Petition for Writ of Certiorari — Sheng-Wen Cheng, Petitioner v. United States

Supreme Court briefDec 31, 2024

Ask Donna

What actually matters in this document.

Text

,_« r n P n

AQTi'.ui f ".!■ Kuv

f\\ 0 ii. ■ L:

No.

•IN THE

SUPREME COURT QF THE UNITED 55’TATES

OEC 3 i 2024

mmss»

SHENG-WEN CHENG, individually and on

behalf of a class of all others

similarly situated,

PETITIONER

vs.

UNITED STATES OF AMERICA,

RESPONDENT,

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR TEIE SECOND CIRCUIT

PETITION FOR CERTIORARI BEFORE FINAL JUDGEMENT.

Sheng-Wen Cheng

No. 05261-509

Federal Medical Center

PMB 4000

Rochester.5 MN, 55903

4 -

QUESTION-S PRESENTED FOR. REVIEW

1. Does Respondent United States of'America's ("the government”)

policy and the First Step Act ("FSA") statute provision, which

bar federal alien prisoners with a final order of removal from

applying FSA.time credits to their sentences, violate the

Equal Protection and Due-Process Clause of the Fifth Amendment?

(

(•

LIST OF PARTIES-IN COURT.BELOW

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

Petitioner.

2. United 5>tates of America, Respondent.

' A

LIST OF- CASES DIRECTLY

RELATED TO THIS CASE

1. Sheng-Wen Cheng v. United States of America

No.22-cv-10536 (VSB)

U.'S. Distict Court'for the Southern District of New York

Judgement ■. entered on March 27.> 2024.

2. Sheng-Wen Cheng v. United States of America

• No.24-1131 ■

U.S. Court of Appeals for the Second Circuit

Notice of Appeal filed on April 5, 2024.

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOP REVIEW..............................

LIST OF PAPTIES IN COUPT BELOW..............................

list of cases directly related to this case...

table of authorities cited............................

OPINIONS AND ORDERS IN CASE.'................................

JURISDICTION STATEMENT..................... .......................

CONSTITUTION AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE..............................................

4 •

EXISTENCE OF JURISDICTION BELOW

ARGUMENT FOR ALLOWANCE OF WRIT

I. THE GOVERNMENT'S. POLICY AND FSA STATUTE VIOLATE

EQUAL PROTECTION...'............................................... ........

7 •

II. THE GOVERNMENT'S POLICY AND FSA< STATUTE'VIOLATE

DUE PROCESS......................'. ............................................

CONCLUSION

CERTIFICATE OF SERVICE

APPENDIX

iii

TABLE OF AUTHORITIES CITED

PAGE(S)

CASES:•

Board of Pardons v. Alien

482 U.S. 369, 377 (1987)_

Bolling v. Sharpe

347 U.S. 497, 499 (1954)________ ;________________'

Carrington v. Rash

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

Chi-Thon Ngo v. INS

192 F. 3d 390 (3d Cir. 1999)__________________ '

City of Cleburne v. Cleburne Living Ctr, Inc

473 U.S. 432, 439 (1985)____________

■__________

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)_

Examing Board of Engineers, Architects, and Surveyors v.

Flores de Otero

426 U.S. 572. 601-06, 96 S. Ct. 2264, 49 L. Ed. 2d 65 (1976)

Goldberg v. Kelly

397 U.S. 254, 267, 90 S. Ct. 1011 j 25 L. Ed. 2d 287 (1970).

12 '

