What It’s Like Litigating Against the BOP in a First Step Act Case

A few years ago, my parents bought my son a piñata for his birthday. We hung it up, blindfolded him and watched as he swung a plastic baseball bat as hard as he could. Once that blindfold went on, though, my son had no idea where the piñata really was. Sometimes, we’d raise it all the way to the ceiling. Other times, we’d drop it all the way to the floor. But, even as it went up and down, my son kept swinging as hard as he could in the middle. He obviously had no idea it moved after he put the blindfold on. That’s kind of what it’s like to litigate a First Step Act case against the BOP.

Every month, federal courts issue dozens of decisions in cases involving disputes over First Step Act time credits. Someone in BOP custody (usually in a BOP facility or on home confinement) files a habeas petition. At that point, they’ll believe the BOP refused to apply their First Step Act time credits for one reason. But when the BOP responds, it will justify their refusal to apply the time credits with a different reason. And if, for some reason, that new reason fails in court, the BOP will come up with a third, fourth and maybe even a fifth reason when it needs to.

In this sense, the people filing these petitions look just like my blindfolded toddler did swinging at a piñata. Maybe they can guess where the proverbial piñata is for their first and second swings. But if they don’t guess right for the third, fourth and fifth swings, a federal judge might deny their petition before they ever get the chance to swing again.

The BOP originally refused to apply Mr. Yufenyuy’s time credits because he was subject to an ICE detainer.

Just a few days ago, Austen Yufenyuy was a federal prisoner at the Federal Correctional Institution in Berlin, New Hampshire. He was there serving a sentence for money laundering. Approximately a year and a half into his sentence, Mr. Yufenyuy filed a habeas petition. In it, he asked the court “to order the B.O.P. to apply his Earned Time Credit towards early release.” At the time, he had “a projected release date of 12/25/2023” with good time credits. But if the BOP applied his First Step Act time credits, Mr. Yufenyuy claimed, he would be “release[d] by the time of the writing of this motion.”

As it almost always does in cases like this, the BOP moved for summary judgment. According to the BOP, Mr. Yufenyuy was “ineligible for the application of First Step Act … time credits due to his U.S. Immigration and Customs (‘ICE’) detainer.” “The BOP’s interpretation of the pertinent statutes and regulations prohibit the application of FSA time credits for prisoners with ICE detainers, as does the BOP’s recently released Program Statement,” the BOP claimed. “While Yufenyuy disagrees with the BOP’s interpretation of the FSA, the BOP is entitled to Skidmore deference on this issue…”

The term “Skidmore deference,” at least in theory, comes from Skidmore v. Swift & Co., a 1944 U.S. Supreme Court case. The term itself comes from the U.S. Supreme Court’s decision more than half a century later in Christensen v. Harris County. And, in a general sense, it means that judges defer to a federal agency’s interpretation of a statute. In Yufenyuy v. Warden, that statute was 18 U.S.C. § 3632(d)(4)(E)(i).

A federal prisoner can’t earn time credits if he or she “is the subject of a final order of removal….”

18 U.S.C. § 3632(d)(4)(E)(i) states, in full, as follows: “A prisoner is ineligible to apply time credits [toward prerelease custody or supervised release] if the prisoner is the subject of a final order of removal under any provision of the immigration laws (as such term is defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17)).” To me (and I’ll let you come to your own conclusions), this statute is pretty darn clear. If you’re the subject of a final order of removal, you can’t get First Step Act time credits.

But Mr. Yufenyuy wasn’t the subject of a final order of removal. His ICE detainer was based on “[b]iometric confirmation of the alien’s identity and a records check of federal databases….” I don’t know enough about immigration law to weigh in on whether Congress made the right call when it differentiated “a final order removal” from other ICE detainers in 18 U.S.C. § 3632(d)(4)(E)(i). But I’m confident enough in my reading experience to say that Congress clearly said one and not the other.

