Van Doan v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Giang Van Doan a/k/a Doan Giang
v. Civil No. 23-cv-183-LM-AJ
FCI Berlin Warden and U.S. Immigration
and Customs Enforcement Director
REPORT AND RECOMMENDATION
Petitioner, Giang Van Doan, a federal prisoner with an
immigration detainer, filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2241 (Doc. No. 1) against Respondents, the FCI
Berlin Warden and U.S. Immigration and Customs Enforcement (“ICE”)
Director.1 He claims the Federal Bureau of Prisons (“BOP”) is
refusing to apply his earned time credits to his sentence, based on
a 2004 “final order of removal,” in violation of the First Step Act
(“FSA”). According to Petitioner, that final order of removal is no
longer valid. He seeks an order from this court directing the BOP
to apply FSA earned time credits to his sentence and directing
Respondents to cancel his detainer, which he asserts was lodged in
violation of his federal rights.
1 See also Petition Addenda (Doc. Nos. 2, 4, 14).
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Respondents’ motion for summary judgment (Doc. No. 5) is before
the court for a recommendation as to disposition. See Order, June
15, 2023. Respondents have argued that the Petitioner is the
subject of a final order of removal and is ineligible for the
application of FSA earned time credits as a matter of law.2
Petitioner objects (Doc. No. 10), and the parties filed reply (Doc.
No. 12) and surreply (Doc. No. 13) briefs.
Background
The following facts are undisputed, except as otherwise noted.
Petitioner was born in Vietnam and entered the United States in
1982. An immigration judge ordered him removed to Vietnam on
February 10, 2004. In re Doan, Ord. of the Imm. J. (Doc. No. 10, at
5) (“Removal Order”). The Petitioner waived his right to appeal.
See id. Petitioner asserts that he has been arrested or detained
two or three times since then by ICE. Each time, however, he
asserts he was released on terms of supervision because ICE did not
want him and/or there was no significant likelihood he would be
removed to Vietnam in the reasonably foreseeable future.
Petitioner is currently a federal prisoner, serving a sentence
imposed in his criminal case in February 2016 after he pleaded
2 The Respondents have not specifically briefed or moved for
summary judgment on the Petitioner’s claims challenging his ICE
detainer.
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guilty to two counts of conspiring to distribute and possession with
intent to distribute methamphetamine in violation of 21 U.S.C. §§
841(a)(1) and 846. See United States v. Giang Van Doan, No. 14-cr-
225-MMA-4, 2023 WL 6998179, at *1, 2023 U.S. Dist. LEXIS 190225, at
*1 (S.D. Cal. Oct. 23, 2023) (procedural history). Petitioner was
sentenced to a 168-month term of imprisonment followed by a five-
year term of supervised release. See Decl. Robert Rouleau (“Rouleau
Decl.”), May 10, 2023, (Doc. No. 5-3 ¶ 5). He filed this action
while serving that sentence at FCI Berlin.
On or about April 14, 2022, ICE lodged an immigration detainer,
(Doc. No. 5-3, at 7), addressed to FCI Berlin, based on the
existence of a “final order of removal” against Petitioner. The
detainer asks FCI Berlin to hold Petitioner upon his release for up
to 48 hours, to allow ICE to assume custody. Id. FCI Berlin
officials confirmed in 2023 that ICE intends to take custody of
Petitioner after his federal sentence. Rouleau Decl. (Doc. No. 5-3
¶ 7).
A BOP FSA Time Credit Assessment completed on September 5,
2023, shows that Petitioner had earned 570 FSA time credits as of
that date. See FSA Time Credit Assessment, Sept. 5, 2023, (Doc. No.
14-1, at 2). None of those credits have been applied to his
sentence. The BOP has determined that Petitioner is ineligible for
the application of any FSA time credits because of his Removal
Order. See Rouleau Decl. (Doc. No. 5-3 ¶ 7). The BOP projects
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Petitioner’s release date to be January 11, 2026, based on his good
conduct time. See id. ¶ 5.
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).
A court ruling upon a petition for a writ of habeas corpus may
hear motions for summary judgment. Whitaker v. Meachum, 123 F.3d
714, 716 (2d Cir. 1997). Summary judgment is appropriate 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). A “material fact” is
one that has the “potential to affect the outcome of the
suit.” Cherkaoui v. City of Quincy, 877 F.3d 14, 23 (1st Cir.
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2017) (citation and internal quotation marks omitted). A “genuine
dispute” exists if a reasonable factfinder could resolve the
disputed fact in the nonmovant’s favor. Ellis v. Fidelity Mgt.
Trust Co., 883 F.3d 1, 7 (1st Cir. 2018).
