UNITED STATES DISTRICT COURT                           
                    DISTRICT OF MINNESOTA                               

Sompheth Phoummany,                 Case No. 24-cv-3849 (KMM/LIB)       

              Petitioner,                                               

v.                               REPORT AND RECOMMENDATION              

United States of America,                                               

              Respondent.                                               


   This matter comes before the undersigned United States Magistrate Judge pursuant to a 
general assignment made in accordance with the provision of 

, and upon Sompheth 
Phoummany’s Petition for a writ of habeas corpus. [Docket No. 1].         
   Petitioner pleaded guilty in the United States District Court for the District of Alaska to 
conspiracy  to  distribute  a  controlled  substance  and  was  sentenced  to  a  90-month  term  of 
imprisonment.  See  United  States v.  Phoummany,  No.  3:22-cr-22  (2),  Sentencing  Judgment 
[Docket No. 109] (D. Alaska Nov. 29, 2022). Petitioner—who arrived in the United States several 
decades ago as a refugee from Laos—also has been ordered removed from the United States 
pursuant to a final order of removal. (See Petitioner’s Exs. [Docket No. 1-2] at 5). Petitioner 
contends that, if removed to Laos, he will be “subject to immediate incarceration and execution,” 
(Petition [Docket No. 1] at 7), and he asks this Court through the present petition for a writ of 
habeas corpus to vacate the final order of removal, see 

.         
   This matter is before the Court for review pursuant to Rule 4 of the Rules Governing 
Section 2254 Cases in the United States District Courts.1 This Court has conducted the required 

1 The habeas petition in this matter is not brought under 

, but the Rules Governing Section 2254 
Cases may nevertheless be applied to the petition. See Rule 1(b).         
review under Rule 4 and concludes that the Court lacks jurisdiction over the present habeas 
petition. Accordingly, this matter should be dismissed without prejudice. 
   With exceedingly narrow exceptions, federal district courts lack jurisdiction “to hear any 
cause or claim by or on behalf of any alien” challenging a final order of removal. 

(g). Instead, “a petition for review to the courts of appeal is the exclusive means of review 
of an administrative order of removal, deportation, or exclusion.” Tostado v. Carlson, 

 (8th Cir. 2007). In almost all cases, then, this Court is simply not the correct venue for 
a person subject to an order of removal to challenge the validity of that order of removal.2 
   The lone, relevant exception to this jurisdictional bar is provided under 

(e)(2):                                                               
   Judicial review of any determination made under section 1225(b)(1) of this title is 
   available in habeas corpus proceedings, but shall be limited to determinations of— 

        (A) whether the petitioner is an alien,                         

        (B) whether the petitioner was ordered removed under such section, 
        and                                                             

        (C) whether the petitioner can prove by a preponderance of the  
        evidence  that  the  petitioner  is  an  alien  lawfully  admitted  for 
        permanent residence, has been admitted as a refugee under section 
        1157 of this title, or has been granted asylum under section 1158 of 
        this title, such status not having been terminated, and is entitled to 
        such further inquiry as prescribed by the Attorney General pursuant 
        to section 1225(b)(1)(C) of this title.                         

   On its face, § 1252(e)(2)(C) would appear to permit this Court to review whether Petitioner 
“has been admitted as a refugee” or “has been granted asylum.” But § 1252(e)(2)(C) applies only 
to judicial review of determinations made under 

(b)(1), which in turn relates only 

2 Petitioner contends that this Court nevertheless has jurisdiction over the habeas petition pursuant to 8 U.S.C. 
§ 1105a(a)(10). That provision did provide that “federal habeas courts were . . . available to hear statutory and 
constitutional challenges to deportation (and exclusion) orders.” Zadvydas v. Davis, 

 (2001) 
(emphases removed). But that provision was repealed in 1996.              
to expedited decisions of review made by an immigration officer of an applicant for entry upon 
said applicant’s arrival at the borders of the United States. Section 1225(b)(1) does not relate to 
decisions made by an immigration judge. Petitioner’s order of removal was not effected through 
the summary process permitted in §1225(b)(1), and therefore § 1252(e)(2)(C) does not apply to 

this case.                                                                
   Petitioner tries one other maneuver to get the question of the validity of the final order of 
removal before this Court. Under the First Step Act of 2018, federal prisoners who participate in 
“evidence-based recidivism reduction programs” while in the custody of the Federal Bureau of 
Prisons may earn up to fifteen days per month in time credits (“FTCs”). 

(d). Up 
to one year’s worth of FTCs may be applied towards shortening the prisoner’s overall term of 
imprisonment. See 

(g)(3). Some prisoners, however, are ineligible to apply FTCs; 
these ineligible prisoners include those prisoners who are “subject of a final order of removal.” 

