CRUZ GONZALEZ v. UNDERWOOD

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MARBIN CRUZ-GONZALEZ, 	:
Petitioner 	:
v. 	: Case No. 3:25-cv-194-SLH-KAP
MICHAEL UNDERWOOD, WARDEN, 	:
F.C.I. LORETTO, 	:
Respondent 	:
Report and Recommendation
Recommendation
Petitioner Cruz-Gonzalez, an inmate at F.C.I. Loretto, filed a petition at ECF no. 5
seeking a writ of habeas corpus pursuant to 28 U.S.C.§ 2241. Petitioner challenges the
Bureau of Prisons’ refusal to apply Earned Time Credits (ETCs) to his sentence under the
First Step Act of 2018, Pub.L.No. 115-391, 132 Stat. 5208 (December 21, 2018). The
respondent’s Response is at ECF no. 12. I recommend that the petition be denied.
Report
Cruz-Gonzalez is serving a sentence of 204 months imprisonment followed by a 5-
year term of supervised release after a counseled, negotiated guilty plea to conspiracy to
distribute controlled substances in violation of 21 U.S.C.§ 841(a)(1) and (b)(1)(A)(iii) and
(vi) and (b)(1)(B)(ii) and 21 U.S.C.§ 846. United States v. Cruz-Gonzalez, Case No. 1:20-
cr-26-SM (D.N.H. October 30, 2024). Cruz-Gonzalez’s petition is one of at least a score
of look-alike petitions filed by foreign national inmates serving a federal sentence at F.C.I.
Loretto, all seeking orders directing the Bureau of Prisons to apply ETCs earned for
participation in programming under the First Step Act. The First Step Act amended 18
U.S.C.§ 3621 to require the Bureau of Prisons to create or expand programs that will
reduce the risk of recidivism by persons convicted of federal offenses, and to apply credits
to most -but not all- inmates participating in these programs.
Congress has precluded removable inmates with a final order of removal from
having 	ETCs 	applied 	to 	their 	sentences 	under 	the 	First 	Step 	Act 	in 	18 	U.S.C.§
3632(d)(4)(E), which states:
(E) 	DEPORTABLE 	PRISONERS 	INELIGIBLE 	TO 	APPLY 	TIME
CREDITS-
(i) In General- A prisoner is ineligible to apply time credits under
subparagraph
(C) if the prisoner is 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
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Immigration and Nationality Act (8 U.S.C. § 1101(a)(17)).
The First Step Act expressly and unambiguously makes inmates with final orders of
removal ineligible to have ETCs applied. Cruz-Gonzalez attaches his immigration detainer
to his petition at Exhibit 2, Attachment 2. The detainer is based on the alleged existence
of a final order of removal. Cruz-Gonzalez and the other petitioners using the template
assert that they do not and cannot have a valid final order of removal because according
to them the only way to have a final order of removal is under 8 C.F.R. § 1241.1, which
contemplates an order of removal be made by an immigration judge after a hearing. Cruz-
Gonzalez alleges that he has never been before an immigration judge.
Pursuant to 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.” (my emphasis). That, for instance, would include a final order
of removal under Section 235(b)(1) of the Immigration and Nationality Act, 8 U.S.C. §
1225(b)(1), which states:
If an immigration officer determines that an alien . . . who is arriving in the
United States or is described in clause (iii) is inadmissible under . . . 1182(a)(7) of
this title, the officer shall order the alien removed from the United States without
further hearing or review.” 8 U.S.C. § 1225(b)(1)(A)(i).
So, for instance, an alien paroled into the United States solely for the purpose of being
criminally prosecuted is an inadmissible alien, and therefore properly subject to a final
order of removal without a hearing before an immigration judge. See 8 U.S.C. §
1225(b)(1)(C)(expedited removal orders not subject to administrative appeal); 8 C.F.R. §
235.3(b)(2)(ii)(except in limited circumstances, persons subject to expedited removal are
“not entitled to a hearing before an immigration judge . . . or to an appeal of the expedited
removal order to the Board of Immigration Appeals.”); 8 C.F.R. § 235.3(b)(7) (expedited
removal orders final once reviewed by a supervisor). See e.g. Palma-Meza v. Underwood,
Case No. 3:23-cv-226-SLH-KAP (W.D.Pa.)(recommendation pending), citing United
States v. Palma-Meza, 685 Fed.Appx. 806, 807 (11th Cir. 2017).
