     Case: 10-50943   Document: 00511925554    Page: 1   Date Filed: 07/18/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                   FILED
                                                                  July 18, 2012

                                  No. 10-50943                   Lyle W. Cayce
                                                                      Clerk

RICARDO GALLEGOS-HERNANDEZ,

                                            Petitioner - Appellant
v.

UNITED STATES OF AMERICA; WARDEN, RCDC III; BUREAU OF
PRISONS; U.S. ATTORNEY GENERAL,

                                            Respondents - Appellees



                  Appeal from the United States District Court
                       for the Western District of Texas



Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:
        Ricardo Gallegos-Hernandez, federal prisoner # 36299-013, an alien with
a detainer placed against him, proceeding pro se and in forma pauperis,
challenges the denial of his 28 U.S.C. § 2241 petition seeking the benefit of
drug-rehabilitation programs and halfway house placement. The district court
dismissed the action for lack of subject-matter jurisdiction under § 2241 on
grounds that the asserted claims should have been brought under 42 U.S.C. §
1983. In the alternative, the district court held the case should be dismissed
because Gallegos had failed to exhaust his administrative remedies. Finally,
the court alternatively held, with respect to the merits, that Gallegos had failed
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to state a claim for the denial of any constitutional right. Gallegos argues that
his claim was properly brought under § 2241; that he was not required to
exhaust his administrative remedies; that his exclusion from the program
violated his due process rights; and, finally, that his exclusion violated his equal
protection rights. We hold that the district court erred in dismissing Gallegos’s
claim for lack of jurisdiction and hold that Gallegos’s claim is properly brought
under § 2241. We also hold that the district court, in its alternative denial of
relief, further erred in requiring Gallegos to exhaust his administrative
remedies. We ultimately AFFIRM the district court’s judgment dismissing
Gallegos’s petition on its merits for failure to state a claim for the denial of any
constitutional right.
                                         I.
      Gallegos, a native of Mexico, was convicted of illegal reentry in violation
of 8 U.S.C. §§1326(a) and (b)(2).        He was sentenced to 48 months of
imprisonment. Immigration and Customs Enforcement (ICE) issued a detainer
against him under 8 U.S.C. § 1231(a)(5) based on its determination that he is
subject to immediate removal from the United States upon his release from
Bureau of Prisons’ (BOP) custody.
      Gallegos has filed a habeas petition under 28 U.S.C. § 2241, asserting
that the BOP improperly denied him benefits and opportunities made available
under 18 U.S.C. §§ 3621 and 3624 on the basis that he is not a U.S. citizen.
Sections 3621 and 3624 involve drug treatment and other rehabilitation
programs, which, if completed, offer prisoners potential reductions in sentence
up to 12 months. Placement in community-based reentry facilities (i.e., halfway
houses) is a component of these programs. 28 C.F.R. §§ 550.53(a)(1)-(3). The
BOP has, however, exercised its discretion to exclude ICE detainees from
eligibility for early release and participation in the community-based treatment


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programs because of the flight risk associated with such prisoners. 28 C.F.R.
§ 550.55(b)(1). In his petition, Gallegos challenged the constitutionality of these
exclusions.   He further maintained that exhaustion of his administrative
remedies would be futile because these constitutional claims could not be
addressed administratively.
      The district court dismissed the petition for lack of subject-matter
jurisdiction under § 2241, as it determined the claims did not “impact the fact
or duration” of his sentence. The court concluded that the claims should have
been brought under 42 U.S.C. § 1983. The district court also gave alternative
reasons that the petition had no merit: the petition should be dismissed for
Gallegos’s failure to exhaust his administrative remedies; the petition should
be denied because Gallegos has no liberty interest in early release to support a
due-process claim; and, he has no equal-protection right to placement in a
particular penal institution. This appeal followed. It is one of approximately
50 similar appeals pending before our court, in the sense that this appeal
challenges the BOP’s denial of the drug rehabilitation and halfway house
programs to inmates who have detainers placed on them.
                                        II.
      In challenging the denial and dismissal of his § 2241 petition, Gallegos
argues that the district court had subject-matter jurisdiction because § 2241 is
the proper procedural vehicle for his claims; that he was not required to exhaust
his administrative remedies; that he has a liberty interest in rehabilitation and
placement in a halfway house; and, finally that his equal protection rights were
violated by denying him these benefits on grounds that he is an alien.
      Our court reviews a dismissal for lack of subject-matter jurisdiction de
novo. Williams v. Dallas Area Rapid Transit, 242 F.3d 315, 318 (5th Cir. 2001).
We review for abuse of discretion a dismissal of a § 2241 petition for failure to


