United States District Court, D. New Jersey
December 12, 2005.
PETER A. PHILLIPS, Petitioner,
JOHN NASH, Warden, et al., Respondents.
The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
Petitioner Peter A. Phillips ("Phillips"), an immigration
detainee currently confined at the Federal Correctional
Institution ("FCI") at Oakdale, Louisiana, has submitted a
petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241.*fn1 The named respondents are Warden John Nash, FCI
Fort Dix, the United States Attorney, the Bureau of Immigration and Custom
Enforcement ("BICE"), and the Federal Bureau of Prisons. Phillips
was a federal prisoner at FCI Fort Dix at the time he initially
filed this petition.
For the reasons set forth below, the petition will be
Phillips filed a § 2241 habeas petition on or about January 21,
2005, challenging (a) the calculation of his good conduct time;
(b) the Bureau of Prisons' ("BOP") higher Public Safety Factor
("PSF") classification of petitioner based on the BICE's detainer
lodged against petitioner; and (c) the BOP's classification of
petitioner as an alien subject to deportation when petitioner has
a pending application for naturalization. He also seeks to enjoin
the BOP from transferring him to an immigration deportation
center while this action is pending.
On or about April 8, 2005, petitioner filed a motion seeking to
restrain the BOP from transferring him to the Oakdale Detention
Center in Oakdale, Louisiana. This motion became moot when
petitioner was in fact transferred to Oakdale in April
2005.*fn2 Recently, Phillips filed an "addendum" to his
habeas petition seeking his immediate deportation. II. ANALYSIS
A. Good Conduct Time Claim
Phillips appears to argue that the BOP's interpretation of
18 U.S.C. § 3624 (b) is unreasonable, and that the BOP's calculation
of his good conduct time does not reflect the intent of the
statute. Section 3624(b) of the United States Code, Title 18,
governs good conduct time for federal prisoners. This section
"Subject to paragraph (2), a prisoner who is serving
a term of imprisonment of more than 1 year other than
a term of imprisonment for the duration of the
prisoner's life, may receive credit toward the
service of the prisoner's sentence, beyond the time
served, of up to 54 days at the end of each year of
the prisoner's term of imprisonment, beginning at the
end of the first year of the term, subject to
determination by the Bureau of Prisons that, during
that year, the prisoner has displayed exemplary
compliance with institutional disciplinary
regulations. . . . Credit that has not been earned
may not later be granted. Subject to paragraph (2),
credit for the last year or portion of a year of the
term of imprisonment shall be prorated and credited
within the last six weeks of the sentence."
18 U.S.C. § 3624(b) (1). Subparagraph (b) (2) provides that
credits awarded after the date of enactment (April 26, 1996) of
the Prison Litigation Reform Act (Title VII of Pub.L. 104-134)
"shall vest on the date the prisoner is released from custody."
18 U.S.C. § 3624 (b) (2).
The Bureau of Prisons has codified its interpretation of former
and current § 3624(b) at 28 C.F.R. § 523.20.
Pursuant to 18 U.S.C. 3624(b), as in effect for
offenses committed on or after November 1, 1987 but
before April 26, 1996, an inmate earns 54 days credit toward service of sentence (good conduct time credit)
for each year served. This amount is prorated when
the time served by the inmate for the sentence during
the year is less than a full year. The amount to be
awarded is also subject to disciplinary
disallowance. . . . Pursuant to 18 U.S.C. 3624(b), as
in effect for offenses committed on or after April 26,
1996, the Bureau shall consider whether the inmate
has earned, or is making satisfactory progress (see §
544.73 (b) of this chapter) toward earning a General
Educational Development (GED) credential before
awarding good conduct time credit.
(a) When considering good conduct time for an inmate
serving a sentence for an offense committed on or
after April 26, 1996, the Bureau shall award:
(1) 54 days credit for each year served (prorated
when the time served by the inmate for the sentence
during the year is less than a full year) if the
inmate has earned or is making satisfactory progress
toward earning a GED credential or high school
diploma; or . . .
