Luis Builes v. Warden Moshannon Valley Correc

Filing

NOT PRECEDENTIAL PER CURIAM OPINION, granting Appellee's motion to summarily affirm the judgment of the District Court. See 3d Cir. LAR 27.4; I.O.P. 10.6. Coram: AMBRO, RESTREPO and NYGAARD, Circuit Judges. Total Pages: 6. BLD-038

Case: 17-2639

Document: 003112772524

Page: 1

BLD-038

Date Filed: 11/07/2017

NOT PRECEDENTIAL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.

Case: 17-2639

Document: 003112772524

Page: 2

Date Filed: 11/07/2017

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.
2

Case: 17-2639

Document: 003112772524

Page: 3

Date Filed: 11/07/2017

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

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).
2

3

Case: 17-2639

Document: 003112772524

Page: 4

Date Filed: 11/07/2017

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

Case: 17-2639

Document: 003112772524

Page: 5

Date Filed: 11/07/2017

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 GallegosHernandez, 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).

Case: 17-2639

Document: 003112772524

Page: 6

Date Filed: 11/07/2017

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.

6