United States District Court, S.D. Mississippi, Western Division
STARRETT UNITED STATES DISTRICT JUDGE.
matter is before the Court sua sponte for
consideration of dismissal. Petitioner Osvaldo Falcon, a
federal inmate incarcerated at the Adams County Correctional
Center (ACCC), Washington, Mississippi, filed this petition
for habeas corpus relief pursuant to 28 U.S.C. §
2241. As directed by the Court's Order ,
Petitioner filed a Response . After reviewing the Petition
 and Petitioner's Response , the Court has come to
the following conclusions.
was sentenced on October 27, 2016, in the United States
District Court for the Southern District of Florida in
United States v. Falcon, No. 1:16-cr-20513 (S. D.
Fla. Oct. 27, 2016). Pet.  at p.1. Petitioner complains
that because he is an alien with a detainer issued for him by
the Bureau of Immigration and Customs Enforcement (ICE) the
Bureau of Prisons (BOP) has classified Petitioner with a
Public Safety Factor (PSF) of “Deportable Alien.”
Id. at 13. As a result of this PSF classification,
BOP is denying Petitioner the opportunity to participate in
the Residential Drug Abuse Program (RDAP) which could result
in a one-year sentence reduction, denying him the ability to
participate in the Residential Reentry Center (RRC) also
known as a “halfway house, ” denying him a
transfer to a facility closer to his family, and denying him
placement in a minimum security prison also known as a
“camp.” Id. at 11. Petitioner complains
that the action of the BOP violates his constitutional rights
of equal protection and due process. Id. at pp.
10-13. Finally, Petitioner complains about the exercise yard
being “too small as compared to other federal prison
yards.” Id. at 12.
has filed the instant civil action as a request for habeas
relief pursuant to 28 U.S.C. § 2241. A petitioner may
attack the manner in which his sentence is being executed in
the district court with jurisdiction over his custodian
pursuant to 28 U.S.C. § 2241. United States v.
Cleto, 956 F.2d 83, 84 (5th Cir.1992). Petitioner's
argument that he is being deprived benefits because of his
PSF classification as a “Deportable Alien, ”
specifically that he is not allowed to participate in certain
BOP programs which would reduce his sentence, is properly
before the Court as a § 2241 petition. See
Gallegos-Hernandez v. United States, 688 F.3d 190, 194
(5th Cir. 2012) (citing Cervante v. United States,
402 F. App'x 886 (5th Cir. 2010). And because the
Petitioner is housed in a facility over which this Court
exercises jurisdiction when he filed the petition,
jurisdiction exists to review his claim concerning the
execution of his sentence. See Lee v. Wetzel, 244
F.3d 370, 375 n.5 (5th Cir. 2001); see also United States
v. Gabor, 905 F.2d 76, 78 (5th Cir. 1990) (holding that,
“[t]o entertain a § 2241 habeas petition, the
district court must, upon the filing of the
petition, have jurisdiction over the prisoner or his
custodian”) (emphasis added).
extent that Petitioner is asserting a claim concerning the
conditions of his confinement, i.e., the size of the
exercise yard, such a claim is not properly before the Court
as a habeas request and will not be addressed in this
Opinion. See Pierre v. United States, 525 F.2d 933,
935 (5th Cir. 1976) (holding that “habeas is not
available to review questions unrelated to the cause of
detention”). The “sole function” for a
habeas action “is to grant relief from unlawful
imprisonment or custody and it cannot be used properly for
any other purpose.” Id. at 935-36.
a federal prisoner may proceed with a § 2241 habeas
petition, he is required to exhaust all available
administrative remedies. See Rourke v. Thompson, 11
F.3d 47, 49 (5th Cir. 1993). The Fifth Circuit has held that
a challenge to the constitutionality of the BOP's
regulation excluding prisoners with ICE detainers from
participating in rehabilitation programs and halfway house
placement is not required to exhaust administrative remedies
before pursuing a request for habeas relief. See
Gallegos-Hernandez, 688 F.3d at 194 (citing Taylor
v. United States Treasury Dep't, 127 F.3d 470, 477
(5th Cir. 1997). Under the circumstances of the instant
petition, Petitioner is not required to exhaust his available
administrative remedies and the Court will consider the
merits of Petitioner's habeas claims.
United States Court of Appeals for the Fifth Circuit has held
that the BOP's exclusion of an alien prisoner with a ICE
detainer from participating in early release programs and
community-based confinement does not violate the Equal
Protection Clause of the Constitution. See
Gallegos-Hernandez, 688 F.3d at 195-96. Additionally,
the Court notes that Petitioner does not have a liberty
interest in being housed in a particular facility, including
a facility that provides drug rehabilitation programs.
See Id. at 195. Furthermore, Petitioner's
argument that because of his Cuban citizenship he cannot be
deported does not give rise to a constitutional claim.
See e.g., Perez v. Lappin, 672 F.Supp.2d 35 (D.D.C.
2009) (holding that a “Deportable Alien PSF as applied
to a  Cuban did not violate Petitioner's constitutional
rights or violate the Administrative Procedures Act”);
see also, Duong v. Martin, 2014 WL 1665012, at *2
(S.D.Miss. April 25, 2014) (finding that a PSF classification
of “Deportable Alien” does not implicate any
constitutional interest). Petitioner therefore fails to
present a claim upon which habeas relief can be granted.
Court has determined that the Petitioner's habeas claims
are dismissed with prejudice and to the extent Petitioner is
asserting a claim concerning the conditions of confinement,
such a claim is dismissed without prejudice.
Judgment in accordance with this Memorandum Opinion and Order
will be entered.