Despite 18 U.S.C. § 3632(d)(4)(E)(i)’s clear language, the BOP argued that “a final order of removal” wasn’t required.

In the BOP’s own words, Mr. Yufenyuy “recognize[d] that the statute excludes inmates with final orders of removal from applying FSA time credits” but “argue[d] that because he is not the subject of a final order of removal, his FSA time credits should be applied.” To me, this argument seems like a good one. That’s especially true in light of the clear language in 18 U.S.C. § 3632(d)(4)(E)(i). For the BOP, however, the clear language in 18 U.S.C. § 3632(d)(4)(E)(i) was no obstacle.

“Although the statutory language does not specifically mention inmates with detainers as excluded from applying FSA time credits to their sentence,” the BOP claimed, “the BOP can properly interpret and provide guidance for their application.” And when it came to 18 U.S.C. § 3632(d)(4)(E)(i), “the BOP interpreted the statute to exclude inmates with ICE detainers from applying FSA time credits.”

And, relying on its purported “expertness” in this area, the BOP argued that courts should defer to that interpretation of 18 U.S.C. § 3632(d)(4)(E)(i): “Because the BOP’s interpretation is soundly based on its ‘expertness,’ is consistent with other practices and policies, and does not offend a constitutional right, the BOP’s interpretation of the statute is valid and should be given deference.” In other words, it said, “the BOP has properly excluded prisoners with detainers from applying FSA time credits.”

Incredibly, the BOP stuck with this argument. In fact, it did so even though it expressly conceded that Mr. Yufenyuy was not “the subject of a final order of removal under any provision of the immigration laws” as required by 18 U.S.C. § 3632(d)(4)(E)(i). Instead, the BOP simply predicted that he “will likely be subject to a final order of removal” in the future.

When its interpretation of 18 U.S.C. § 3632(d)(4)(E)(i) didn’t pass muster, the BOP turned to another creative argument instead.

Perhaps unsurprisingly, the BOP’s argument that 18 U.S.C. § 3632(d)(4)(E)(i) did not require “a final order of removal” didn’t succeed. U.S. Magistrate Judge Andrea K. Johnstone issued an order in the middle of the case, advising Mr. Yufenyuy and the BOP that she “ha[d] recently issued a Report and Recommendation … in another case in this Court, finding that a § 2241 petitioner in similar circumstances was entitled to the application of his FSA earned time credits and immediate release from BOP custody.” Because that “analysis … appeare[d] to be equally applicable in this case,” Judge Johnstone ordered the BOP “to show cause as to why the petition … should not be granted and why the petitioner should not be immediately released from BOP custody.”

Undeterred by that order, the BOP came up with a new argument to justify its refusal to apply the First Step Act time credits Mr. Yufenyuy had earned during his time in BOP custody. This time, the BOP argued that Mr. Yufenyuy hadn’t earned enough time credits to be entitled to an immediate release. The BOP acknowledged that Mr. Yufenyuy began serving his sentence on June 9, 2021. But, the BOP said, he didn’t arrive at his “BOP designed facility” — and, therefore, couldn’t start earning First Step Act time credits — until Nov. 24, 2021.”

Mr. Yufenyuy didn’t want to lose six months of First Step Act time credits just because the BOP took so long to move him.

Mr. Yufenyuy was unsurprisingly not a fan of the BOP’s argument. It was undisputed that he pleaded guilty, was sentenced and was taken into BOP custody on June 9, 2021. Under federal law, that is when his sentence “commence[d].” Specifically, 18 U.S.C. § 3585(a) states that “[a] sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.” Because federal regulations make prisoners eligible for First Step Act time credits “after the inmate’s term of imprisonment commences,” Mr. Yufenyuy argued, that is when he began earning those time credits.

Not so, responded the BOP. The BOP, of course, conceded that Mr. Yufenyuy started serving his sentence on June 9, 2021. Yet it argued that he was not eligible for First Step Act time credits until Nov. 24, 2021, almost six months later. This six-month delay was based on how long it took the BOP to move Mr. Yufenyuy to his “BOP designated facility.”

