24-1131-pr Cheng v. United States
United States Court of Appeals For the Second Circuit August Term, 2024
(Submitted: December 11, 2024 Decided: April 1, 2025)
Docket No. 24-1131-pr _____________________________________
SHENG-WEN CHENG, INDIVIDUALLY AND ON BEHALF OF A CLASS OF ALL OTHERS SIMILARLY SITUATED,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee,
C.O. ANDRE HICKSON, WARDEN JEAN RENE, ANTOINETTE CORT, DEPUTY COMMISSIONER, C.O. KEVIN WHITE, CITY OF NEW YORK, C.O. ERICA GAINOUS, LOUIS MOLINA, COMMISSIONER OF DOC, C.O. PRESTON RITTER, CAPTAIN WIGFALL, C.O. MURPHY WHITE, C.O. PAUL WHITE, C.O. KARVEN ALCINDOR, C.O. CLARENCE CURLEY, C.O. ANDRE ANDERSON, C.O. ALONSO MORGAN, C.O. ALONZO BUTLER, IDI GUITY, ASST. DEPUTY WARDEN, C.O. ANTONIO GRAVES, JOANNA MATOS, DEP. WARDEN, CAPTAIN FLUKA, C.I.B. UNIT, KAREN COLLINS, WARDEN, WOLOSKI, BAWA, SRT CAPTAIN LOPEX, C.O. PHILLUPS, ESU CAPT. RIVERA, C.O. ORELLA, Defendants. * _____________________________________
* The Clerk of Court is respectfully directed to amend the official case caption as set forth above. Before:
LOHIER, SULLIVAN, and KAHN, Circuit Judges.
Sheng-Wen Cheng challenges a provision of the First Step Act, 18 U.S.C. § 3632(d)(4)(E)(i), which distinguishes between noncitizen prisoners with a final order of removal and other prisoners in determining eligibility for good time credits. Cheng contends that the statute unlawfully discriminates against noncitizens and deprives him of a protected interest, in violation of the Equal Protection Clause, the Due Process Clause, and the Administrative Procedure Act. We disagree. Neither the distinction the statute draws between citizens and noncitizens nor the establishment of different classes of noncitizens triggers heightened scrutiny. Nor does the challenged provision create a protected statutory interest. We therefore AFFIRM.
Sheng-Wen Cheng, pro se, Rochester, MN
Tara Schwartz, Benjamin H. Torrance, Assistant United States Attorneys, for Matthew Podolsky, Acting United States Attorney for the Southern District of New York, for Defendant-Appellee
PER CURIAM:
Sheng-Wen Cheng, proceeding pro se, appeals from a judgment of the
United States District Court for the Southern District of New York (Broderick, J.)
dismissing his claims against the Defendants based on alleged equal protection
and due process violations under the Fifth Amendment and a violation of the
Administrative Procedure Act (APA). Cheng challenges a provision of the First
Step Act (FSA), 18 U.S.C. § 3632(d)(4)(E)(i), that distinguishes between noncitizen
2 prisoners with a final order of removal and other prisoners in determining
eligibility for good time credits. Cheng contends that the provision unlawfully
discriminates against noncitizens and deprives him of a protected interest. We
disagree. Neither the distinction the provision draws between citizens and
noncitizens nor the establishment of different classes of noncitizens triggers
heightened scrutiny. Nor does the challenged provision create a protected
statutory interest. We therefore AFFIRM.
BACKGROUND
Cheng, a Taiwanese national, pleaded guilty to several charges arising
from his participation in a fraudulent scheme involving millions of dollars
obtained from COVID-19 pandemic relief programs. The District Court
sentenced Cheng principally to 72 months’ imprisonment and also ordered that
he be removed to Taiwan upon completing his criminal sentence.
Cheng challenges a provision of the FSA, 18 U.S.C. § 3632(d)(4)(E)(i),
which provides that a prisoner who is subject to a final order of removal is
ineligible for application of time credits otherwise available to prisoners who
participate in “evidence-based recidivism reduction programming or productive
activities,” id. § 3632(d)(4)(A). Cheng argues that the distinction section
3 3632(d)(4)(E)(i) draws between prisoners with a final order of removal and those
without such an order violates his equal protection and due process rights, and
that the Bureau of Prisons’ enforcement of section 3632(d)(4)(E)(i) violates the
APA.
DISCUSSION
We review a district court’s grant of a motion to dismiss de novo,
“accepting the allegations in the complaint as true and drawing all reasonable
inferences in favor of the plaintiff.” Palmer v. Amazon.com, Inc., 51 F.4th 491, 503
(2d Cir. 2022). We also liberally construe submissions by pro se litigants as
raising the strongest arguments they suggest. See Publicola v. Lomenzo, 54 F.4th
108, 111 (2d Cir. 2022).
Cheng argues that the District Court wrongly applied a rational basis
standard of review in evaluating his equal protection challenge and that it
should instead have applied heightened scrutiny because the FSA treats
noncitizens with final removal orders differently from other prisoners. We
disagree. Noncitizen status triggers heightened scrutiny “only when a state or
local government has sought to employ the classification to disadvantage foreign
nationals.” United States v. Lue, 134 F.3d 79, 86 (2d Cir. 1998) (emphasis added).
