3:25-cv-00194•CRUZ GONZALEZ v. UNDERWOOD
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1 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 Case 3:25-cv-00194-NBF-KAP Document 14 Filed 12/12/25 Page 1 of 4
2 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 Case 3:25-cv-00194-NBF-KAP Document 14 Filed 12/12/25 Page 2 of 4
3 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, Case 3:25-cv-00194-NBF-KAP Document 14 Filed 12/12/25 Page 3 of 4
4 100 (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 Case 3:25-cv-00194-NBF-KAP Document 14 Filed 12/12/25 Page 4 of 4
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