Can Noncitizens Earn First Step Act Time Credits?

No. In most cases, noncitizens may not earn First Step Act Time Credits. The First Step Act specifically states that “[a] prisoner may not earn time credits” “if that prisoner is an inadmissible or deportable alien under the immigration laws….” You can find this rule in 18 U.S.C. § 3632(d)(4)(B)(iii).

The First Step Act directs you to the Immigration and Nationality Act for the definition of “alien” in this circumstance. The Immigration and Nationality Act defines the term “alien” as “any person not a citizen or national of the United States.” You can find this rule in 18 U.S.C. § 1101(a)(3).

Can noncitizens earn something other than First Step Act Time Credits?

Yes. While noncitizens cannot earn Time Credits under the First Step Act, nothing in the law keeps them from earning other incentives. Under 18 U.S.C. § 3632(d)(1)-(3), people in BOP custody can earn other incentives for participating in approved programs and activities.

For example, the First Step Act states that “[a] prisoner who is successfully participating in an evidence-based recidivism reduction program shall receive” more phone, video conferencing and visitation privileges at their facility.

Specifically, they “shall receive” “phone privileges, or, if available, video conferencing privileges, for up to 30 minutes per day, and up to 510 minutes per month[.]” They also “shall receive” “additional time for visitation at the prison, as determined by the warden of the prison.”

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The First Step Act also states that “[a] prisoner who is successfully participating in an evidence-based recidivism reduction program shall be considered by the Bureau of Prisons for placement in a facility closer to the prisoner’s release residence upon request from the prisoner….”

Finally, the First Step Act lists a few other incentives BOP facilities can offer or prisoners can ask for:

“[i]ncreased commissary spending limits and product offerings,”
“[e]xtended opportunities to access the email system,”
“[c] onsideration of transfer to preferred housing units (including transfer to different prison facilities),” and
“[o]ther incentives solicited from prisoners and determined appropriate by the Director.”

What if BOP staff tells you programs and activities will shorten your sentence?

Most of the time, it won’t matter. BOP staff make a lot of promises they can’t keep. For months, we heard about BOP officials telling people they’d earn Time Credits for programs and activities right away. But, at the same time, the DOJ told courts they wouldn’t apply any until Jan. 15, 2022.

We’ve also heard about BOP staff telling noncitizens that First Step Act programs and activities could shorten their sentence. But, as you know from the law quoted above, “an inadmissible or deportable alien” “may not earn time credits” under the First Step Act.

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If BOP staff made these promises in writing, keep those documents. It may not help you get the Time Credits you’ve been promised. But you can use those documents in court cases down the road. And organizations like How to Justice and Interrogating Justice can use them to advocate for change.

The Takeaway:

The First Step Act specifically states that “an inadmissible or deportable alien” “may not earn time credits….” An “alien” is “any person not a citizen or national of the United States.” So, if you are not a citizen or a national of the U.S., you can’t earn First Step Act Time Credits.