Petition for Writ of Certiorari — Sheng-Wen Cheng, Petitioner v. Steve Kallis, Warden

Supreme Court briefAug 8, 2024

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IN THE SUPREME COURT OF THE UNITED STATES

FILED

AUG 0 8 2024

OFFICE OF THE CLERK

SUPREME COURT. U.S.

SUENG-WEN CHENG,

PETITIONER,

vs.

JARED RARDIN,

RESPONDENT.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEAl S

FOR THE EIGHTH CIRCUIT

PETITION FOR CERTIORARI

Shens>-Wen Chen? (Pro Se)

No. 05261-509

Federal Medical Center

PMB 4000

Rochester, MN, 55903

QUESTIONS PRESENTED FOR REVIEW

1. Does Respondent Jared Rardin's ("BOP") policy of barring federal

alien prisoners with a final order of removal from being

eligible/considered for Residential Reentry Center ("RRC Removal

Pojiicy"), violates the Equal Protection Clause of the

Fourteenth Amendment?

2. Does BOP's RRC Removal Policy violates the Due Process Clause

of the Fifth Amendment?

3. Is. '-.he Eighth Circuit's present judgement/opinion in conflict

with the statute, its precedents, and authoritive opinions of

other Circuit Court of Appeals?

LIST OF PARTIES I.N COURT BELOW

1. Sheng-Wen Cheng ("Mr. Cheng"), Petitioner.

2. Jared Rardin (Also the Warden of Federal Medical Center

Rochester, representing the BOP), Respondent.

LIST OF CASES DIRECTLY RELATED TO THIS CASE

1. Sheng-Wen Cheng v. Jared Rardin

No.23-cv-2852-ECT-DJF

U.S. District) Court for the District of Minnesota

Judgement entered on ;March’ 25, 2024.

2. Sheng-Wen Cheng v. Jared Rardin

No.23-1796

U.S. Court of Appeals for the Eighth Circuit

Mandate Entered on July 2, 2024.

TABLE OF CONTENTS

PgPl

QUESTIONS PRESENTEDTFOR REVIEW

LIST OF PARTIES IN COURT BELOW

LIST OF CASES DIRECTLY RELATED TO THIS CASE

TABLE OF AUTHORITIES"CITED.

•iv

OPINIONS AND ORDERS IN CASE

JURISDICTIONAL STATEMENT

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

EXISTENCE OF JURISDICTION BELOW

ARGUMENT FOR ALLOWANCE OF WRIT.......................................... ...........

I. BOP'S RRC REMOVAL POLICY VIOLATES EQUAL PROTECTION

II. BOP'S RRC REMOVAL POLICY VIOLATES DUE PROCESS....

III. THE EIGHTH CIRCUIT'S DECISION IS IN CONFLICT WITH THE

STATUTE, ITS PRECEDENT, AND OTHER CIRCUITS ‘ OPINIONS.

CONCLUSION

APPENDIX

.13

-v—

• -)

. ...16

_:__APREWDXXEA..,.

APPENDIX B

APPENDIX C

APPENDIX D

CERTIFICATE OF SERVICE

iii

TABLE OF AUTHORITIES CITED

PAGE(S)

CASES:

Bolling v. Sharpe

347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 (1954)................

Carrington v. Rash

380 U.S. 81, 85 S. Ct. 775, 13 L. Ed. 2d 675 (1965)...............

Cleveland Bd.. of Educ v. Lafleur

414 U.S. 632 (1974).....................................................................................

Dasenbery v. United States

534 U.S. 161, 167, 122 S. Ct. 694, 151 L. ED. 2d 597 (2002)

Doe v. Federal Bur. of Prisons

2024 U.S. Dist. LEXIS 19755, 2024 WL 455309, at *7-4j I

(S.D.N.Y. Feb 5, 20243...............................................................................

Elwood v. Jeter

386 F. 3d 842, 847 (8th Cir. 2004)....................................................

Fults v. Sanders

442 F. 3d 1088 (8th Cir. 2006).............................................................

Graham v. Richardson

403 U.S. 365, 372, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971).

In re Griffith

413 U.S. 717, 721-22, 729, 93 S. Ct. 2851 5 37 L. Ed. 2d 970_ _’J

(1973)..........................................................................