This interpretation is implemented through BOP Program Statement
("P.S.") 5880.28 (emphasis added). See also P.S. 5884.01, Good
Conduct time Under the Prison Litigation Reform Act. The Bureau
of Prisons has determined that "54 days of GCT [("good conduct
time")] may be earned for each full year served on a sentence
in excess of one year," P.S. 5880.28(g) (emphasis added), and has
derived a formula to calculate the amount of GCT that may be
earned for any fractional year served on a sentence in excess of
For release purposes, subsection 3624(b) is the most
important provision in the computation process since
the proper application of that subsection determines
the actual statutory date of release for the
prisoner. The release date is determined, of course,
by subtracting the total amount of GCT awarded during
the term of the sentence from the full time date of
the sentence. The total amount of GCT awarded during
the term of a sentence is found by adding the amount
of GCT awarded at the end of each year to the amount
of GCT awarded for the last portion of a year.
As noted in (1) above, 54 days of GCT may be awarded
for each full year served on a sentence in excess
of one year. Since 54 days of GCT per year cannot be
divided evenly into one year, or 12 months, or 52
weeks, or 365 days, determining the amount of GCT
that may be awarded for the last portion of a year on
the sentence becomes arithmetically complicated. The
BOP has developed a formula (hereinafter called the
"GCT formula") that best conforms to the statute when
calculating the maximum number of days that may be
awarded for the time served during the last portion
of a year on the sentence.
The GCT formula is based on dividing 54 days (the
maximum number of days that can be awarded for one
year in service of a sentence) into one day which
results in the portion of one day of GCT that may be
awarded for one day served on a sentence. 365 days
divided into 54 days equals . 148. Since .148 is
less than one full day, no GCT can be awarded for one
day served on the sentence. Two days of service on a
sentence equals.296 (2 × .148) or zero days GCT; . . .
seven days equals 1.036 (7 × .148) or 1 day GCT.
The fraction is always dropped.
. . .
It is essential to learn that GCT is not awarded on
the basis of the length of the sentence imposed, but
rather on the number of days actually served. In
other words, when the GCT awarded plus the number of
days actually served equals the days remaining on the
sentence, then the prisoner shall be released on the
date arrived at in the computation process. (days
remaining on sentence (GCT days served) = release
date). . . .
P.S. 5880.28(g), Sentence Computation Manual CCCA, at 1-40
through 1-45 (emphasis added).
Phillips admits that he exhausted his administrative remedies
challenging the BOP's calculation of his good conduct time, and that the Administrator for National inmate Appeals
ultimately determined that the BOP computed his sentence as
Similarly, this Court finds that the BOP's interpretation is
reasonable and entitled to deference under the rule of Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842-43 (1984).
When a court reviews an agency's construction of the
statute which it administers, it is confronted with
two questions. First, always, is the question whether
Congress has directly spoken to the precise question
at issue. If the intent of Congress is clear, that is
the end of the matter; for the courts, as well as the
agency, must give effect to the unambiguously
expressed intent of Congress. If, however, the court
determines Congress has not directly addressed the
precise question at issue, the court does not simply
impose its own construction on the statute, as would
be necessary in the absence of an administrative
interpretation. Rather, if the statute is silent or
ambiguous with respect to the specific issue, the
question for the court is whether the agency's answer
is based on a permissible construction of the
Chevron, 467 U.S. at 842-43 (footnotes omitted).
Two Circuit Courts of Appeals have addressed the
statutory-construction issue presented here. In Williams v.
LaManna, 20 Fed. Appx. 360, 361, 2001 WL 1136069 (6th Cir. Sept.