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exhaust administrative remedies. Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994).
“In an appeal from the denial of habeas relief, this court reviews a district court’s
findings of fact for clear error and issues of law de novo.” Jeffers v. Chandler,
253 F.3d 827, 830 (5th Cir. 2001).
                                         A.
      We begin by addressing the jurisdictional ruling upon which the district
court based its dismissal. Section 2241 is the proper procedural vehicle if a
prisoner “challenges the execution of his sentence rather than the validity of his
conviction and sentence.” United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992).
      Here, Gallegos maintains he is being denied benefits that could result in
a one-year reduction in his sentence. As we have noted, participation in the
rehabilitation program can result in a reduction in sentence of up to twelve
months. A claim challenging the denial of entry into the program therefore is
properly raised under § 2241 and the district court erred in concluding it lacked
subject-matter jurisdiction of Gallegos’s § 2241 petition. See Cervante v. United
States, 402 F. App’x 886, 887 (5th Cir. 2010) (court had subject-matter
jurisdiction over § 2241 claim seeking admission into drug rehabilitation
program); see also Rublee v. Fleming, 160 F.3d 213, 214-17 (5th Cir. 1998);
Carvajal v. Tombone, 31 F. App’x 155 (5th Cir. 2001).
                                         B.
      Now that we have determined that the district court had jurisdiction to
consider the claims, we must address the alternative rulings on the merits of the
claims because they are now at issue. We thus turn to the question of whether
Gallegos was required to exhaust his administrative remedies. We have held
that a federal prisoner filing a § 2241 petition must first pursue all available
administrative remedies. See Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir.
1993). However, “[e]xceptions to the exhaustion requirement are appropriate
where the available administrative remedies either are unavailable or wholly

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                                  No. 10-50943

inappropriate to the relief sought, or where the attempt to exhaust such
remedies would itself be a patently futile course of action.” Fuller, 11 F.3d at 62.
      Here, Gallegos challenges the constitutionality of the BOP regulations.
His claim is not that the BOP has erred in its application of the regulation
excluding alien detainees from participating in rehabilitation programs and
halfway house placements. His argument is that the regulation itself must be
struck from the Code of Federal Regulations because it violates the due-process
and equal-protection rights, under the United States Constitution, of him and
all non-citizens.   Thus, it would have been futile for him to make an
administrative challenge seeking this relief from those who are charged to
enforce the regulation. See Taylor v. United States Treasury Dept., 127 F.3d 470,
477 (5th Cir. 1997) (noting exhaustion not required where, inter alia, claimant
raises constitutional claim that agency would clearly reject). Our precedent
supports Gallegos’s argument and therefore we hold that the district court erred
in dismissing these claims for failure to exhaust. Now that the merits of the
claims are before us, we will turn to the substance of those claims.
                                         C.
      Gallegos is housed in a facility that segregates alien inmates from citizen
inmates. Where he is housed, drug-rehabilitation and other related programs
that could lead to early release are not available. The denial of these benefits is
the basis of Gallegos’s due-process claims.        The district court, however,
concluded he had no liberty interest in a particular facility or in early release.
Gallegos responds by contending these liberty interests arise from §§ 3621 and
3624, and, thus, the BOP policy of denying access to these opportunities to ICE
detainees is arbitrary and capricious.
      Section 3624(c) provides that the BOP “shall, to the extent practicable”
afford prisoners an opportunity to prepare for reentry to the community.
Gallegos seizes on the word “shall” as creating a liberty interest in these

