Inmate loses challenge to immigration rule

Builes claimed discrimination since he wasn’t allowed in pre-release programs

A federal appeals court has upheld a ruling that barring immigrants facing deportation retainers from prison pre-release programs is constitutional.

Luis Builes, an immigrant from Colombia housed at the Moshannon Valley Correctional Center near Philipsburg, filed a federal lawsuit earlier this year because he was not permitted to participate in pre-release prison programs such as a residential drug treatment or halfway house placement, which he claimed violated his right to equal treatment under the law.

U.S. District Judge Kim R. Gibson, based on a recommendation from Magistrate Judge Lisa Pupo Lenihan, dismissed the lawsuit in July, explaining that while there may be different rules for inmates who are slated for deportation, as Builes maintains, there is a “rational basis” for such rules.

On Wednesday, Gibson’s ruling was upheld by a three-judge panel of the 3rd Circuit Court of Appeals in Philadelphia.

“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 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 Immigration and Customs Enforcement detainers against them and those who do not,” stated Judges Thomas L. Ambro, L. Felipe Restrepo and Richard L. Nygaard.

The U.S. District Court in Johnstown has faced a series of lawsuits this year from inmates under detainers from ICE who are being housed at Moshannon Valley, the Federal Correctional Institution at Loretto and the Cambria County Prison.

Many of those inmates, who are in prison for committing federal crimes, including illegal entry into the United States, are fighting deportation because they fear retribution if returned to their native countries.

Several lawsuits have challenged their detention for a year or more awaiting decisions by the Immigration Court in York.

Builes’ challenge is different. He complains he is not being granted the same rights as other sentenced inmates who are drawing close to the end of their terms behind bars.

He was sentenced in 2006 by the U.S. District Court in Boston to serve 20 years in prison as the result of federal charges for conspiracy to distribute cocaine.

Builes is serving his sentence at Moshannon Valley, a private prison used to house inmates who are facing deportation. But as seen by the many recent lawsuits, deportation proceedings can take years .

Meanwhile he is barred from participating in programs offered to the general inmate population.

They include drug treatment, a camp program, detention in a halfway house, home detention or a transfer to a prison near to his family.

“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 14th Amendments,” the judges stated.

They determined, however, that Builes was not facing discrimination due to his status as an alien.

He was facing different rules because he had an ICE detainer against him.

There is a “legitimate government interest” to exclude ICE detainees from pre-release programs — for instance, to reduce the risk of flight — the 3rd Circuit opinion stated.

Excluding ICE detainees from community-based treatment “is at least rationally related to the Bureau of Prison’s legitimate interest in preventing prisoners from fleeing detainers while participating in community treatment programs,” according to the appeals court explanation.

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