Johnson v. Robinson

415 U.S. 361, 364, n.4, 94 S. Ct. 1160, 1164

389, 396 (1975).............................................................

39 L.Ed.2d

Komando v. Luna

2023 U.S. Dist. LEXIS 11477 (D.N.H. Jan 13, 2023)..................

Levine v. Apler

445 F. 3d 71, 87 (2d Cir. 2006).........................................................

Lopez v. Davis

531 U.S. 230, 148 L. ED. 2d 635, 121 S. Ct. 774 (2001)....

Mass.Bd. of Ret v. Murgie

427 U.S. 307, 312, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976)

Matthews v. Eldridge

424 U.S. 319, 332, 96 S. Ct. 893, 47 L. ED.2d 18 (1971).............

Nat'l Cable & Telecommunication Ass'n v. Brand X Internet Service

545 U.S. 967, 162 L. Ed. 2d 820, 125 S. Ct. 2688, 2700 (2005).

Nyquist v. Mauclet

432 U.S. 1, 9, 53 L. Ed. 2d 63, 97 S. Ct. 2120 (1977)..................

Plyler v. Doe

457 U.S. 202, 210, 72 L. Ed.2d 786, 102 S. Ct. 2382 (1982)....

Ramirez v. Philips

2023 U.S. Dist. LEXIS 228778 (E.D. Cal, Dec 22, 2023)11

Reed v. Reed

404 U.S. 71

92 S. Ct. 251, 30 L. Ed. 2d 225 (1971)

Rodriguez v. Smith

541 F. 3d 1180 (9th Cir. 2008).............................................................

Royster Guano CO v. Virginia

258 U.S. 412, 40 S. Ct. 560, 64 L. Ed. 989 (1920)....................

Schlesinger v. Wiscosin

270 U.S. 230, 46 S. Ct. 260, 70 L. Ed. 557 (1926)....................

Sierra v. Jacquez

2022 U.S. Dist. LEXIS 224525 (W.D. Wash, Dec 27, 2022).........

Stanley v. Illinois

405 U.S. 645 (1972).....................................................................................

Sugarman v. DougaLl

'413 U.S. 634,

L. Ed.2d 853, 93 S. Ct. 2842 (1973).............

Swarthout v. Cooke

562 U.S. 216, 131 S. Ct. 859, 862, 178 L. Ed. 2d 732 (2011)

Turner v. Dep't of Employment Security

423 U.S. 44 (1975).......................................................................................

Vlandis v. Kline

412 U.S. 441 (1973)............................ ........................................................

Washington v. Davis

426 U.S. 229, 239, 48L.Ed.2d 597, 66 S. Ct. 2040 (1976)....

Wedelstedt v. Wiley

477 F. 3d 1160, 1161-62 (10th Cir. 2007) .......................................

Woodfall v. Fed.Bureau of Prisons

432 F. 3d 235, 244 (3d Cir. 2005)........ ...............................................

Yick Wo v. Hopkins

118 U.S. 356, 368-369, 373-374, 6S. Ct.1064, 30L.Ed.220 (1886)

OTHER AUTHORITIES:

U.S. Const. Amend.i . 14 ,

8U.S.C.1227(a)(2)..............

18U.S.C.3621(b)..................

10,11,12

18U.S.C.3624(c)..................

18U.S.C.3624(c)(1)............

12,13

18U.S.0.3624(c)(6)(B)

12,13

OPINIONS AND ORDERS IN CASE

The opinion and judgement of the United States Court

Appeals for

---j

Ltne Eighth Circuit is reported as Appendix A.

The opinion and judgement of the United States Court of Xgpeals for

the Eighth Circuit, denying the petition for rehearing and rehearing

en banc, is reported as Appendix B.

The opinion and judgement of the United States 'District Court for

the District of Minnesota, based on adopting the Report and

Recommendation, is reported as Appendix C.

JURISDICTIONAL STATEMENT

The judgement of the United States Court of Appeals for the Eighth

Circuit (reported as Appendix A), was entered on May 20, 2024. On June

3, 2024, Mr. Cheng timely filed a combined Petition for Rehearing and

for Rehearing En Banc. The Appeals Court entered an order (reported as

Appendix B), denying the combined petition on June 24, 2024.

