                                                                             FILED
                            NOT FOR PUBLICATION
                                                                              NOV 21 2016
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CECILIO CORTEZ LOPEZ,                             No.    15-16453

              Petitioner-Appellant,               D.C. No.
                                                  1:13-cv-01207-AWI-MJS
 v.

MICHAEL L. BENOV,                                 MEMORANDUM*

              Respondent-Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Anthony W. Ishii, District Judge, Presiding

                          Submitted November 16, 2016**
                             San Francisco, California

Before: GOULD, CLIFTON, and WATFORD, Circuit Judges.

      Cecilio Cortez Lopez, a federal prisoner at Taft Correctional Institution

(TCI), appeals the district court’s denial of his petition for a writ of habeas corpus

under 28 U.S.C. § 2241. Lopez seeks good conduct time (GCT) for a time period


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
in which he failed to make satisfactory progress towards a GED. We have

jurisdiction under 28 U.S.C. § 1291. We review the district court’s denial of a

habeas petition under 28 U.S.C. § 2241 de novo. Bowen v. Hood, 202 F.3d 1211,

1218 (9th Cir. 2000). We affirm the district court.

      Congress established two programs regarding literacy and GED attainment

for federal prisoners. See 18 U.S.C. § 3624. Section 3624(f) directs the Bureau of

Prisons (BOP) to create a mandatory literacy program, and § 3624(b) establishes

an incentive system for prisoners to continue their education and gain their GEDs.

Under § 3624(f), an inmate without a high school diploma or GED is required to

participate in a mandatory literacy program “for a minimum of 240 instructional

hours or until a GED is achieved, whichever occurs first.” 28 C.F.R. § 544.70.

“Sentenced deportable aliens” are not required to participate in the mandatory

literacy program. Id. § 544.71(a)(3). Under § 3624(b), inmates can qualify for

GCT by continuing their education. An inmate receives 54 days of GCT if he or

she “has earned, or is making satisfactory progress toward earning, a high school

diploma or an equivalent degree,” 18 U.S.C. § 3624(b)(1), and only gets 42 days of

GCT if he or she has not earned or is not making satisfactory progress toward

earning a GED. 28 C.F.R. § 523.20(c). An alien who is subject to “a final order of




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removal, deportation, or exclusion” need not make satisfactory progress toward

earning a GED to be eligible for the maximum possible GCT. Id. § 523.20(d).

      Lopez made unsatisfactory progress towards attaining his GED between

November 27, 2007 and September 23, 2011. As a result, Lopez received 42 days

of GCT instead of 54 days of GCT each year—losing 48 total days of GCT. The

magistrate judge recommended that Lopez’s habeas corpus petition be denied. The

district court adopted this recommendation and denied the petition.

      Lopez makes two arguments on appeal. He first argues that TCI employees

were not authorized to determine his status in the GED program because, as

employees of a private correctional institution, they were not BOP staff. The BOP

regulations are ambiguous about who can decide whether an inmate’s progress is

satisfactory, but BOP guidance documents instruct that education staff or the

education department at each institution make this determination. Compare

28 C.F.R. § 544.73 with BOP Program Statement 5350.28 and BOP Program

Statement 5884.03. In our view, the BOP’s interpretations of its regulations are

neither plainly erroneous nor inconsistent with the regulations. Accordingly, these

interpretations of its regulations are entitled to deference. See Auer v. Robbins, 519

U.S. 452, 461 (1997). Under valid BOP guidance, TCI employees are authorized

to determine Lopez’s education status, and, correspondingly, his GCT eligibility.


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       Lopez argues second that he should be awarded GCT in full because he is

exempt from participating in the literacy program as a sentenced deportable alien.

Although sentenced deportable aliens are not required to participate in the literacy

program, 28 C.F.R. § 544.71(a)(3), they still must make satisfactory progress

towards earning their GEDs to earn the maximum 54 days of GCT,

18 U.S.C. § 3624(b). It is only an alien subject to “a final order of removal,

deportation, or exclusion” who can earn the full 54 days of GCT without making

satisfactory progress. 28 C.F.R. § 523.20(d). While he was a sentenced deportable

alien, Lopez was not subject to a final order of removal, deportation, or exclusion.

He is not eligible to accrue the maximum incentive time. See id. §§ 523.20(c)(2),

(d).

       AFFIRMED.




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