residential
reentry center or home confinement) or advance the date on which
the BOP releases the prisoner from custody to supervised
release.4 	Komando, 2023 WL 310580, at *4, 2023 U.S. Dist. LEXIS
11477, at *8 (“FSA time credits, when applied, advance the date
when the prisoner will be placed in ‘prerelease custody’
(including home confinement or residential reentry facilities),
or accelerate the date when the prisoner will leave BOP custody
to start a term of court-imposed supervised release.”).
One statutory exclusion states as follows: “A prisoner is
ineligible to apply time credits under [the FSA] if the prisoner
4 	Time 	credits 	earned 	and 	applied 	under 	the 	FSA,
§ 3632(d)(4)(A), are distinct from the “good time” credits that a
prisoner may earn under § 3624(b). 	Portocarrero Montano v. Warden,
FCI 	Berlin, 	No. 	23-cv-120-SM, 	2023 	WL 	3572791, 	at 	*1, 	2023 	U.S.
Dist. LEXIS 84276, at *1-*2 (D.N.H. May 15, 2023).
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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))).” 	18 U.S.C. § 3632(d)(4)(E)(i). 	Section
1101(a)(17) states that “[t]he term ‘immigration laws’ includes
this chapter and all laws, conventions, and treaties of the
United States relating to the immigration, exclusion,
deportation, expulsion, or removal of aliens.”
In support of his motion for summary judgment, the Warden
filed evidence that shows Mr. Lobon Rivas is the subject of an
expedited order of removal. 	Mr. Lobon Rivas contends that an
expedited order of removal is not a “final order of removal” for
purposes of § 3632(d)(4)(E)(i) because it was not issued by a
judge. 	In support, he relies on Nasrallah v. Barr, 590 U.S. 573
(2020). 	In Nasrallah, the Supreme Court discussed the scope of
judicial review for orders relating to the international
Convention Against Torture in certain cases. 	See id. at 576
(“[T]he narrow question before the Court is whether, in a case
involving a noncitizen who committed a crime specified in
§ 1252(a)(2)(C), the court of appeals should review the
noncitizen’s factual challenges to the [Convention Against
Torture] order (i) not at all or (ii) deferentially.”).
Nasrallah does not address whether an expedited order of removal
is a “final order of removal” under 18 U.S.C.
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§ 3632(d)(4)(E)(i). 	See Nasrallah, 590 U.S. at 576-87. 	And,
contrary to Mr. Lobon Rivas’s position, district courts across
the country have found that expedited orders of removal are
“final orders of removal” for purposes of 18 U.S.C.
§ 3632(d)(4)(E)(i). 	See, e.g., Alexander v. Healy, No. 4:23-cv-
2384, 2024 WL 2020281, at *3, 2024 U.S. Dist. LEXIS 82633, at
*6-7 (N.D. Ohio May 7, 2024); Pineda v. Cruz, No. 23-4939 (RMB),
2024 WL 1526120, at *3, 2024 U.S. Dist. LEXIS 64478, at *6
(D.N.J. Apr. 9, 2024); Ceron v. Engleman, No. 23-3388-SSS (AGR),
2024 WL 967858, at *2, 2024 U.S. Dist. LEXIS 40468, at *3-4
(C.D. Cal. Jan. 24, 2024), R&R adopted, 2024 WL 968850, 2024
U.S. Dist. LEXIS 39335 (C.D. Cal. Mar. 6, 2024). 	These courts
observe that when the conditions for issuing an expedited order
of removal are met and the expedited order is issued, the order
is a “final order of removal” as it concludes that the alien is
removable, orders removal, and is not subject to administrative
review. 	See Pineda, 2024 WL 1526120, at *3, 2024 U.S. Dist.
LEXIS 64478, at *6 (“An expedited removal order is final when it
orders an alien deported, and the order is not subject to
administrative review.”); accord Nasrallah, 590 U.S. at 579 (“As
the parties agree, in the deportation context, a ‘final order of
removal’ is a final order ‘concluding that the alien is
deportable or ordering deportation.’”).
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The reasoning of those cases is sound and properly applied
here. 	Mr. Lobon Rivas’s expedited order of removal finds that
he is removable and orders his removal. 	Doc. No. 11-3 (“Based
upon the determination set forth above and evidence presented
during inspection or examination pursuant to section 235 of the
[Immigration and Nationality Act], and by the authority
contained in section 235(b)(1) of the Act, you are found to be
inadmissible as charged and ordered removed from the United
States.”). 	Therefore, Mr. Lobon Rivas is the subject of a final
order of removal, and 18 U.S.C. § 3632(d)(4)(E) precludes
application of Mr. Lobon Rivas’s FSA time credits to his
sentence.
Conclusion
The District Judge should grant the Warden’s motion for
summary judgment (Doc. No. 11) and direct the clerk to enter
judgment and close this case. 	Any objections to this Report and
Recommendation must be filed within 14 days of receipt of this
notice. 	The objection period may be extended upon motion. 	Only
those issues 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).
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___________ 	______________
Andrea K. Johnstone
United States Magistrate Judge
August 16, 2024
cc: 	Leonardo Lobon Rivas, pro se
Counsel of Record
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