19, 2001) (unpubl.), the Court of Appeals for the Sixth Circuit
held that "[t]he statute clearly states that good conduct time is
awarded on time served by the inmate, not on the time that might
potentially be served by the inmate." The Court of Appeals for the Ninth Circuit did not find the
language so clear. "In this case, the words of the statute do not
provide clear guidance as to what the phrase `term of
imprisonment' means." Pacheco-Camacho v. Hood, 272 F.3d 1266,
1268 (9th Cir. 2001) (involving a claim by a prisoner sentenced
to a term of imprisonment of one year and one day), cert.
denied, 535 U.S. 1105 (2002). The Court further held that the
legislative history did nothing to remove that ambiguity. See
id. at 1269. Proceeding to the second step of the Chevron
analysis, the Court found that the language granting the BOP
authority to award or withhold good time credits and providing
for proration of the credit for the last year or portion of a
year implicitly charged the Bureau of Prisons with implementation
of the proration scheme. See id. at 1270. The Court held that
the agency's interpretation of the statute and proration formula
were reasonable, and entitled to deference, in that they prevent
prisoners from receiving a windfall, in the form of full credit
for time they do not serve, and they enable prisoners to estimate
with certainty the time of their release. See id. at 1268-71;
See also Perez-Olivio v. Chavez, 394 F.3d 45 (1st Cir.
2005); White v. Scibana, 390 F.3d 997 (7th Cir. 2004).
Recently the Court of Appeals for the Third Circuit, relying on
Pacheco-Camacho, held that even if the language "term of imprisonment" is ambiguous, the BOP reasonably interpreted the
statute's language. See Brown v. DeRosa, Case No. 04-3731 (3d
Cir. Feb. 3, 2005) (unpubl.). This Court agrees with and adheres
to that ruling. Therefore, this claim for habeas relief is
B. Petitioner's PSF and Classification Based on His Deportable
Alien Status (Grounds B and C in Petition)
Next, Phillips appears to challenge the BOP's classification of
him and his PSF determination based on his status as an alien
subject to deportation, which result in his not being eligible
for lower level classification and community pre-release
programs. He claims that a determination on his removal from the
United States and/or his deportability has not been made. He also
contends that his application for naturalization is open and
negates any determination by the BOP that petitioner is an alien
subject to removal.
These claims have been rendered moot by a recent order of
deportation issued by an Immigration Judge against Phillips. In
his addendum to this petition, filed on November 2, 2005,
Phillips concedes his order of deportation and actually requests
that his removal be effected as soon as possible to Sweden. Consequently, the Court finds that petitioner's claims about the
BOP's classification of him as a deportable alien, and his
then-pending naturalization application, are now moot. These
claims will be dismissed accordingly.
C. Request for Immediate Deportation
Finally, in his recent addendum to the petition, Phillips seeks
his immediate deportation to Sweden. He is, however, still
serving the remaining time on his prison sentence at FCI Oakdale,
and is not projected for release until February 21, 2006.
Prior to 1996, the Immigration and Nationality Act ("INA")
generally required incarcerated aliens to serve their sentences
before being deported (now "removed"). See 8 U.S.C. § 1252(h)
(1995) (in relevant part, "An alien sentenced to imprisonment
shall not be deported until such imprisonment has been terminated
by the release of the alien from confinement."). In the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
Pub.L. No. 104-132, § 438, 110 Stat. 1275 (1996), and again five
months later in the Omnibus Appropriations Act of 1997, Pub.L.
No. 104-208, Div. C, §§ 305-06, 1996 U.S.C.C.A.N. (110 Stat.)
3009-598, 3009-599, 3009-607, Congress amended § 1252
(h)*fn4 and recodified it at 8 U.S.C. § 1231 (a) (4) (B), so
that it now grants the Attorney General discretion to depart from the general rule
and to remove certain aliens prior to the completion of their
terms of incarceration.
(A) . . . Except as provided in section 259(a) of
Title 42 and [subparagraph (B)], the Attorney General
may not remove an alien who is sentenced to
imprisonment until the alien is released from
imprisonment. . . .