4 “Generally, the federal government is not held to the same searching scrutiny
when it draws lines on the basis of alienage.” Id. Neither the FSA’s distinction
between citizens and noncitizens nor the distinction the statute draws within the
class of noncitizens — denying benefits to those subject to a final order of
removal but allowing benefits to those not subject to such an order — suffices to
trigger heightened scrutiny. See Mathews v. Diaz, 426 U.S. 67, 80–84 (1976); Yuen
Jin v. Mukasey, 538 F.3d 143, 158–59 (2d Cir. 2008). We therefore conclude that
the District Court correctly applied rational basis review to Cheng’s equal
protection claim.
Cheng alternatively argues that section 3632(d)(4)(E)(i) does not survive
even rational basis review. This argument likewise lacks merit. In the absence of
heightened scrutiny, a statutory classification “must be upheld against equal
protection challenge if there is any reasonably conceivable state of facts that
could provide a rational basis for the classification.” Jankowski-Burczyk v. I.N.S.,
291 F.3d 172, 178 (2d Cir. 2002) (quotation marks omitted). As the District Court
observed, eliminating time credits reasonably reduces the risk that noncitizens
with removal orders will flee and ensures that noncitizens who enter or remain
in the country illegally and commit felonies within the United States are required
5 to serve their full prison sentences. See Demore v. Kim, 538 U.S. 510, 513, 524
(2003); Skelly v. I.N.S., 168 F.3d 88
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24-1131-pr Cheng v. United States
United States Court of Appeals For the Second Circuit August Term, 2024
(Submitted: December 11, 2024 Decided: April 1, 2025)
Docket No. 24-1131-pr _____________________________________
SHENG-WEN CHENG, INDIVIDUALLY AND ON BEHALF OF A CLASS OF ALL OTHERS SIMILARLY SITUATED,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee,
C.O. ANDRE HICKSON, WARDEN JEAN RENE, ANTOINETTE CORT, DEPUTY COMMISSIONER, C.O. KEVIN WHITE, CITY OF NEW YORK, C.O. ERICA GAINOUS, LOUIS MOLINA, COMMISSIONER OF DOC, C.O. PRESTON RITTER, CAPTAIN WIGFALL, C.O. MURPHY WHITE, C.O. PAUL WHITE, C.O. KARVEN ALCINDOR, C.O. CLARENCE CURLEY, C.O. ANDRE ANDERSON, C.O. ALONSO MORGAN, C.O. ALONZO BUTLER, IDI GUITY, ASST. DEPUTY WARDEN, C.O. ANTONIO GRAVES, JOANNA MATOS, DEP. WARDEN, CAPTAIN FLUKA, C.I.B. UNIT, KAREN COLLINS, WARDEN, WOLOSKI, BAWA, SRT CAPTAIN LOPEX, C.O. PHILLUPS, ESU CAPT. RIVERA, C.O. ORELLA, Defendants. * _____________________________________
* The Clerk of Court is respectfully directed to amend the official case caption as set forth above. Before:
LOHIER, SULLIVAN, and KAHN, Circuit Judges.
Sheng-Wen Cheng challenges a provision of the First Step Act, 18 U.S.C. § 3632(d)(4)(E)(i), which distinguishes between noncitizen prisoners with a final order of removal and other prisoners in determining eligibility for good time credits. Cheng contends that the statute unlawfully discriminates against noncitizens and deprives him of a protected interest, in violation of the Equal Protection Clause, the Due Process Clause, and the Administrative Procedure Act. We disagree. Neither the distinction the statute draws between citizens and noncitizens nor the establishment of different classes of noncitizens triggers heightened scrutiny. Nor does the challenged provision create a protected statutory interest. We therefore AFFIRM.
Sheng-Wen Cheng, pro se, Rochester, MN
Tara Schwartz, Benjamin H. Torrance, Assistant United States Attorneys, for Matthew Podolsky, Acting United States Attorney for the Southern District of New York, for Defendant-Appellee
PER CURIAM:
Sheng-Wen Cheng, proceeding pro se, appeals from a judgment of the
United States District Court for the Southern District of New York (Broderick, J.)
dismissing his claims against the Defendants based on alleged equal protection
and due process violations under the Fifth Amendment and a violation of the
Administrative Procedure Act (APA). Cheng challenges a provision of the First
Step Act (FSA), 18 U.S.C. § 3632(d)(4)(E)(i), that distinguishes between noncitizen
2 prisoners with a final order of removal and other prisoners in determining
eligibility for good time credits. Cheng contends that the provision unlawfully
discriminates against noncitizens and deprives him of a protected interest. We
disagree. Neither the distinction the provision draws between citizens and
noncitizens nor the establishment of different classes of noncitizens triggers
heightened scrutiny. Nor does the challenged provision create a protected
statutory interest. We therefore AFFIRM.
