Portocarrero-Valencia v. Warden

Background

Diego Portocarrero-Valencia was serving concurrent 10-year federal prison terms imposed by the U.S. District Court for the Southern District of Florida for drug offenses involving more than five kilograms of cocaine on a vessel subject to U.S. jurisdiction. He was incarcerated at the Federal Correctional Institution in Otisville, New York, and the Bureau of Prisons listed his release date as June 2, 2025.

Immigration and Customs Enforcement issued a Notice and Order of Expedited Removal on December 28, 2023. The order found Portocarrero-Valencia inadmissible under the Immigration and Nationality Act and ordered him removed from the United States. The Department of Homeland Security then issued an immigration detainer so it could take custody of him before his release from the Bureau of Prisons.

Portocarrero-Valencia filed a petition under 28 U.S.C. § 2241, which allows a federal prisoner to challenge the execution or administration of a sentence. He alleged that the Bureau of Prisons improperly treated him as ineligible for earned time credits under the First Step Act of 2018. He also alleged violations of due process and, in his reply, equal protection. He asked the court to direct the Bureau of Prisons to apply the credits and recalculate his release date. He represented himself.

Administrative Exhaustion

The government argued that the petition should be denied because Portocarrero-Valencia had not completed the Bureau of Prisons’ four-step administrative remedy process. The court agreed that he had not fully exhausted that process. His administrative requests had been rejected at the institution level, and he had not pursued the remaining appeals to the regional office and the Bureau of Prisons’ central office.

The court nevertheless excused the exhaustion requirement. It reasoned that, if Portocarrero-Valencia were correct about the credits, he might have been entitled to immediate relief from incarceration because his scheduled release was less than four months away. The court therefore decided the petition on the merits.

First Step Act Credits

The First Step Act allows eligible prisoners who participate successfully in certain programs or activities to earn time credits. Those credits may, in certain circumstances, be applied toward earlier transfer to prerelease custody or supervised release. But the statute excludes a prisoner who is subject to a final order of removal under the immigration laws.

The court held that Portocarrero-Valencia was subject to a final order of removal. The expedited removal order was issued by an immigration officer, personally served on Portocarrero-Valencia, and reviewed and approved by a supervisor. The court concluded that this process made the order final under the applicable immigration regulation. It rejected Portocarrero-Valencia’s argument that the order was not final because he had not received a hearing before an immigration judge, explaining that expedited removal orders do not require such a hearing or formal proceedings before an immigration judge.

The court also rejected his argument that a regulation concerning removal orders issued by immigration judges controlled the expedited removal order. It concluded that the expedited removal order was a final order of removal for purposes of the First Step Act. As a result, Portocarrero-Valencia was not entitled to use First Step Act earned time credits under the statute.

Constitutional Claims

The court rejected Portocarrero-Valencia’s due-process claim because his statutory ineligibility for the credits meant that he had no protected liberty interest in early release through those credits. The court also stated that prisoners do not have a constitutional right to early release or less restrictive custody.

To the extent he raised an equal-protection claim, the court found that he had not shown that he was intentionally treated differently from similarly situated people. It also concluded that excluding prisoners with final removal orders from First Step Act credit eligibility had a rational basis.

Disposition

Judge Cathy Seibel denied the § 2241 petition. The court directed the clerk to close the case.