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May 4, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 149 (down from 152) Currently positive-testing staff: 158 (down from 176) Recovered inmates currently in the BOP: 52,175 (down from 52,287) Recovered staff: 12,602 (up from 12,584)


Institutions with the largest number of currently positive-testing inmates:

Lompoc FCI: 39 (unchanged)

Allenwood USP: 28 (unchanged)

Victorville Medium II FCI: 7 (down from 9)

Institutions with the largest number of currently positive-testing staff:

Central Office HQ: 18 (down from 36)

Rochester FMC: 18 (unchanged)

Victorville Medium I FCI: 13 (unchanged)

System-wide testing results: Presently, BOP has 137,835 federal inmates in BOP-managed institutions and 13,295 in community-based facilities. Today's stats: Completed tests: 128,740 (unchanged) Positive tests: 55,388 (unchanged)


Total vaccine doses administered: 315,182 (up from 315,015)


News Note: Court requires issue exhaustion and therefore does not consider unexhausted COVID-related "hard time" issue...


In U.S. v. AMIR BAKHTIARI, 2022 WL 1289050 (N.D. Cal. Apr. 30, 2022) (Aslup, J.), the court fleshes out the arguments on issue exhaustion, concluding it is applicable, and therefore does not consider whether serving time during COVID makes his time “harder,” explaining: "As for the legal issues, supplemental briefing has litigated whether issue exhaustion is required on motions for compassionate release. The answer is yes. Both sides appear to agree that the statute is silent on whether issue exhaustion is required, that our court of appeals has not spoken directly to this question, and that other courts are divided. Our court of appeals has, however, held that a movant must exhaust BOP remedies with each subsequent motion for compassionate release. United States v. Keller, 2 F.4th 1278, 1282 (9th Cir. 2021). At least one district court has read Keller to require “issue exhaustion.” United States v. Narez, 2021 WL 5566787, at *3–4 (E.D. Cal. Nov. 29, 2021) (Judge Anthony W. Ishii). To be sure, other decisions have found issue exhaustion is not required because the process of requesting release from the BOP is non-adversarial. A key decision on point, however, sounds in the Supplemental Security Income context. The Supreme Court did not require issue exhaustion, reasoning that benefits review is nonadversarial and “[t]he Council, not the claimant, has primary responsibility for identifying and developing the issues.” Sims v. Apfel, 530 U.S. 103, 109–10, 112 (2000). No language in the statute or authorities cited by either side suggests the BOP has a similar affirmative obligation. This renders the “nonadversarial” argument against issue exhaustion less compelling in the BOP context. Courts have also gone beyond the grounds raised to the BOP because issue exhaustion is either not required by the statute or, if implied, it is a waivable requirement not a jurisdictional bar. See United States v. Torres, 464 F. Supp. 3d 651, 655 (S.D.N.Y. 2020); Miller v. United States, 453 F. Supp. 3d 1062, 1065 (E.D. Mich. 2020). It is also true that Congress knew how to write an issue exhaustion requirement when it wanted to. See, e.g., 29 U.S.C. § 160(e) (NLRB issue exhaustion). But in Zhong v. United States Department of Justice, the Court of Appeals for the Second Circuit pointed out that while a federal immigration statute did not require issue exhaustion as a jurisdictional matter, it did require issue exhaustion as “a statutory matter.” 480 F.3d 104, 121 (2d Cir. 2007) (emphasis in the original). On balance, the arguments for issue exhaustion are more compelling. Assuming, arguendo, that the failure to exhaust poses no jurisdictional bar, this order declines to waive the requirement. Consequently, this order may not consider as an extraordinary and compelling circumstance for purposes of triggering Section 3582(c)(1)(A) any issue Offender Bakhtiari raises herein that he did not first raise to the BOP. In his request to the BOP, Offender Bakhtiari mentioned the COVID-19 lockdown and stated,


I would like to request for [sic] compassionate release based on my medical condition disability (California Permanente Disability) Asthma and Type II Diabetes, which listed [sic] on my medical record. I have two U.S born childrens [sic] living in Dallas Texas [sic]. I am also holding legal status and/have no detainer as I have immigration deportation waiver and there is no deportation to Iran”

(Dkt. No. 186-1). The BOP denied his request. It cited his lack of ICE detainer but status as an immigrant without legal status. The latter condition, according to the BOP, rendered him “ineligible” for compassionate release. The rejection also noted his “low” security risk, his lack of offense history, his age (54), and health status (“SCRN 1 Healthy Simple Care”). The BOP concluded: “Given the above factors, it does not appear that Bakhtiari, Amir is eligible for compassionate release...” (Dkt. No. 186-2). The district court may evaluate those issues. Both sides now appear to agree that the sole issue he did not raise to the BOP but now raises is service of “hard time,” including frequent lock downs, due to the pandemic. The defense also characterizes this as psychological stress due to fear of contracting COVID-19 in the congregate environment (Dkt. No. 176 at 5). This order does not weigh “hard time” as an “extraordinary and compelling reason” for release. Even if he had preserved the issue, however, the undersigned would not be inclined to reduce his term from December 2022 to May 2022.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified no new inmate fatalities, leaving the total at 294. Eleven of the inmates died while on home confinement. Staff deaths remain at 7



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