This petition for certiorari is filed within 90 daysjjof that date,

so that this Court has jurisdiction to review the judgement of the

Eighth Circuit on petition for certiorari rests by virtue of

28U.S.C.1254(1X1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution ^provides, in

pertinent part:

No person shall ... be deprived of life, liberty, or property

without due process of law.'

The Fourteenth Amendment to the United States [Constitution provides,

in pertinent part:

No state shall make or enforce any law which ... deny to any person

wpthm its jurisdiction the equal proteciton of the laws.

18U.S.C.3621(b) provides as follows:

The Bureau of Prisons shall designate the place of the prisoner's .

imprisonment ...The Bureau may designate any avaliable penal or

correctional facility that meets minimum standard of health and

habitability established by the Bureau ... that the Bureau determines

to be appropriate and suitable, considering 1) the resources of the facility contemplated;

2) the nature and circumstance of the offense;

3) the history and characteristics of the prisoner;

4) any statement by the court that imposed the sentence

A) concerning the purpose ,for which the sentence to

imprisonment was determined to be warranted; or

B) recommending a type of penal or correctional facility as

appropriate; and

5) any pertinent policy statement issued by the Sentencing

Commission pursuant to section 994(a)(2) of title 28.

In designating the place of imprisonment or making transfer under

his subsection, there shall be no favoritism given to prisoners

of high social or economic status.

18U.S.C.3624(c)(1) provides as follows:

The Director of the Bureau of Prisons shall, to the extentf

practicable, ensure that a prisoner serving! a term of imprisonment

spends a portion of the final months of tliat term (not to exceed

12 months), under conditions that will afford that prisoner a

reasonable opportunity to adjust to and prepare for the reentry

of that prisoner into the community. Such conditions may include

a community correctional facility.

18U. S . C ..3624(c) (6) provides as follows:

The Director of the Bureau of Prisons shall issue regulations .. * 5

which shall 'ensure that, placement in a community correctional

facility by the Bureau of Prisons is A) conducted in a manner consistent with section 3621(b) of t

this title;

B) determined on an individual basis; and

C) of sufficient duration to provide the greatest likelihood

of successful reintegration into the community.

STATEMENT OF THE CASE

On August 18, 2020, Mr. Cheng was arrested on federal charges at

his apartment building in Manhattan, New York. Subsequently, on August 11,

2021, then Judge Alison J. Nathan sentenced Mr. Cheng to a term of 72

jf' 'L .

raorvths imprisonment, with an judicial order of removal.

In 2007, Second Chance Act ('^SCA") became law. The act aims to

improve the criminal justice system by reducing the size of federal

prison population, and assisting prisoners to reintergrate into the

society through Residential Reentry Center ("RRC") or home confinement.

As relevant here, SCA provides that the Director of BOP (Federal Bureau

of Prisons) shall "[ejnsure that a prisoner serving a term of imprisonment

spends a portion of the final months, under conditions that will afford

that prisoner a reasonable opportunity to adjust to and prepare for the

reentry of that prisoner into the community." 18U.S.C.3624(c)(1). Also,

the Director of BOP "[sjhall ensure that placement in an RRC by the BOP

... is determined on an individual basis", 18U.SC..3624(c)(6)(B),

consistent with the individual [factors mandated in 18U.S.C.3621(b).

;

v-i

Jileyfer the less, on June 23, 2023, the BOP implemented .the RRC Removal

Policy, which automatically bars federal alien prisoners with^a final

order of removal like Mr. Cheng from being considered/bligible for RRC,

without evaluating the prisoner's individual factors and. personal

situation as required by the SCA (R.Doc.l).

Therefore, on September 15, 2023, Mr. Cheng filed a 28U.S.C.2241

Habeas Corpus Petition at the U^jTTj District Court of Minnesota to challenge

'the BOP's RRC Removal Policy. However, on January 2

2024, the District

Court issued a Report and Recommendation ("R&R"), recommending dismissing

Mr. Cheng's petition because his challenge was premature, the BOP's

decision to determine RRC placemnet is not subject to judicial review, and

a habeas petition is not the appropriate vehicle to challenge the RRC

Remoya 1.~(Po 1 icyj,lwithout addressing any constitutional and statute

interpretation questions raised by Mr. Cheng (R.Doc.19).

