BLD-038                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-2639
                                       ___________

                                      LUIS BUILES,
                                                Appellant

                                             v.

          WARDEN MOSHANNON VALLEY CORRECTIONAL CENTER
                 ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (D.C. Civil Action No. 3-17-cv-00023)
                       District Judge: Honorable Kim R. Gibson
                      ____________________________________

                 Submitted for a Decision on the Issuance of a Certificate
                   of Appealability and for Possible Summary Action

                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   November 2, 2017

            Before: AMBRO, RESTREPO and NYGAARD, Circuit Judges

                            (Opinion filed: November 7, 2017)
                                        _________

                                        OPINION*
                                        _________

PER CURIAM



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Luis Builes appeals from an order of the United States District Court for the

Western District of Pennsylvania dismissing his petition filed pursuant to 28 U.S.C.

§ 2241. We will grant the Appellee’s motion for summary action and summarily affirm

the District Court’s judgment. See 3d Cir. LAR 27.4; I.O.P. 10.6.

       Builes is a citizen of Colombia who was convicted in the District of Massachusetts

of drug offenses and illegal reentry. He is currently confined at the Moshannon Valley

Correctional Center in Philipsburg, Pennsylvania, and asserts that he will be removed to

Colombia when his sentence expires. In February 2017, Builes filed a § 2241 petition,

alleging that his Equal Protection rights have been violated because his status as an alien

prevents him from participating in Bureau of Prisons (BOP) programs that are available

to inmates who are United States citizens. For instance, he claimed that he is not eligible

for a residential drug program, a camp program, half-way house placement, or a “near

home release move that would allow him to spend quality time with his wife and kid …

before reentering society.” He also asserted that he is unable to work in the UNICOR

program.1

       A Magistrate Judge recommended summarily dismissing the petition, stating that,

“[a]s a matter of law, [Builes] cannot show differential treatment based on alienage nor

can he show that the BOP’s policy of distinguishing between prisoners with immigration


1
 Builes also complained that his immigration status prevented him from completing his
college degree. But his allegation was not directed to the BOP. Instead, he asserted that
“[h]e was denied enrollment by the colleges because [of the] immigration detainer.”
Therefore, this claim is not cognizable in a § 2241 petition.
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detainers and those without immigration detainers is irrationally related to the legitimate

interests of preventing those prisoners from fleeing community-based confinement.”

Over Builes’ objections, the District Court adopted the Report and Recommendation,

dismissed the § 2241 petition, and denied issuance of a certificate of appealability.2

Builes appealed. The Appellee has filed a motion for summary action.

       We have jurisdiction over the instant appeal pursuant to 28 U.S.C. § 1291, and our

review of the District Court’s dismissal of Builes’ § 2241 petition is plenary. See Cradle

v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). Summary affirmance is proper

when “it clearly appears that no substantial question is presented or that subsequent

precedent or a change in circumstances warrants such action.” 3d Cir. I.O.P. 10.6.

       The Fifth Amendment lacks an Equal Protection Clause, but it contains “an equal

protection guarantee” through its Due Process Clause and prohibits the United States

from wrongfully discriminating between individuals or groups. See Abdul-Akbar v.

McKelvie, 239 F.3d 307, 316 (3d Cir. 2001) (en banc). “Aliens, even aliens whose

presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed

due process of law by the Fifth and Fourteenth Amendments.” Plyler v. Doe, 457 U.S.

202, 210 (1982). To state an equal protection claim, “a plaintiff must at a minimum



2
 Because we conclude that Builes’ challenges to the execution of his sentence were
properly raised in a § 2241 petition, see Woodall v. Fed. Bureau of Prisons, 432 F.3d 235,
241-42 (3d Cir. 2005), a certificate of appealability is not required for this appeal. See
Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009).

