Tumbaco Malave v. United States

Background

Juan Salcedo Tumbaco Malave, an Ecuadorian citizen without valid immigration status in the United States, is serving a 120-month federal sentence at the Federal Medical Center in Rochester, Minnesota. He filed a petition under 28 U.S.C. § 2241 challenging the length of his imprisonment.

The Bureau of Prisons initially informed him that his projected release date was March 16, 2025. After the government issued a final order of removal on April 17, 2024, the Bureau changed the projected release date to March 16, 2026. Tumbaco Malave alleged that he had earned First Step Act time credits through recidivism-reducing programming and that the change was arbitrary because he had not been advised of it. He asserted a due-process violation and requested permission to proceed without paying filing fees and appointment of a Spanish-speaking attorney.

First Step Act credits

The First Step Act allows eligible prisoners to earn time credits through qualifying programming. Those credits may be applied toward prerelease custody or an early transfer to supervised release. But the statute states that a prisoner is ineligible to apply the credits if the prisoner is subject to a final order of removal under federal immigration law.

The court found that Tumbaco Malave did not dispute the existence of his final removal order and that the government had provided a copy. Because the statute was unambiguous, the court concluded that the Bureau of Prisons’ adjustment of his projected release date was not arbitrary; the final removal order made him ineligible to apply his earned credits to early release. The court therefore concluded that the length of his incarceration was proper and recommended denying the habeas petition.

Due process and removal order

The opinion construed Tumbaco Malave’s due-process claim under the Fifth Amendment because he was in federal custody, rather than under the Fourteenth Amendment, which applies to state action. The court noted that he did not explain what additional process the Bureau of Prisons should have provided concerning the effect of the removal order on his credits.

The court stated that the Bureau of Prisons lacked authority to decide immigration matters, control when the removal order was issued, or change the statutory effect of that order. It concluded that the Bureau’s determination of credit eligibility did not violate due process. The court also concluded that it lacked jurisdiction to review the validity of the final removal order because that authority lies with the appropriate court of appeals.

Other requests and recommendation

The court determined that no evidentiary hearing was necessary because the matter could be resolved from the record and no material facts were disputed.

The magistrate judge recommended that:

The opinion is a report and recommendation, not a final district-court order or judgment. It states that a party could file specific written objections within 14 days after being served with the report and recommendation.