Mr. Cheng subsequently filed his objection to the R&R with two

exhibits (R.Docs.30-31), and the government filed a very short response

to the objections (R.Doc.32). Neverthelss, the District Court overruled

Mr. Cheng's objections, adopted the R&R in full without addressing

Mr. Cheng's constitutional and statute interpretation questions, and

dismissed Mr. Cheng's 2241 petition without prejudice ijjR .Doc . 34); also

as Appendix A. Mr. Cheng then timely filed a notice of appeal on April

11, 2024 (R. Doc. 37).

Nevertheless, on May 20, 2024, the panel of the Eigth Circuit

Court of Appeals simply affirmed the District Court's dismissal of

Mr. Cheng's Habeas petition by examining the record history from the

District Court only, see Appendix Bjj causing its judgement to be in

conf 11Ct with its precedent and' the authori.tive opinions of other

Circuit courts* As a result, on June 3

2024, Mr. Cheng filed a combined

petition for rehearing and for rehearing en banc, but was subsequently

denied on June 24, 2024 without any reasons provided. Mr. Cheng then

filed a motion to stay the mandate, but was also denied without any

reasons provided, see Appendix D.

Accordingly, this petition for certiorari follows.

EXISTENCE OF JURISDICITON BELOW

The United States District Cpiirt for the District of Minnesota

had jurisdiction under 28U.S.C.2241.

The United States District Court's final judgement was duly appealed

to the United States Court of Appeals for the Eighth CircuifTJwhich had

jurisdiction over the appeal under 28U. SiTcj-1291.

ARGUMENT FOR ALLOWANCE OF WRIT

This Court (should review and reverse the decisions made by lower

courts in this case, because both the District Court and the Eighth

Circuit failed to address whether the BOP's RRC Removal Policy violates

the Due Process and Equal Protection rights, Lbdth misinterpreted the

provisions under the SCA that governs RRC pl[a<ch£ent, and both made

decisions in contrary to the precedents and opinions of other Circuit"

courts•

This Court has never reviewed the question presented in this

petition in regards to an RRC placement for a federal alien prisoners with

a final order of removal.. Therefore, the Eighth Circuit's decision, if

not reversed, will defeat the Congress

intention of reforming criminal

justice system when it passed the SCA, and in fact increases the (_

recidivism risk of federal alien prisoners with a final order of removal,

to the detriment of the society as a whole.

I. BOP'S PRC REMOVAL POLICY VIOLATES EQUAL PROTECTION.

The Equal Protection Clause of the Fourteenth Amendment provides

that no state shall "deny to any person ... the equal protection of

^\J

the laws." U.S. Const. Amendlt;.] 14,^1. Aliens, even illegal aliens, have

long been recognized as persons guaranteed equal protection through the

due process clause of the Fifth Amendment. See,e.g., Plyler v. Doe,

457 U.S. 202, 210, 72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982); Yick Wo

v. Hopkins, 118 U.S. 356, 368-369, 373-374, 6 S. Ct. 1064, 30 L. Ed.

220 (1886).

This Court has long held that the federal government cannot

discriminate on the basis of alienage. Because "aliens as a class are

a prime example of a discrete and insular minority", and "the power of

a state to apply its laws exclusively to its alien inhabitants as a

class is confined within narrow limits." Graham v. Richardson, 403 U.S.

365, 372, 91 S. Ct. 1848, 29 L. Ed. 2d .534 (1971). Thus, a law or

'■‘xr"

policy that "impermissibly interferes with the exercise of a fundamental

right or operates to the peculiar disadvantage of a suspect class" is

reviewed under the strict scrutiny standard. Mass.Bd. of Ret v. Murgie,

427 U.S. 307

312, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976).