(d)(4)(E)(i). If Petitioner were not subject to a final order of removal, then he would 
be eligible to earn and apply FTCs to his sentence, thereby shortening that sentence. 

   The amount of time that Petitioner is required to spend in the custody of the Federal Bureau 
of Prisons is, to be sure, a proper subject of habeas review. But the FSA does not provide litigants 
with a backdoor method for challenging the validity of an order of removal. See 

(g) 
(depriving federal district courts of jurisdiction “notwithstanding any other provision of law”); 
Balleza v. King, No. 24-cv-160 (NEB/LIB), 

, at *2–3 (D. Minn. Aug. 9, 2024), 
report and recommendation adopted, 

 (D. Minn. Oct. 3, 2024). That Petitioner 
is subject to a facially valid order of removal defeats any entitlement he might otherwise have to 
FTCs. See, e.g., Balleza, 

, at *3. If Petitioner were not subject to a final order 
of removal, then his term of custody might be reduced. 

 But to attack that final order of removal 
and (if successful) thereby become entitled to the application of FTCs, Petitioner will have to go 
through a more appropriate procedural channel. See, e.g., 

 at *2–3. This Court simply lacks 
jurisdiction to decide whether Petitioner should have been made subject to a final order of removal. 
See, e.g., 

                                                            

   Accordingly, the present habeas petition should be denied without prejudice and this matter 
dismissed without prejudice.                                              
   Therefore, based on the foregoing, and on all of the files, records, and proceedings herein, 
IT IS HEREBY RECOMMENDED THAT:                                            
   1.  The petition for a writ of habeas corpus of petitioner Sompheth Phoummany, [Docket 
     No. 1], be DENIED without prejudice; and                           
   2.  This case be DISMISSED without prejudice.                        


Dated: October 24, 2024         s/Leo I. Brisbois                       
                                Hon. Leo I. Brisbois                    
                                United States Magistrate Judge          


                           NOTICE                                       

Filing Objections: This Report and Recommendation is not an order or judgment of the District 
Court and is therefore not appealable directly to the Eighth Circuit Court of Appeals. 

Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a magistrate 
judge’s proposed finding and recommendations within 14 days after being served a copy” of the 
Report and Recommendation. A party may respond to those objections within 14 days after being 
served a copy of the objections. See Local Rule 72.2(b)(2). All objections and responses must 
comply with the word or line limits set forth in Local Rule 72.2(c).      

                 UNITED STATES DISTRICT COURT                           
                    DISTRICT OF MINNESOTA                               

Sompheth Phoummany,                 Case No. 24-cv-3849 (KMM/LIB)       

              Petitioner,                                               

v.                               REPORT AND RECOMMENDATION              

United States of America,                                               

              Respondent.                                               


   This matter comes before the undersigned United States Magistrate Judge pursuant to a 
general assignment made in accordance with the provision of 

, and upon Sompheth 
Phoummany’s Petition for a writ of habeas corpus. [Docket No. 1].         
   Petitioner pleaded guilty in the United States District Court for the District of Alaska to 
conspiracy  to  distribute  a  controlled  substance  and  was  sentenced  to  a  90-month  term  of 
imprisonment.  See  United  States v.  Phoummany,  No.  3:22-cr-22  (2),  Sentencing  Judgment 
[Docket No. 109] (D. Alaska Nov. 29, 2022). Petitioner—who arrived in the United States several 
decades ago as a refugee from Laos—also has been ordered removed from the United States 
pursuant to a final order of removal. (See Petitioner’s Exs. [Docket No. 1-2] at 5). Petitioner 
contends that, if removed to Laos, he will be “subject to immediate incarceration and execution,” 
(Petition [Docket No. 1] at 7), and he asks this Court through the present petition for a writ of 
habeas corpus to vacate the final order of removal, see 

.         
   This matter is before the Court for review pursuant to Rule 4 of the Rules Governing 
Section 2254 Cases in the United States District Courts.1 This Court has conducted the required 

1 The habeas petition in this matter is not brought under 

, but the Rules Governing Section 2254 
Cases may nevertheless be applied to the petition. See Rule 1(b).         
review under Rule 4 and concludes that the Court lacks jurisdiction over the present habeas 
petition. Accordingly, this matter should be dismissed without prejudice. 
   With exceedingly narrow exceptions, federal district courts lack jurisdiction “to hear any 
cause or claim by or on behalf of any alien” challenging a final order of removal. 