BACKGROUND
Cheng, a Taiwanese national, pleaded guilty to several charges arising
from his participation in a fraudulent scheme involving millions of dollars
obtained from COVID-19 pandemic relief programs. The District Court
sentenced Cheng principally to 72 months’ imprisonment and also ordered that
he be removed to Taiwan upon completing his criminal sentence.
Cheng challenges a provision of the FSA, 18 U.S.C. § 3632(d)(4)(E)(i),
which provides that a prisoner who is subject to a final order of removal is
ineligible for application of time credits otherwise available to prisoners who
participate in “evidence-based recidivism reduction programming or productive
activities,” id. § 3632(d)(4)(A). Cheng argues that the distinction section
3 3632(d)(4)(E)(i) draws between prisoners with a final order of removal and those
without such an order violates his equal protection and due process rights, and
that the Bureau of Prisons’ enforcement of section 3632(d)(4)(E)(i) violates the
APA.
DISCUSSION
We review a district court’s grant of a motion to dismiss de novo,
“accepting the allegations in the complaint as true and drawing all reasonable
inferences in favor of the plaintiff.” Palmer v. Amazon.com, Inc., 51 F.4th 491, 503
(2d Cir. 2022). We also liberally construe submissions by pro se litigants as
raising the strongest arguments they suggest. See Publicola v. Lomenzo, 54 F.4th
108, 111 (2d Cir. 2022).
Cheng argues that the District Court wrongly applied a rational basis
standard of review in evaluating his equal protection challenge and that it
should instead have applied heightened scrutiny because the FSA treats
noncitizens with final removal orders differently from other prisoners. We
disagree. Noncitizen status triggers heightened scrutiny “only when a state or
local government has sought to employ the classification to disadvantage foreign
nationals.” United States v. Lue, 134 F.3d 79, 86 (2d Cir. 1998) (emphasis added).
4 “Generally, the federal government is not held to the same searching scrutiny
when it draws lines on the basis of alienage.” Id. Neither the FSA’s distinction
between citizens and noncitizens nor the distinction the statute draws within the
class of noncitizens — denying benefits to those subject to a final order of
removal but allowing benefits to those not subject to such an order — suffices to
trigger heightened scrutiny. See Mathews v. Diaz, 426 U.S. 67, 80–84 (1976); Yuen
Jin v. Mukasey, 538 F.3d 143, 158–59 (2d Cir. 2008). We therefore conclude that
the District Court correctly applied rational basis review to Cheng’s equal
protection claim.
Cheng alternatively argues that section 3632(d)(4)(E)(i) does not survive
even rational basis review. This argument likewise lacks merit. In the absence of
heightened scrutiny, a statutory classification “must be upheld against equal
protection challenge if there is any reasonably conceivable state of facts that
could provide a rational basis for the classification.” Jankowski-Burczyk v. I.N.S.,
291 F.3d 172, 178 (2d Cir. 2002) (quotation marks omitted). As the District Court
observed, eliminating time credits reasonably reduces the risk that noncitizens
with removal orders will flee and ensures that noncitizens who enter or remain
in the country illegally and commit felonies within the United States are required
5 to serve their full prison sentences. See Demore v. Kim, 538 U.S. 510, 513, 524
(2003); Skelly v. I.N.S., 168 F.3d 88, 91–92 (2d Cir. 1999). 1 Because the FSA’s
exclusion of noncitizens with a final order of removal survives rational basis
review, Cheng’s equal protection claim fails.
Cheng also challenges the District Court’s dismissal of his due process
claim. To state a due process claim, a plaintiff must allege a protected liberty or
property interest. See Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997)
(substantive due process); Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 571–72
(1972) (procedural due process). In this context, a protected interest is created
where state or federal legislation “provide[s] a statutory right to good time
[credit].” Wolff v. McDonnell, 418 U.S. 539, 557 (1974). Such a protected interest
must give rise to “a legitimate claim of entitlement to” release from prison.
Victory v. Pataki, 814 F.3d 47, 59 (2d Cir. 2016) (quotation marks omitted). A mere
“hope or a unilateral expectation of release” does not create a protected interest.
Id. (quotation marks omitted); see also Bangs v. Smith, 84 F.4th 87, 97 (2d Cir.
1Cheng also asserted an equal protection claim based on a “class of one” theory, which requires him to show that he “has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). But Cheng has abandoned this argument by failing to raise it in his opening brief on appeal. See Drabinsky v. Actors’ Equity Assoc., 106 F.4th 206, 217 n.5 (2d Cir. 2024). 6 2023). Cheng argues that section 3632(d)(4)(E)(i) creates such an interest because
its language is mandatory. But the FSA, taken as a whole, makes clear that
noncitizens with final orders of removal are not eligible for time credits. Because
Cheng had no protected interest in the award of good time credits under the
FSA, we reject his due process claim.
Finally, Cheng failed to state a valid APA claim because his complaint did
not allege any unlawful agency action. See 5 U.S.C. § 706(2)(A); F.C.C. v.
NextWave Pers. Commc’ns, Inc., 537 U.S. 293, 300 (2003).
CONCLUSION
We have considered Cheng’s remaining arguments and conclude that they
are without merit. For the foregoing reasons, we AFFIRM the judgment of the
District Court.