                                             3
allege that he was intentionally treated differently from others similarly situated by the

defendant and that there was no rational basis for such treatment.” Phillips v. County of

Allegheny, 515 F.3d 224, 243 (3d Cir. 2008); see also Reno v. Flores, 507 U.S. 292, 306

(1993) (“Of course, the INS regulation must still meet the (unexacting) standard of

rationally advancing some legitimate governmental purpose….”).

       The BOP has discretion to place prisoners in a residential substance abuse

treatment program and in various types of pre-release custody (e.g., a community

correctional facility or home confinement). See 18 U.S.C. §§ 3621(e); 3624(c).

Successful participation in a residential substance abuse treatment program may result in

a reduction in sentence. § 3621(e)(2)(B). But Immigration and Customs Enforcement

(ICE) detainees are not eligible for early release or pre-release custody alternatives. 28

C.F.R. § 550.55(b); BOP Program Statement 7310.04(10)(j). Similarly, ICE detainees

generally are not eligible for assignments in the Federal Prison Industries program

(known as UNICOR).3 28 C.F.R. § 345.35(a).

       We agree that Builes has failed to show that these policies result in aliens as a

group being treated differently from others based on their membership in a class of alien


3
  ICE detainees are not the only category of inmates ineligible for early release,
community-based custody, or UNICOR participation. See § 550.55(b) (designating as
ineligible for early release, inter alia, pretrial inmates, “[c]ontractual boarders,” inmates
who have committed certain offenses, and those who have previously received early
release); Program Statement 7310.04(10) (deeming ineligible for community-based
custody, inter alia, inmates who are assigned a “Sex Offender” Public Safety Factor,”
inmates who require inpatient medical, psychological, or psychiatric treatment, and
inmates who pose a significant threat to the community); § 345.35(a) (providing that
                                                  4
prisoners. “This is true because, on its face, the statute and regulations classify

prisoners—not as aliens and non-aliens—but as those who have ICE detainers against

them and those who do not.” Gallegos-Hernandez v. United States, 688 F.3d 190, 195-96

(5th Cir. 2012). Furthermore, Builes did not identify evidence indicating that the detainer

exclusions were motived by discriminatory intent against aliens. See Arlington Heights

v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-265 (1977).

       In any event, the District Court also properly concluded that the policies described

above survive rational basis review. Because the BOP’s policies implicate neither a

fundamental right nor a suspect class, rational basis review applies. See Gallegos-

Hernandez, 688 F.3d at 196 (holding that ICE detainee’s equal protection claim based on

exclusion from rehabilitative and early-release programs did not involve a fundamental

right); McLean v. Crabtree, 173 F.3d 1176, 1186 (9th Cir. 1999) (“[b]ecause ‘prisoners

with detainers’ does not constitute a suspect class, the detainer exclusion is valid so long

as it survives the rational basis test, which accords a strong presumption of validity.”).

Under the rational basis test, a government policy is valid if it is rationally related to a

legitimate governmental interest. Lyng v. Int’l Union, UAW, 485 U.S. 360, 370 (1988).

Excluding ICE detainees from residential drug rehabilitation programs, community-based

confinement, and UNICOR assignments is rationally related to legitimate BOP interests

in reducing the flight risk posed by prisoners facing removal and in making rehabilitative

programs available only to prisoners who have a lawful right to remain in the United


pretrial detainees are ineligible for UNICOR5assignments).
States See Gallegos-Hernandez, 688 F.3d at 196 (noting support for “the determination

that ICE detainees are ineligible to participate in prerelease halfway house confinement is

rationally related to preventing those detainees from fleeing during the community-based

portion of those programs.”); McLean, 173 F.3d at 1186 (“[E]xcluding prisoners with

detainers from participating in community-based treatment programs, and consequently

from sentence reduction eligibility, is at least rationally related to the BOP’s legitimate

interest in preventing prisoners from fleeing detainers while participating in community

treatment programs.”).

       For the foregoing reasons, there is no substantial question presented by this appeal.

We will thus grant the Appellee’s motion to summarily affirm the judgment of the

District Court. See 3d Cir. LAR 27.4; I.O.P. 10.6.




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