At present case, federal aliens prisoners who have a final order

of removal such as Mr. Cheng, is a suspect or quasi-suspect class that

warrant a strict scrutiny standard, because this classification by the

BOP singles out a particular group for disparate treatment, and the

disparate treatment is presumptively unconstitutional absent a showing

that the classification was "necessary" to fulfill a constitutionally

"permissible" and "substantial" purpose. In re Griffiths, 413 U.S. 717,

721-22, 729

93 S. Ct. 2851, 37 L. Ed. 2d 970 (1973). Indeed, the fact

that the challenged RRC Removal Policy here "is not an absolute bar

[against 3 a£l_ ,ali ens.]; (does nob mean that it does not discriminate against

the class." Nyquist v. Mauclet, 432 U.S. 1,9, 53 L. Ed. 2d 63

97 S. Ct.

2120 (1977).

Thus, a strict scrutiny standard should be applied here for

Mr. Cheng's equal protection claim.

Under the equal protection analysis, BOP's RPC Removal Policy

clearly ignores that equal protection is written broadly as protecting

all persons. Here, the RRC Remoyalj policy allows federal alienLprisoners

with an immigration detainer but without a final order of removal to be

considered/eligible for RRC. However, this distinction lacks any valid

reasoning, as all federal aliens prisoners, with or without a final order

of removal, pose the same flight risk, .were sentenced under the same

sentencing guideline, and do ncrfc get deported from the United States

until the completion of the criminal sentence. Indeed, federal alien

prisoners who currently do not have a final order of removal, most

likely will receive one once being moved into the immigration cusotdy,

and subsequently be deported from the United States. See 8U.S.C.1227

(a)(2). As a result, there is no rational basis -ht all for the BOP to

bar only federal alien prisoners with a final order of removal such

as Mr. Cheng from being considered/eligible for RRC.

Most importantly, even federal alien prisoners who receive treatytransfer -which mean that they will be physically removed from the

1. This Court can still use the rational basis analysis for Mr. Cheng's

equal protection claim, if it were trr reject using the strict

sc-rutiny standard.

United States while they are still in the middle of their criminal

sentence- are eligible for RRC (R.Doc.3^)J In another words, federal

aliens prisoners who receive treaty-transfer, face the same fate of

deportation/removal as federal alien prisoners who have a f anal order

of removal, and yet they are eligible for RRC. Therefore, B.OP' s RRC

Removal Policy obviously has no legitimate justification and violates

equal protection.

Finally, BOP's RRC Removal Policy is a discriminatory policy with

an irrebuttable presumption that federal alien prisoners with a final

order of removal will 100% escapte once he or she is placed in an RRC.

This type of intentional discriminatory classification has been found

by this Court to violate equal protection. ^ee^fetsMngton v. Davis

426 U.S. 229, 239, 48 L. Ed. 2d 597, 66 S. Ct. 2040 (1976).

Accordingly, BOP's RRC Removal Policy violates Mr. Cheng's Equal

Protection Right and should be invalidated.

II. BOP'S RRC REMOVAL POLICY VIOLATES DUE PROCESS.

The Due Process Clause of the Fifth Amendment prohibits the

federal government from depriving people of their life, liberty, and

property without the required due process of law. See Dasenbery v.

United States, 534 U.S. 161, 167, 122 S. Ct. 694

151 L. Ed. 2d 597

2. This Court has also held other statutes or polices that employs

irrebuttable presumption in regards to classification violates equal

protection. See, e.g., Schlesinger v. Wisconsin, 270 U.S. 230, 46 S. Ct.

260, 70 L. Ed. 557 (1926); Carrington v. Rash, 380 U.S. 81, 85 S.Ct. 775,

13 L. Ed. 2d 675 (1965); Royster Guano Co v. Virginia, 258 U.S. 412, 40

S. Ct. 560, 64 L, Ed. 989 (1920); Reed v. Reed, 404 U.S. 71, 92 S'. Ct.

’ ^d 225 (1971): Sugarman v. Dougall,. 413 U.S. 634, 37 L.

Ed.2d 853 93 S. Ct. 2842 (19^3).

(2002). A liberty interest protected by the Fifth Amendment may arise

from two sources: the Constitution or a federal statute. See,

Swarthout v. Cooke, 562 U.S. 216, 131 S. Ct. 859, 862, 178 L. Ed. 2d

732 (2011); Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 47

L. Ed. 2d 18 (1976).

At present case, all federal prisoners -including federal alien

prisoners with a final order of removal such as Mr. Cheljrj here- have

a liberty interest to be considered for RRC under SCA related statutes;^

18U.S.C.3621(b) and 3624(c).