Immediately after sentencing, the BOP placed him in the facility he was in while awaiting his plea and sentencing hearing. Over the next few months, the BOP moved him to facilities in Maryland and Oklahoma. Finally, almost six months later, the BOP moved him to a private facility in Texas. According to the BOP, this was Mr. Yufenyuy’s “BOP designated facility.” For the purpose of First Step Act time credits, the BOP argued, Mr. Yufenyuy’s sentence didn’t actually commence until he “arrive[d] at the designated BOP facility.”

A federal judge squarely rejected this argument and ordered that Mr. Yufenyuy “be released from BOP custody upon time served.”

Judge Johnstone squarely rejected the BOP’s argument in this regard. To begin her analysis, she turned to the text of 18 U.S.C. § 3585(a) and 18 U.S.C. § 3632(d)(4)(A)-(B). Specifically, with respect to 18 U.S.C. § 3632(d)(4)(A)-(B), Judge Johnstone recognized that “those provisions make it clear that prisoners ‘shall’ earn time credits, at the statutory rate, for all qualified programs in which they successfully participate, except for the programs in which they participated while imprisoned either before the FSA was enacted, or, in detention before the date when their ‘sentence commence[d] under 3585(a).’ “

Then Judge Johnstone pointed out that the BOP’s interpretation of when a sentence “commences” “does not mirror the language in the FSA defining when a prisoner can begin earning FSA time credits.” “Rather,” she said, “that [interpretation] specifies a different date as the date when a prisoner can begin to earn FSA time credits, namely, the date the prisoner ultimately arrives at his BOP-designated facility where his sentence will be served.” Because there was “no gap in the statute, with respect to when a prisoner is ineligible to earn FSA time credits,” Judge Johnstone concluded that she “must give effect to the statutory text.”

“Here, the date established by the plain language of the FSA upon which Mr. Yufenyuy was entitled to begin earning FSA time credits is June 9, 2021,” Judge Johnstone concluded. Therefore, “Mr. Yufenyuy is allowed to earn FSA time credits beginning on June 9, 2021.” And with those time credits, no one disputed that Mr. Yufenyuy was “entitled to immediate release from BOP custody.” So, that’s what Judge Johnstone ordered: “The respondent is directed to release Mr. Yufenyuy from BOP custody upon time served.”

For years, Congress and the U.S. Supreme Court blamed federal prisoners for wasting judicial resources with habeas petitions. What about the BOP?

In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act, known more commonly as “AEDPA.” As the U.S. Supreme Court has since explained, AEDPA’s purposes included things like “reducing delay, conserving judicial resources, and promoting finality….” The Supreme Court might have said it in a more eloquent way. But the reality is that AEDPA was designed to stop prisoners from wasting judicial resources with baseless court filings.

Perhaps those efforts are good ones. (Admittedly, I question why they were made in legislation passed in response to the Oklahoma City bombing, though.) But, at least in Yufenyuy v. Warden, it wasn’t the prisoner who wasted judicial resources with a habeas petition. It was the BOP.

18 U.S.C. § 3632(d)(4)(E)(i) made “[a] prisoner ineligible to apply time credits … if the prisoner is the subject of a final order of removal….” The BOP’s position ignored that clear language. 18 U.S.C. § 3632(d)(4)(A)-(B) required that “[a] prisoner … shall earn time credits” for his or her participation in evidence-based recidivism reduction programming or productive activities except for participation “prior to the date of enactment of” the First Step Act or “during official detention prior to the date that the prisoner’s sentence commences under section 3585(a).” The BOP’s position ignored that clear language, too.

But I’m guessing Congress and the U.S. Supreme Court won’t respond to the BOP’s baseless positions like it did with AEDPA. And if they don’t, the only thing stopping the BOP from moving the piñata is a judge like the one in Yufenyuy v. Warden.