Graham v. Richardson

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

In re Griffiths

413 U.S. 717 , 721-22, 729, '93 S. Ct. 2851, 37 L. Ed. 2d 910 (1973.18

Johnson v. Robinson

•415 U.S. 361 , 396 (1975)_______________

Jones v. Engleman

2022 U.S. Dist. LEXIS 185029 (C.D.- Cal 5 Oct 7, 2022).

Lopez v. Davis

531 U.S. 230, 241, 121 S. Ct. 714

148 L. Ed. 2d 635 (2001}

Mass. Bd. of Pet. v. Murgie

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

. 7

Mathews v. .Eldridge

424 U.S. 319; 332, 96 S. Ct.- 893, 47 L. Ed. 2d 18 (1976)

Nyquist v. Manclet

432 U.S. 1, 3-5, 92 S. Ct. 2120,.53 L. Ed. 2d 63 (1977)____

3,10

O'Bryan v. Cox

2021 U.S. Dist. LEXIS 167316 (D. S.D. Sept 1, 2021)_________

Patel v. Zemski

275 F. 3d 299 (3d Cir. 2001)__________________________________ _

Plyler v. T)oc±

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

Peed v. Peed

404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971)______ _

Pemirez v. Philips

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

Poyster Guan Co v. Virginia

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

Sandin v. Conner

515 U.S. 472, 483-84 (1995)_______ !---------------------------------------------

•Schlesinger v. Wisconsin

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

Stanley v. Illinois

405 U.S. 645 (1972)__________________________________ ______

Sugarman v. Dougall

413 U.S. 634,' 37 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)

Takahashi v. Fish and Game Commission

334 U.S. 410, 92 L. Ed. 1478, 68 S. Ct. 1138 (1948)

Turner v. Dep't of Employment Security

423 U.S. 441 (1973) •

_____________________ !------------United States v. Oprea

2023 U.S. Dist. LEXIS 188648 (D.N.H. Oct 20, 2023)

Vlandis v. Kline

412 U.S. 441 (1973)

Weaver v,. Graham

450 -U.S. 24, 28, 67 L. Ed.-.2d 17, 101 S

Ct.. 960 (1981)

Wolf v. McDonnell

418 U.S. 539, 555-58 (1974).

YickWo v. Hopkins

118 U.S. 356, 6 S. Ct. 1064 5 30 L. Ed. 220 (1886^

Zadvydas v. Davis

533 U.S. 678, 150 L. Ed. 2d 653, 121 S. Ct. 2491',' 2501 (2001)

OTHER AUTHORITIES:

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

18U.S.C.3632(d)(4)(A)(i)_

18U.S.C.3632(d)(4)(A)(ii),

18U.S.C.3632(d)(4)(C)____

-18U.S.C.3632(d)(4)(E)(i)_

4,12

OPINIONS AND ORDERS-IN CASE

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

the Southern District of New York is available at Sheng-Wen Cheng v.

United States of America, 2024 U. S .- Dis t. LEXIS 56968 (S.D.N.Y. Mar 26,

2024), and is reported as Appendix.

JURISDICTION STATEMENT

After the District Court dismissed Mr. Cheng's Complaint on March

-27

2024, Mr. Cheng filed a notice of appeal on April 5, 2024. The appeal

is currently still pending in the U.S. Court of Appeals for the

Second Circuit.

The jurisdiction of this Court is involved under 28U.S.C.1254(c)

and Rule 11 of the Rules of this Court, for the present petition for

.certiorari before final judgement.

;•

CONSTITUTIONAL AND STATUTORY PBOVISIONS INVOLVED

The Fifth Amendment to the United States Constitution

provides

in pertinent part:

No person shall ... be deprived of life libertv

without due process of law.

’

or property,

The Fourteenth Amendment to the United States Constitution

provides,

in pertinent part:

No state ....

shall make

enforce any law which ., . denv to anv

person within its jurisdiction the equal protection of the 'laws.

18U.S.C.3632(d)(4)(A)(i) provides as follows:

A prisoner, shall earn 10 days of the credits for every 30 days

of successful participation in evidence-based recidivism reduction

program or productive activities.l8U.S.C.3632(<i)(4)(A)(ii) provides as follows:

A prisoner determined by the Bureau of Prisons to be at a.minimum

or low risk for recidivating, who, over 2 consecutive assessments,

Pas not increased their risk of recidivism, shall earn an

additional 5 days of time credits for every 30 days of successful

participation in evidence-based recidivism reduction program or

productive activities.