Discussion
I. FSA Time Credits
The FSA allows eligible prisoners to earn up to fifteen days of
time credits for every thirty days of qualified programs and
activities they participate in while serving the custodial component
of their sentences. See 18 U.S.C. § 3632(d)(4)(A), (B). A
sufficient amount of FSA time credits, when applied, will advance
the date when an eligible prisoner will be placed in prerelease
custody and accelerate the date when that prisoner will leave BOP
custody to start a term of supervised release. See Hedges v. U.S.
Marshals Serv., No. 5:22-cv-294-DCR, 2022 WL 17177630, at *2, 2022
U.S. Dist. LEXIS 212385, at *3 (E.D. Ky. Nov. 23, 2022). The FSA
provides that any prisoner who is the subject of a final order of
removal is not eligible to have any FSA earned time credits applied
to his or her sentence. See 18 U.S.C. § 3632(d)(4)(E)(i) (“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 . . . .”).
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The parties agree that Petitioner is the subject of the 2004
Removal Order. Petitioner, however, argues that the Removal Order
is outdated and unenforceable because Vietnam will not take him
back. He also argues that the Removal Order is stayed and not final
because he had been paroled into the United States, and ICE has
previously released him without effecting his removal.3 Petitioner
further asserts that he has been denied the same access to
prerelease custody that his co-defendant received after ICE lifted
that person’s detainer, following his case manager’s inquiry.
Respondents maintain that the Removal Order is valid. They
also state that Petitioner’s Removal Order, not his detainer,
provides the basis for the BOP’s determination that he is not
eligible for the application of FSA time credits.4
Under the Immigration and Nationality Act (“INA”), if an
immigration judge decides after a hearing that a noncitizen is
inadmissible or deportable, and that the person is not entitled to
3 The parties disagree as to whether Petitioner is likely to be
removed and repatriated at this time. This court expresses no
opinion on that issue, 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.
4 Under a BOP policy that became effective in 2023, eligible
prisoners with detainers (but not final orders of removal) may be
placed in prerelease custody, upon the application of their FSA
earned time credits. See Mero v. Warden, FCI Berlin, No. 23-cv-155-
SM, 2023 DNH 097, 2023 WL 5280320, at *1, 2023 U.S. Dist. LEXIS
141097, at *3 (D.N.H. Aug. 14, 2023) (citing PS 5410.10 CN-2 (Mar.
10, 2023), https://www.bop.gov/policy/progstat/5410.01_cn2.pdf).
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relief from removal such as adjustment of status or asylum, the
immigration judge will issue an order of removal. See Johnson v.
Guzman Chavez, 141 S. Ct. 2271, 2281 (2021) (citing 8 U.S.C.
§§ 1229a(a)(1), 1229a(c)(5)). The noncitizen may challenge the
immigration judge’s order of removal by filing a motion to
reconsider, a motion to reopen, an appeal to the Board of
Immigration Appeals (“BIA”), and a petition for review in federal
court. Johnson, 141 S. Ct. at 2281 (citing 8 U.S.C. §§ 1229a(c)(5)–
(7), 1252(b); 8 C.F.R. § 1240.15).
A removal order issued by an immigration judge in removal
proceedings, like Petitioner’s, becomes “final,” pursuant to
applicable administrative regulations, upon dismissal of an appeal
by the BIA, upon waiver of appeal by the noncitizen, or expiration
of the time allotted for an appeal if the person does not appeal
within that time. See 8 C.F.R. § 1003.39 (“Except when certified to
the [BIA], the decision of the Immigration Judge becomes final upon
waiver of appeal or upon expiration of the time to appeal if no
appeal is taken whichever occurs first.”); see also id. §§ 1240.14,
1241.1(a)-(f).
Petitioner’s Removal Order states that he waived his right to
appeal in February 2004. Accordingly, the Removal Order became
administratively “final” at that time. See id. §§ 1003.39, 1240.14.
Nothing in the record suggests that the Removal Order has since been
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reconsidered, reopened, or cancelled by any agency official,
immigration judge, the BIA, or court with jurisdiction to do so.
Petitioner argues that the Removal Order is outdated. It is
undisputed that the Removal Order has not been executed,5 and that it
was issued twenty years ago. Unexecuted final orders of removal do
not expire with the passage of time. See, e.g., Romero v. Sec’y,
U.S. Dep’t of Homeland Sec., 20 F.4th 1374, 1384-85 (11th Cir. 2021)
(a removal order that was never executed was “still operative”
thirty-five years later). Cf. Calderon v. Mayorkas, No. 20-CV-3164
(GRB), 2021 WL 5707431, at *3, 2021 U.S. Dist. LEXIS 233051, at *7
(E.D.N.Y. Nov. 30, 2021) (“Plaintiff seeks to effectively nullify
the underlying [unexecuted 1995] order of deportation and thereby
runs afoul of 8 U.S.C. § 1252(a)(5)’s prohibition on this Court's
judicial review of orders of removal.”).