(g). Instead, “a petition for review to the courts of appeal is the exclusive means of review 
of an administrative order of removal, deportation, or exclusion.” Tostado v. Carlson, 

 (8th Cir. 2007). In almost all cases, then, this Court is simply not the correct venue for 
a person subject to an order of removal to challenge the validity of that order of removal.2 
   The lone, relevant exception to this jurisdictional bar is provided under 

(e)(2):                                                               
   Judicial review of any determination made under section 1225(b)(1) of this title is 
   available in habeas corpus proceedings, but shall be limited to determinations of— 

        (A) whether the petitioner is an alien,                         

        (B) whether the petitioner was ordered removed under such section, 
        and                                                             

        (C) whether the petitioner can prove by a preponderance of the  
        evidence  that  the  petitioner  is  an  alien  lawfully  admitted  for 
        permanent residence, has been admitted as a refugee under section 
        1157 of this title, or has been granted asylum under section 1158 of 
        this title, such status not having been terminated, and is entitled to 
        such further inquiry as prescribed by the Attorney General pursuant 
        to section 1225(b)(1)(C) of this title.                         

   On its face, § 1252(e)(2)(C) would appear to permit this Court to review whether Petitioner 
“has been admitted as a refugee” or “has been granted asylum.” But § 1252(e)(2)(C) applies only 
to judicial review of determinations made under 

(b)(1), which in turn relates only 

2 Petitioner contends that this Court nevertheless has jurisdiction over the habeas petition pursuant to 8 U.S.C. 
§ 1105a(a)(10). That provision did provide that “federal habeas courts were . . . available to hear statutory and 
constitutional challenges to deportation (and exclusion) orders.” Zadvydas v. Davis, 

 (2001) 
(emphases removed). But that provision was repealed in 1996.              
to expedited decisions of review made by an immigration officer of an applicant for entry upon 
said applicant’s arrival at the borders of the United States. Section 1225(b)(1) does not relate to 
decisions made by an immigration judge. Petitioner’s order of removal was not effected through 
the summary process permitted in §1225(b)(1), and therefore § 1252(e)(2)(C) does not apply to 

this case.                                                                
   Petitioner tries one other maneuver to get the question of the validity of the final order of 
removal before this Court. Under the First Step Act of 2018, federal prisoners who participate in 
“evidence-based recidivism reduction programs” while in the custody of the Federal Bureau of 
Prisons may earn up to fifteen days per month in time credits (“FTCs”). 

(d). Up 
to one year’s worth of FTCs may be applied towards shortening the prisoner’s overall term of 
imprisonment. See 

(g)(3). Some prisoners, however, are ineligible to apply FTCs; 
these ineligible prisoners include those prisoners who are “subject of a final order of removal.” 

(d)(4)(E)(i). If Petitioner were not subject to a final order of removal, then he would 
be eligible to earn and apply FTCs to his sentence, thereby shortening that sentence. 

   The amount of time that Petitioner is required to spend in the custody of the Federal Bureau 
of Prisons is, to be sure, a proper subject of habeas review. But the FSA does not provide litigants 
with a backdoor method for challenging the validity of an order of removal. See 

(g) 
(depriving federal district courts of jurisdiction “notwithstanding any other provision of law”); 
Balleza v. King, No. 24-cv-160 (NEB/LIB), 

, at *2–3 (D. Minn. Aug. 9, 2024), 
report and recommendation adopted, 

 (D. Minn. Oct. 3, 2024). That Petitioner 
is subject to a facially valid order of removal defeats any entitlement he might otherwise have to 
FTCs. See, e.g., Balleza, 

, at *3. If Petitioner were not subject to a final order 
of removal, then his term of custody might be reduced. 

 But to attack that final order of removal 
and (if successful) thereby become entitled to the application of FTCs, Petitioner will have to go 
through a more appropriate procedural channel. See, e.g., 

 at *2–3. This Court simply lacks 
jurisdiction to decide whether Petitioner should have been made subject to a final order of removal. 
See, e.g., 

                                                            

   Accordingly, the present habeas petition should be denied without prejudice and this matter 
dismissed without prejudice.                                              
   Therefore, based on the foregoing, and on all of the files, records, and proceedings herein, 
IT IS HEREBY RECOMMENDED THAT:                                            
   1.  The petition for a writ of habeas corpus of petitioner Sompheth Phoummany, [Docket 
     No. 1], be DENIED without prejudice; and                           
   2.  This case be DISMISSED without prejudice.                        


Dated: October 24, 2024         s/Leo I. Brisbois                       
                                Hon. Leo I. Brisbois                    
                                United States Magistrate Judge          


                           NOTICE                                       

Filing Objections: This Report and Recommendation is not an order or judgment of the District 
Court and is therefore not appealable directly to the Eighth Circuit Court of Appeals. 

Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a magistrate 
judge’s proposed finding and recommendations within 14 days after being served a copy” of the 
Report and Recommendation. A party may respond to those objections within 14 days after being 
served a copy of the objections. See Local Rule 72.2(b)(2). All objections and responses must 
comply with the word or line limits set forth in Local Rule 72.2(c).