As the number of cases of petitioners using the form petition has increased, the
scribe authoring it has modified it slightly to take into account the rejection of the petition
in cases in which an expedited removal order exists. The template affidavit now asserts
that “[n]either the [immigration] statute nor the First Step Act contemplate a Final
Administrative Notice of Removal.” Petitioner’s Affidavit at 4. This assertion adapts the
template to this case but is still wrong, as I and judges of this court have stated. See Said
v. Underwood, 2025 WL 90145 at *1 (W.D. Pa. Jan. 14, 2025)(Hornak, C.J.); Montano v.
Underwood, 2025 WL 2782449 (W.D. Pa. Sept. 30, 2025)(Fischer, J.), adopting report
and recommendation at 2025 WL 2783793, (W.D. Pa. Feb. 12, 2025). See also Orellana
v. Garland, 117 F.4th 679, 682 (5th Cir. 2024)(discussing procedure for issuance of final
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administrative removal orders under 8 U.S.C. § 1228(b) without a hearing before an
Immigration Judge).
Cruz-Gonzalez, since he is working from a template or possibly even submitting
another person’s work, apparently fails to understand that he would not have a valid claim
even under that mistaken interpretation of 8 C.F.R. § 1241.1. As Exhibit 1, Attachment 2
to the Response in the pending matter makes clear, petitioner does have a final order
of removal under the procedures of 8 C.F.R. § 1241.1: on August 28, 2019, an order of
removal removing Cruz-Gonzalez to the Dominican Republic was signed by Immigration
Judge Mario Sturla. The IJ’s order reflects that Cruz-Gonzalez had sought withholding of
removal 	(which 	admits 	the 	existence 	of 	an 	order 	of 	removal) 	and 	although 	his
representative appeared, Cruz-Gonzalez failed to appear for the hearing. Cruz-Gonzalez
was ordered removed. There was no appeal from that order. Response, Exhibit 3.
Since a final order of removal exists, the petition must be dismissed. Although the
respondent waives any exhaustion of administrative remedies defense on Cruz-Gonzalez’
present claim, if petitioner or his scribe were to come up with another reason why
application of ETCs is required, he or they must exhaust that claim using the Bureau of
Prisons’ administrative remedy program set out at 28 C.F.R.§§ 542.10-542.19. See
Saavedra-Ramirez v. Peters, No. 3:23-CV-268-SLH-KAP, 2024 WL 2136679, at *2 (W.D.
Pa. Mar. 12, 2024), report and recommendation adopted, No. CV 3:23-268, 2024 WL
1550379 (W.D. Pa. Apr. 10, 2024), appeal dismissed, No. 24-1738, 2024 WL 4677955 (3d
Cir. July 18, 2024). Since Cruz-Gonzalez is not scheduled for release until 2036, pursuing
administrative remedies would not delay any possible relief that he could be due. (The
plea agreement of record in the District of New Hampshire suggests that Cruz-Gonzalez,
as the leader of an organization that trafficked in excess of 36 kilograms of fentanyl alone,
see ECF no. 67 in United 	States v. Cruz-Gonzalez, Case No. 1:20-cr-26-SM (D.N.H.),
would also be disqualified under the FSA due to his offense of conviction, but although
this court would have jurisdiction over a claim challenging that basis for refusing to apply
ETCs, that is not a matter this court should resolve unless the administrative process were
completed.) No further proceedings are appropriate in this petition. 	Whether Cruz-
Gonzalez could ever collaterally attack his removal order in a habeas petition remains an
open question. United States v. Rivera Lopez, 355 F. Supp. 3d 428, 435 (E.D. Va. 2018),
aff'd, 800 Fed. Appx. 187 (4th Cir. 2020)(discussing collateral attacks in prosecutions for
illegal re-entry).
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice that they have
fourteen days to file written objections to this Report and Recommendation. The parties
are advised that in the absence of timely and specific objections any appeal would be
severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93,
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100 (3d Cir.2017)(describing standard of appellate review when no timely and specific
objections are filed as limited to review for plain error).
DATE: December 12, 2025
Keith A. Pesto,
United States Magistrate Judge
Notice by ECF to counsel and by U.S. Mail to:
Marbin Cruz-Gonzalez, Reg. No. 88455-509
F.C.I. Loretto
P.O. Box 1000
Cresson, PA 16630
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