Petitioner argues that he was “paroled” into the United States
by an immigration judge, which he contends shows that the removal
order is not properly deemed to be “final.” This court notes that
the Petitioner has not provided evidence of that parole
determination. He appears to be referring to a decision to release
him into the United States on terms of supervised release. But even
if he is referring to a discretionary decision not to effect his
5 Cf. Morales-Izquierdo v. Gonzales, 486 F.3d 484, 487 (9th Cir.
2007) (“When an alien subject to removal leaves the country, the
removal order is deemed to be executed.”).
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removal for humanitarian reasons, for example,6 this court would not
find that his underlying removal order was not “final” for purposes
of the FSA’s ineligibility provision. See 18 U.S.C.
§ 3632(d)(4)(E)(i). 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. See Cao v. U.S. I.N.S., 189 F.
Supp. 2d 1082, 1086 (S.D. Cal. 2001) (“Even if bond was required
solely to secure appearance for removal in a case where there was no
substantial chance for removal in the foreseeable future, the order
of removal is still a valid and enforceable order.”). Cf. Johnson,
141 S. Ct. at 2288 (“the validity of removal orders is not affected
by the grant of withholding-only relief”).
Insofar as Respondents have shown that the Petitioner is the
subject of a final order of removal, and nothing in the record
6 “The most common way to be ‘paroled’ is via 8 U.S.C.
§ 1182(d)(5) . . . where a noncitizen petitions the Attorney
General, who has wide discretion to grant or deny petitions.”
L.F.O.P. v. Mayorkas, 656 F. Supp. 3d 274, 276 (D. Mass. 2023). See
generally 8 U.S.C. § 1182(d)(5) (“Attorney General may . . . in his
discretion parole into the United States temporarily under such
conditions as he may prescribe only on a case-by-case basis for
urgent humanitarian reasons or significant public benefit any alien
applying for admission to the United States, but such parole of such
alien shall not be regarded as an admission of the alien and when
the purposes of such parole shall, in the opinion of the Attorney
General, have been served the alien shall forthwith return or be
returned to the custody from which he was paroled and thereafter his
case shall continue to be dealt with in the same manner as that of
any other applicant for admission to the United States” (emphasis
added)).
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suggests that the Removal Order has been reopened, reconsidered,
cancelled, or is otherwise no longer “final” under the immigration
laws of the United States, the Petitioner is ineligible for the
application of FSA time credits by operation of 18 U.S.C.
§ 3632(d)(4)(E)(i). Accordingly, the district judge should grant
Respondents’ motion for summary judgment (Doc. No. 5) on the FSA
time credit claims.
II. ICE Detainer
Petitioner asks this court to review his ICE detainer.
Specifically, he claims that ICE agents lodged his detainer in
violation of his federal rights, and that Respondents have treated
him differently than his co-defendant. He asserts claims arising
under the Due Process Clause; a regulation, 8 C.F.R. § 241.13, which
applies to certain noncitizens in detention7; and -- liberally
7 The cited regulation describes its scope and purpose as:
[E]stablish[ing] special review procedures for those aliens who
are subject to a final order of removal and are detained . . .
after the expiration of the removal period [generally 90 days
after issuance of a final order of removal], where the alien
has provided good reason to believe there is no significant
likelihood of removal to the country to which he or she was
ordered removed, or to a third country, in the reasonably
foreseeable future.
8 C.F.R. § 241.13(a) (emphasis added).
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construing his pro se pleadings -- his right to equal protection.
See Doc. No. 4, at ¶¶ 12-13, 16.
Insofar as the Respondent’s motion for summary judgment (Doc.
No. 5) does not address the Petitioner’s claims relating to his
detainer, an Order granting the motion for summary judgment will not
dispose of all of the issues in this case. No later than thirty
days after the court rules on the motion for summary judgment (Doc.
No. 5), Respondents must file a (second) motion for summary judgment
addressing the ICE detainer claims.
Conclusion
For the foregoing reasons, the district judge should grant
Respondents’ motion for summary judgment (Doc. No. 5) on the FSA
time credit claim, leaving for further proceedings Petitioner’s
claims challenging his ICE detainer, which are not addressed in the
summary judgment motion.
Any objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. The objection
period may be extended upon motion. Failure to file any objection
within the specified time waives the right to appeal the district
court’s Order. See Santos-Santos v. Torres-Centeno, 842 F.3d 163,
168 (1st Cir. 2016). Only those issues raised in the written
objections “‘are subject to review in the district court,’” and any
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issues “‘not preserved by such objection are precluded on appeal.’”
Id. (citations omitted).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
February 21, 2024
cc: Giang Van Doan, pro se
Raphael Katz, Esq.
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