(B) . . . The Attorney General is authorized to
remove an alien . . . before the alien has completed
a sentence of imprisonment (i) . . . if the
Attorney General determines that (I) the alien is
confined pursuant to a final conviction for a
nonviolent offense (other than certain excepted
offenses) and (II) the removal of the alien is
appropriate and in the best interest of the United
States; . . .
(D) No cause or claim may be asserted under this
paragraph against any official of the United States
or of any State to compel the release, removal, or
consideration for release or removal of any alien.
8 U.S.C. § 1231 (a) (4) (A), (B), (D).
Every federal court to consider this provision has determined
that the statute vests in the Attorney General the sole
discretion and authority to make early removal decisions and that
no private right of action for immediate removal exists. See,
e.g., United States v. Marin-Castaneda, 134 F.3d 551, 556 (3d
Cir.), cert. denied, 523 U.S. 1144 (1998) (addressing the issue
in the context of a prisoner's request for downward departure,
under United States Sentencing Guideline § 5K2.0, based upon the
prisoner's willingness to consent to immediate removal); United
States v. Vergara, 133 F.3d 919, 1998 WL 17029 (4th Cir. 1998)
(unpubl.); Thye v. United States, 109 F.3d 127, 128-29 (2d Cir. 1997) (a convicted alien is not entitled to seek
an order of immediate deportation before completing his prison
term); Koos v. Holm, 204 F. Supp.2d 1099, 1108-09 (W.D. Tenn.
2002); United States v. Bjoyo, 1998 WL 850815 (N.D. Ill. Dec.
2, 1998); United States v. Lozada, 1996 WL 502200 (E.D. Pa.
Thus, Phillips' confinement at FCI Oakdale until the completion
of his term of incarceration does not violate the Constitution or
laws of the United States, and he has no private right of action
to compel his removal prior to the completion of his term of
incarceration. See Thye, 109 F.3d at 128 (holding that § 1252
(h) (2) (A) does not create a private right of action that would
allow a party to compel the Attorney General to release
petitioner from his prison sentence for immediate deportation);
Perez v. Immigration & Naturalization Service, 979 F.2d 299 (3d
Cir. 1992) (interpreting the pre-AEDPA § 1252(h), the Third
Circuit held that a prisoner cannot compel the INS to deport him
prior to the completion of his custodial sentence).
Moreover, Phillips fails to demonstrate that the two conditions
under 8 U.S.C. § 1231 (a) (4) (B) have been met before early
deportation may be allowed. First, the Attorney General must
determine that the alien is confined for a non-violent offense.
Second, the deportation of the alien must be in the best interest
of the United States. The statute provides the Attorney General
with the "sole and unfettered discretion" to deport criminal aliens prior to the completion of their sentence
of imprisonment only if these two conditions are satisfied.
United States v. Velasquez, 930 F. Supp. 1267, 1268 (N.D. Ill.
1996) (citing Section 438 (a) of the AEDPA-amended
8 U.S.C. § 1252(h)).
Finally, under 8 U.S.C. § 1228, the relief of immediate
deportation, as apparently sought by Phillips, is implicitly
Nothing in this section shall be construed as
requiring the Attorney General to effect the removal
of any alien sentenced to actual incarceration,
before release from the penitentiary or correctional
institution where such alien is confined.
8 U.S.C. § 1228 (a) (3) (B).
In this case, Phillips has not sought or received any
determination from the Attorney General concerning his
suitability for immediate deportation. The law is clear that
Phillips has no private right of action, as a convicted alien, to
seek his early deportation before serving his complete sentence
of imprisonment.*fn5 Therefore, under these circumstances,
Phillips' confinement in the federal prison at Oakdale until the completion of his sentence of imprisonment does not violate the
Constitution, or any other laws or treaties of the United States.
This claim for immediate deportation will be dismissed for
failure to state a claim for federal habeas relief under § 2241.
For the reasons set forth above, the Petition will be dismissed
in its entirety as against all respondents. An appropriate order
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