In 18U. S . C. 3621 (b) , the statute uses the word "shall", and. thus it

obliges the. BOP to designate the place of the prisoner's imprisonment.

In making this mandatory initial placement, the statute further

specifies that the BOP "may designateLahy available penal or correctional

facility ... that the Bureau determines to be appropriate and suitable,

considering [enumerated statutory factors]." 18U . S . C ..362^!b) . Congress'

use of language! "may designate" in this provision seemingly empowers

the BOP with broad discretion. Also

the fact that, the statute

differentiates the use of "may" and "shall" in adjacent sentences

indicates the Congress' mindfulness of the significance of those terms.

See Lopez v. Davis, 531 U.S. 230, 148 L. Ed. 2d 635, 121 S. Ct. 744

(2001).

However, if Congress had rested there, the BOP would have been

left with unguided discretion in which correctional facilities are

appropriate and suitable for every prisoner. See Nat'l Cable &

Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967

162 L. Ed. 2d 820, 125 S. Ct. 2688, 2700 (2005) (Stating the presumption

that when Congress lefMiambiguity in a statute meant it described the

agency to possess whether degree of descretion the ambiguity allows).

Nevertheless, Congress was not silent on the criteria for placing a

prisoner in an appropriate and suitable facility. Instead, the text

states that the ROP must do so considering and being regard for a Fist “of/

factors. See 18IJ. S . C. 3621 (h) .

From following the. plain grammatical construction of the statute

-the order of the sentence and the commna placed beforev.Vcbhs'I d.eV^Fng

that the BOP's discretion to designate a power to a penal or correctional,

facility, and its determin.a.tojon -of which facility is appropriate and

suitable for that prisoner, shows that ifJmust be informed, by the. FFsti

of five factors. See 1811.S.C.3621(b). This construction is further

reinforced by Congress' instruction with respect to transfer: "The Bureau

may at any time, being regard for the same matters, direct the transfer

of a prisoner from one penal or correctional facility to another." 18U.S.C.

3621(b). To read the statute otherwise, by reading 'may designate' to rend

render the five factors non-mandatory, would allow the discretion granted

by the word 'may

to eclipse the mandatory 'Congressional parameters for

the exercise of that discretion, and render them purely hortatory.

Most importantly. Congress used the word "and" rather than "or" to

unify the. five factors. 18U. S. C. 3621 (b) . Thus, all of the listed factors

must be considered. Furthermore, after enumerating the five factors, the

statute places only one additional restriction on.the BOP: "[tjhere shall

be no favoritism given to prisoners of high social or economic status"

18U.S.C.3621(b). Therefore

the statute clearly mandates the BOP to tgjJJ

consider the five factors wheneiyer it designate the pace of every lv

prisoner's imprisonment, and federal alien prisoners with a final order

of removal like Mr. Cheng should not be treated differently.

Similarly, the statute usds the word "shall" to require the BOP

to "ensure that a prisoner serving.a term of imprisonment spends a portion

ef tbiejfj naj months, under conditions that will afford that prisoner a

reasonable opportunity to adjust to and prepare for the reentry of that

prisoner into the community", and "that placement in an RRC ... is

determined on an individual basis." 18U.S.C.3624(c)(1) and (c)(6)(B).

Therefore, because RRC is a type of 'place of imprisonment' governed by

18U. S.C.3621(b), the consideration f/cjr RRC is also goverhetfjby the

individual five factors in 18U. S . C. 362'lJjb) .

Nevertheless, the BOP employs its RRC Removal Policy -a categorical

exclusion derives from an irrebuttable presumption that all federal

alien prisoners with a final order of removal like Mr. Cheng, will escape

once being placed

an RRC- to deprive Mr. Cheng's liberty interest

i of Jped ng__cpns,idgred/ej lgjjjle__f or_PRC without the requried due process of

law.

Indeed, this Court has held that using a categorical exclusion that

deploys/derives an irrebuttable presumption violates due process right.

