United States District Court, S.D. Georgia, Dublin Division
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
BRIAN K. EPPS, Magistrate Judge.
Petitioner, a federal inmate currently incarcerated at McRae Correctional Facility in McRae, Georgia, brings the above-captioned petition pursuant to 28 U.S.C. § 2241. (Doc. no. 1.) Having considered all the relevant pleadings, for the reasons set forth below, the Court REPORTS and RECOMMENDS that Petitioner's motion for "immediate favorable decision" be DENIED, the petition be DENIED, that this civil action be CLOSED, and that a final judgment be ENTERED in favor of Respondent.
Petitioner, a citizen of India, was sentenced on July 29, 2009 to twenty-seven months imprisonment and three years of supervised release on a conviction for distribution of a controlled substance, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. (Doc. no. 1, pp. 2-3; doc. no. 13-1, pp. 6-9.) Petitioner's projected release date is January 24, 2015. (Doc. no. 13-1, p. 2.)
Petitioner pursued a transfer to a Residential Reentry Center or home confinement through the administrative procedures at McRae Correctional Facility. (Doc. no. 13-1, pp. 13-22.) The Bureau of Prisons ("BOP") denied the request because Petitioner's Public Safety Factor ("PSF") of Deportable Alien makes him ineligible for placement in such programs. (Id.) BOP defines PSF as "relevant factual information regarding the inmate's current offense, sentence, criminal history, or institutional behavior that requires additional security measures be employed to ensure the safety and protection of the public." BOP Program Statement 5100.08, Chapter 5, p. 7 (2006). BOP defines "Deportable Alien" as:
A male or female inmate who is not a citizen of the United States. All long-term detainees will have this PSF applied. When applied, the inmate or the long-term detainee shall be housed in at least a Low security level institution.
The PSF shall not be applied, or shall be removed when the U.S. Immigration and Customs Enforcement (ICE) or the Executive Office for Immigration Review (EOIR) have determined that deportation proceedings are unwarranted or there is a finding not to deport at the completion of deportation proceedings.... Additionally, the PSF shall not be applied if the inmate has been naturalized as a United States citizen.
Id. at p. 9.
Petitioner filed the instant action asserting that BOP has not provided him with an "individualized determination" for home detention pursuant to 18 U.S.C. § 3624(c) and 28 C.F.R. 570.22. (See generally doc. no. 1.) Under § 3624(c): "The Director of the Bureau of Prisons shall, to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community. Such conditions may include a community correctional facility." Under 28 C.F.R. § 570.22: "Inmates will be considered for pre-release community confinement in a manner consistent with 18 U.S.C. § 3621(b), determined on an individual basis, and of sufficient duration to provide the greatest likelihood of successful reintegration into the community, within the time-frames set forth in this part."
Petitioner also challenges his PSF of deportable alien because he argues that whether he is deportable is actually in question for two reasons. (Doc. no. 1, pp. 2-7.) First, he has unfrivolous grounds against deportability and outlines the argument he will make to immigration authorities about why the elements of his conviction should not make him deportable. Second, even if an immigration judge finds Petitioner deportable, he asserts he is eligible for Cancellation of Removal under 8 U.S.C. § 1229b(a). Therefore, he wishes for the Court to require BOP to give him an individualized hearing for home detention without taking his PSF of deportable alien into account. (Doc. no. 1, p. 15.)
Respondent contends that Petitioner may not bring his claims in a § 2241 petition, and alternatively, is not entitled to relief on the merits of his position. (See doc. no. 13.)
On December 5, 2014, the Clerk of Court filed Petitioner's reply to Respondent's return to this Court's show cause order, which Petitioner entitled a motion requesting an "Immediate Favorable Decision" on his petition. (Doc. no. 14.)
A. Petitioner May Bring His Claim in a § ...