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                                  No. 10-50943

programs and opportunities. Our court, however, explained in Richardson v.
Joslin, 501 F.3d 415 (5th Cir. 2007), that “[t]he hallmark of a statute that has
not created a liberty interest is discretion,” and “[w]here the statute grants the
prison administration discretion, the government has conferred no right on the
inmate.” Id. at 419 (emphasis added). As evidenced by the phrase “to the extent
practicable” and the employment of “individual basis” review of eligibility
provided in the regulations, the BOP has discretion whether to grant the
benefits. See 28 C.F.R. § 570.22. Consequently, there is no right conferred here.
Furthermore, our court has explained that § 3624 does not impinge on the BOP’s
authority to determine the facility in which a prisoner should be housed. United
States v. Sneed, 63 F.3d 381, 388 n. 6 (5th Cir. 1995); see also Tighe v. Wall, 100
F.3d 41, 42 (5th Cir. 1996). As such, there is no liberty interest in a particular
facility–including      one   wherein    drug-rehabilitation      programs      are
available–created by § 3624.
      Section 3621 provides that the BOP “shall” provide residential substance
abuse treatment to prisoners with treatable addictions and shall offer early
release as a potential incentive to complete the program. See §§ 3621 (b) and
(e)(2)(B). But this statute does not create a liberty interest in early release. As
we have explained in Rublee, 160 F.3d at 216, § 3621(e)(2)(B) affords the BOP
discretion in deciding whether to allow early release. Id. at 217. Because
neither statute creates a liberty interest in the benefits Gallegos claims, his due-
process claims fail.
                                        D.
      Gallegos further contends that denial of rehabilitation benefits on the
basis of his status as a non-citizen prisoner violates his equal-protection rights.
To establish an equal protection claim, Gallegos must show that two or more
classifications of similarly situated persons were treated differently.         See
Stefanoff v. Hays County, Tex., 154 F.3d 523, 525-26 (5th Cir. 1998). Once this

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element is established, the court must then determine the appropriate level of
scrutiny. Id. at 525. “[S]trict scrutiny is appropriate only where a government
classification implicates a suspect class or a fundamental right.” Rublee, 160
F.3d at 217. “Otherwise, rational-basis review applies and this court need only
determine whether the classification is rationally related to a legitimate
government interest.” Id.
      As other circuits have recognized, alien prisoners with ICE detainers, such
as Gallegos, cannot show that exclusion from rehabilitation programs, or from
halfway house placement, establishes that alien prisoners, as an identifiable
group, are being treated differently from other similarly situated prisoners who
are not aliens. See McLean v. Crabtree, 173 F.3d 1176, 1185 (9th Cir. 1999).
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. Id. Gallegos points to no evidence that the
exclusion is motivated by discriminatory intent against aliens. Instead, Gallegos
has only shown that the BOP regulations require “prisoners with detainers being
treated differently from prisoners without detainers.” Id.
      The Third Circuit also supports this reasoning as it found identical
claims–ICE detainees seeking to participate in rehabilitative and early-release
programs excluded solely on the basis of their having ICE detainers lodged
against them–without merit because the class of ineligible prisoners included
non-aliens as well as aliens. Adams v. Apker, 148 F. App’x 93, 95-96 (3d Cir.
2005); see also 28 C.F.R. § 550.55(b) (listing inmates not eligible for early
release); P.S. 7310.04, pp. 10-11 (listing inmates not ordinarily eligible for
halfway house placement).
      In any event, this claim survives rational-basis review. Rational-basis
review is appropriate because the classification of prisoners based on whether
they have ICE detainers is not a suspect classification. Carvajal, 31 F. App’x at

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155. Nor does this claim involve a fundamental right. See Wottlin v. Fleming,
136 F.3d 1032, 1036-37 (5th Cir. 1998); see also Torres v. Chapman, 359 F. App’x
459, 462 (5th Cir. 2009) (“Our precedent establishes that the . . . opportunity to
obtain a reduced sentence [under § 3621] is not a fundamental right.”). Applying
rational-basis review, our court has previously held that 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. Carvajal, 31 F. App’x
at 155. This reasoning is supported by that of other circuits. See McLean, 173
F.3d at 1186 (“Excluding prisoners with detainers from participating in the
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.”). Thus, Gallegos’s equal-protection claims fail.
                                         III.
      We sum up: The district court erred in its conclusion that it lacked subject-
matter jurisdiction over Gallegos’s claims under 28 U.S.C. § 2241. We hold that
§ 2241 is indeed the proper procedural vehicle for Gallegos’s claims. In its
alternative holding, the district court also erred in dismissing the complaint for
failure to exhaust his administrative remedies. Because Gallegos raised the
constitutionality of the statutes and regulations, exhaustion before the
administrative agency would have been futile.           Finally, the district court
correctly concluded that Gallegos failed to establish a denial of his due-process
or equal-protection rights.
      For the foregoing reasons, the judgment of the district court is
                                                                       AFFIRMED.




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