See, e.g., Truner v. Dep't of Employment Security, 423 U.S. 44 (1975);

3. If a classification would be invalid under the equal protection clause,

it is also inconsistent with the due process requirement of the Fifth

Amendment. See, e.g., Johnson v. Robinson, 415 U.S. 361, 364, n.4.,,94 S.

Ct. 1160, 1164,1.39 L. Ed. 2d 389, 396 (1975): Bolling v. Sharpe, 34:7 U.S.

497, 74 S. Ct. 693, 98 L. Ed. 884 (1954).

Cleveland Bd. of Educ v. LaFleur , 414 U.S. 63-?. <1974); Vlandis v. Kline

412 U.S. 441 (1973); Stanley v. Illinois, 405 U.S. 645

1972), just as

the BOP's RRC Removal Policy here..

Accordingly, BOP'sj RRC Removal Policy violates Mr. Cheng's

Due Process Right and should be invalidated.

III. THE EIGHTH CIRCUIT'S DECISION IS IN CONFLICT WITH THE STATUTE, ITS

PRECEDENT, AND OTHER CIRCUITS!'! OPINIONS.

As explained above in II, supra, the statute uses the mandatory

word 'shall' in 18U.S.C.3624(c)(1) and (c)(6)(B). Therefore, numerous

courts have held that the BOP has no discretion to delay or refuse

transfer a prisoner to pre-release cus tody (whlchj includes RRC), because

such transfer is mandatory. See, e.g., Doe v. Federal Bureau of Prison^;

2024 U.S. Dist. LEXIS 19755

2024 WL 455309, at *1-4 (S.D.N.Y. Feb 5,

2024) (transfer to pre-release custody was required despite the

prisoner s participation in the witness protection program); Ramirez v.

Philips, 2023 U.S. Dist. LEXIS 258778 (E.D. Cal, Dec 22, 20203) (agreeing

with interpretation that transfer to pre-release custody is mandatory);

Komando v. Luna, 2023 U.S. Dist. LEXIS 11477 (D.N.H. Jan 13, 2023)

(transfer to P1"®-lease custody was required despite outstanding

detainer), R&R adopted, 2023 U.S. Dist. LEXIS 19054 (Feb 6, 2023); Sierra

v. Jacquez, 2022 U.S. Dist. LEXIS 234525 (W.D. Wash, Dec 27, 2022) ,1jJ

(transfer to pre-release custody required depsite outstanding immigration

detainer), R&R adopted, 2023 U.S. Dist. LEXIS 6938 (Jan 13, 2023); Jones

v. Engleman, 2022 U.S. Dist. LEXIS 185635 (C.D. Cal, Sept 7, 2022)

(transfer to pre-release custody is mandatory despite pending charges and

argument that the prisoner is a flight risk), R&R adopted in relevant

part, 2022 U.S. Dist. LEXIS 185029 (Oct 7, 2022).

Indeed, the present judgement/opinion from the '^Eighth Circuit

Court of Appeals of affirming the BOP's RRC Removal Policy, is in conflict

with its precedent and authoritive opinions of other Circuit Courts. See>

e.g., Levine v. Apker, 455 F. 3d 71, 87 (2d Cir. 2006); Woodfall v. Fed.

Bureau of Prisons, 432_E. 3d 235, 244 (3d Cir. 2005); Elwood v. Jeter,

386 F. 3d 842

847 (8th Cir. 2004); Fults v. Sanders, 442 F. 3d 1088

(-8th Cir. 2006); Rodriguez v. Smith, 541 F. 3d 1180 (9th Cir. 2008);

Wedelstedt v. Wiley, 477 F. 3d 1160, 1161-62 (10th Cir. 2007).

Finally, discriminating federal alien prisoners with a final order

§f ;removal will defeat Congress

intention of reforming criminal justice

system when it passed the SCA, and in fact increases the recidivism risk

of federal alien prisoners with a final order of removal (for feeling

discriminated and thus has no respect for the law), to the detriment

of the society as a whole.

CONCLUSION

WHEREFORE, for the reasons set forth herein, Mr. Cheng respectfully

requests that this Court grants this Petition for Certiorari.

Dated: Rochester, Minnestoa

j/ 2024

Respectfully Submitted,

Sheng-Wen Cheng (pro Se)

No . 05261-509

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