Vanin-Vergara v. Rardin

Background

Jair Vanin-Vergara is serving a 46-month prison sentence for drug-related charges at the Federal Medical Center in Rochester. After a final order of removal made him ineligible to apply 300 First Step Act time credits, he filed a petition challenging that result. The court previously denied the petition, concluding that the restriction did not violate the Constitution’s ex post facto clause, which generally bars retroactive increases in criminal punishment. Vanin-Vergara appealed and asked to proceed in forma pauperis, meaning without paying the filing fee.

Legal standard

Under 28 U.S.C. § 1915, a person seeking to proceed without paying an appellate filing fee must show that they cannot afford the fee. The court must also deny that status if the appeal is not taken in good faith. An appeal is not taken in good faith when it is frivolous; the court distinguished that question from whether the appeal is likely to succeed.

Court’s analysis

The court found that Vanin-Vergara met both requirements. His application showed that he could not afford the filing fee because he was incarcerated and had an average monthly balance of $75.54 in his prison trust account. The court also found that his appeal was not frivolous or brought in bad faith. His argument was that refusing to apply the time credits he earned because of a later-imposed final removal order violated the ex post facto clause. Although the court did not anticipate that the appeal would be successful, it did not find the appeal frivolous.

Disposition

The court GRANTED Vanin-Vergara’s Application to Proceed In Forma Pauperis on Appeal. This order addressed only his request to proceed without paying the appellate filing fee; it did not decide the outcome of the appeal.