Understanding the First Step Act
When Congress passed the First Step Act in 2018, it marked a bipartisan effort to reform the federal criminal justice system by promoting rehabilitation and reducing recidivism. A key feature of the law was the creation of a new system of “earned time credits.” Under this system, eligible federal inmates can earn ten to fifteen days of credit for every thirty days of successful participation in approved educational or vocational programs. Once an inmate accrues enough credits, those credits must be applied toward either prerelease custody, such as a halfway house or home confinement, or early transfer to supervised release.
The language of the statute is direct and mandatory. Section 3632(d)(4)(C) of Title 18 of the United States Code states that the Bureau of Prisons (BOP) “shall transfer eligible prisoners… into prerelease custody or supervised release.” Congress did not leave that decision to the Bureau’s discretion. It identified a single immigration-related limitation: individuals who are subject to a ‘final order of removal’ are not eligible to apply their credits. A detainer from Immigration and Customs Enforcement—essentially a notice that immigration authorities intend to review an individual’s case—is not a final removal order.
By design, the First Step Act applies equally to all inmates who meet its conditions, regardless of citizenship. Yet in practice, the BOP has interpreted the law in ways that have disproportionately limited its benefits for non-U.S. citizens.
The Act’s Application to Non-U.S. Citizens
In early 2025, the BOP issued two internal memoranda that dramatically changed how the First Step Act is applied to individuals with immigration detainers. The first, dated January 30, 2025, instructed prison officials to cancel any pending prerelease placements for non-citizens with active detainers. The memo allowed up to 365 days of credits to be used for early supervised release but barred the use of additional credits for home confinement or halfway house placement. Again, this was a carve out based on an internal directive, most likely to conserve limited halfway house capacity for use by US citizens. A follow-up memorandum issued on April 8, 2025 reaffirmed this position and required the redesignation of all non-citizens with detainers back to secure institutions, except where a court order or settlement required otherwise.
The result of these memoranda is that hundreds of inmates who had already earned credits—and in some cases had already been released to the community—were returned to custody solely because they were not U.S. citizens. This new policy has become the focus of multiple lawsuits across the country. In each, courts have been asked to decide whether the BOP has the authority to deny prerelease placement to inmates who have earned sufficient credits under the statute.
The Case of Mr. Alqsous
Sari Alqsous is one of those inmates. A lawful permanent resident of the United States, he has been serving a federal sentence at FCI Oxford in Wisconsin. Over the course of his incarceration, he has participated extensively in programming and maintained a spotless disciplinary record. By the Bureau’s own calculations, he has earned enough First Step Act credits to qualify for home confinement.
Despite his eligibility, the BOP has refused to apply his credits toward prerelease custody because of an ICE detainer that was lodged in 2019. In his habeas petition filed in the Western District of Wisconsin (Case No.: 3:25-cv-00722), Alqsous argues that this refusal violates the First Step Act, the Fifth Amendment’s Due Process Clause, and the Equal Protection component of that clause. He points out that Congress intentionally excluded only those with final removal orders, not individuals with pending detainers. He also argues that the Bureau’s internal memoranda effectively rewrite the statute and unlawfully deprive him of rights created by Congress.
Alqsous seeks an order directing the Bureau to apply his earned credits, transfer him to community custody, and declare that the 2025 memoranda are unlawful. His case mirrors several others where courts have already ruled in favor of inmates who were denied prerelease placement under similar circumstances. If successful, Alqsous would be eligible to be on home confinement by January 2026.
The Federal Court Decisions Supporting Alqsous Claim
Other inmates who were similarly situated have prevailed in federal court. In Williams v. FCI Berlin, decided in August 2025, a federal court in New Hampshire granted Everett Williams’s habeas petition and ordered his immediate placement in prerelease custody. Like Alqsous, Williams was a lawful permanent resident who had been released to a halfway house before being sent back to prison under the January 2025 memo. The court held that the BOP had no discretion to disregard the statute’s command and could not rely solely on an immigration detainer to deny prerelease placement. It emphasized that the First Step Act’s language was mandatory and that nothing in the law authorizes the Bureau to create additional exclusions not written by Congress. BOP applied all time credits toward Williams’ placement in prerelease custody a halfway house in Miami, FL that monitors him on home confinement. The BOP did not appeal the decision.
In Adepoju v. Scales, a court in the Eastern District of Virginia (Case No.: 3:25-cv-245) reached the same conclusion. Adepoju, another lawful permanent resident, was rearrested after being released to a residential reentry center. The court described the Bureau’s actions as “plainly unconstitutional” and “ultra vires”—beyond its lawful authority. It found that the First Step Act’s mandatory language created a liberty interest and that sending Adepoju back to prison without notice or explanation violated due process.
In Mohammed v. Engleman, decided by a federal court in Central District of California (Case No.: 2:25-cv-01011), the court again rejected the BOP’s detainer policy and ordered that the petitioner be placed in community custody. The court found that the Bureau’s interpretation of the statute was inconsistent with its text and purpose.
Together, these cases form a growing judicial consensus that the BOP’s categorical exclusion policy violates the statute.
What These Cases Mean for Alqsous and Others
The collective weight of these decisions underscores a clear point: the BOP cannot ignore the plain words of the law. Congress mandated that earned time credits be applied to prerelease custody or supervised release, and it specified exactly who is ineligible. Courts across the country have recognized that the Bureau’s internal policies cannot override that statutory command, yet that internal policy is driving the placement of non-U.S. citizen inmates back into the institution unless they bring a civil lawsuit.
For Alqsous, these rulings provide strong precedent. His petition argues that he is being unlawfully detained months after he should have been transferred to home confinement. The courts in Williams, Adepoju, and Mohammed have already determined that such detention is inconsistent with the First Step Act and violates fundamental principles of due process. In a recent response to Alqsous, the BOP maintains that it retains full authority to decide whether and when to transfer an inmate to prerelease custody, even if that inmate has earned sufficient credits. It argues that this policy is consistent with the law’s intent and necessary for public safety and institutional management. In essence, the BOP’s position is that the memoranda simply clarify how the First Step Act operates for inmates with active detainers, reaffirming its discretion to restrict prerelease placements when immigration issues remain unresolved.
A Growing Legal and Human Question
At its heart, the issue raised by Alqsous’s petition, and others, is about fairness and fidelity to the rule of law. The First Step Act was designed to reward rehabilitation and give people a real opportunity to return to their communities sooner. Beyond, that, men and women would rather, if they have earned the right, spend time in home confinement rather than prison. When internal policies contradict that mandate, the courts have stepped in to ensure that the law—not agency preference—governs.
As more cases reach federal courts, the legal landscape continues to evolve. For now, the trend is unmistakable: judges are siding with the statute’s plain meaning and with inmates like Alqsous, who have done everything the law asked of them and now seek only what the law promises—an earned chance to rejoin society. It is unfortunate that finding relief for what Courts are determining as a civil violation is not being corrected by the BOP when their own internal directives are being noted as violating the law. Now, thousands of inmates, who could be placed on home confinement and have their movements tracked, must spend months or years in overcrowded prisons.
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