28 C.F.R. § 544.71

Exceptions to required literacy program participation

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(a) The following inmates are not required to attend the literacy program:

(1) Pretrial inmates;

(2) Inmates committed for purpose of study and observation under the provisions of 18 U.S.C. 4205(c), 4241(d), or, effective November 1, 1987, 18 U.S.C. 3552(b);

(3) Sentenced deportable aliens;

(4) Inmates determined by staff to be temporarily unable to participate in the literacy program due to special circumstances beyond their control (e.g., due to a medical condition, transfer on writ, on a waiting list for initial placement). Such inmates, however, shall be required to participate when the special circumstances are no longer applicable.

(b) Inmates who have been determined (on the basis of formal diagnostic assessment) to have a documented emotional, mental, or physical individual impediment to learning shall not be required to complete the literacy program beyond those achievement levels indicated as realistic by the formal diagnostic assessment.

(c) Staff shall document in the inmate's education file the specific reasons for not requiring the inmate to participate in, or to complete, the literacy program.

Notes of Decisions

Cited in 3 cases, 2011–2019 · leading case: Reyes-Morales v. Wells, 766 F. Supp. 2d 1349 (S.D. Ga. 2011).

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Reyes-Morales v. Wells, 766 F. Supp. 2d 1349 (S.D. Ga. 2011). “28 C.F.R. §§ 544.71 (a) & 544.75. The BOP has created a separate exemption for “aliens subject to a final order of removal, deportation, or exclusion.”

Cecilio Lopez v. Michael Benov, 670 F. App'x 947 (9th Cir. 2016). “Although sentenced deportable aliens are not required to participate in the literacy program, 28 C.F.R. § 544.71 (a)(3), they still must make satisfactory progress towards earning their GEDs to earn the maximum 54 days of GCT, 18 U.”

Johnson v. Wilson (S.D.W. Va 2019). “Furthermore, the plaintiff does not qualify under 28 C.F.R. § 544.71 to be “temporarily unable to participate in the literacy program,” because the staff did not determine that the plaintiff was still on a waiting list for initial placement.”

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