18U.. 55. C. 3632(d) (4) (c) provides as follows:

Application of time credits toward, pre-release custody or

supervised release. Time credits earned under this paragraph by

prisoners who successfully participate in recidivism reduction,

program or productive activities shall be applied toward time in

pre-release custody or supervised release. The Director of the

Bureau of Prisons shall transfer eligible prisoners,.as determinedunder section 3624(g), into pre-release custody or supervised

l6J.63.S0*

18U.S.C.3632(d)(4)(E)(i) provides as follows:

.In general. A prisoner is ineligible to apply time credits under

subparagraph (c) if the prisone?

the subject of a final ordpr

of removal under any provision of-is

.the immigration -laws"

♦

• *

;

STATEMENT OF THE CASE

On August 11, 2021

Mr. Cheng was convicted of multiple fraud

charges, and was sentenced to a term of 72 months imprisonment, along

with a judicial order of removal.'-See United States v. Cheng

No.21-cr-

261 (KA) (S.D.N.Y. Aug 11, 2021).

On December 21

2018

FSA became law. The FSA aims to improve the

criminal justice system by reducing the. prisoners

recidivism,

reducing the size of the fedeal prison population, and providing sentence

reduction to prisoners through the accumulation of earned time credits.

To achieve its goal, the FSA is designed to provide fedeal prisoners

who have completed qualifying evidence-based recidivism reduction

program and productive activities, to earn and to apply FSA credits

toward earlier placement in pre-release custody or transfer to

supervised release earlier than their original release date.

However, as relevant here, a prisoner is ineligible to apply any

FSA credits toward his or her sentence, "if the prisoner is the subject

of a final'order of removal" under immigration law, 18U.S.C.3632(d)(4)

(E)(i). As a result, because Mr. Cheng and other federal alien prisoners

who have a final order of removal ("Removal Class") are the subject of

different type of final order of removal under the immigration law,

they cannot apply any FSA time credits toward their sentences.

Therefore, Mr. Cheng commenced an action at the U.S. District Court

for the Southern District of New York, and filed a motion for preliminary

injunction, requesting the.District Court to invalidate or to strike

down the' government's policy.and the provision of FSA statute that bar

the Removal Class from applying FSA credits to their sentences as soon

as practicable, as it violates the Equal Protection and Due Process

'Clause of the Fifth Amendment, and is causing irreparable harms to

Mr. Cheng and the Removal Class. Nevertheless, the District Court

disagreeded and dismissed Mr. Cheng's complaint, and denied Mr. Cheng's

motion for preliminary injunction as moot (R.Doc.85). Mr.Cheng then

failed a timely notice of appeal on April 5 > 2024 (R. Doc.86).

Along with the appeal, Mr. Cheng also filed an injunction

pending appeal; however, the motion for the injunction was denied by

the Circuit Court on October 21

2024 for procedural issue (Dkt.54.1).

Mr. Cheng's current appeal is still pending in the United States

Court of Appeals for the Second Circuit since April 5, 2024.

EXISTENCE OF JURISDICTION BELOW

The United States District Court for the Southern District.of

New York.had jurisdiciton under 28U . S . C . 1331.

... .

The United States District Court's final judgement was duly

appealed to the United States Court of Appeals for the Second Circuit,

which had and has jurisdiction over the appeal under 28U.S.C.1291.

ARGUMENT FOR ALLOWANCE OF WRIT

Review of this case before judgement in the Court of Appeals is

required to permit expeditious ,and comprehensive review of public

importance as to whether the government's policy and the provision of

FSA violate the Equal Protection and Due Process Clause of the

Fifth Amendment.

Furthermore, the constitutional question? of the government

policy and FSA statute, presented in this petition is their first time

being considered in front of this Court. Most importantly, any decision

from this Court can provide immediate release to many Removal Class

prisoners, or can cause, more potential crimes being committed by

Removal Class prisoners in the future-.

Accordingly, in the public interests and in the interests of

orderly and speedy judicial administration, this writ for certiorari

beofre final judgement should-be granted.

I. THE GOVERNMENT’S POLICY AND FSA STATUTE VIOLATE EQUAL PROTECTION.

The Equal Protection Clause requires "all persons similarly <

situated should b& treated alike." City of Cleburne v. Cleburne Living

Ctr, Inc, 473 U.S. 432

439 (1985). 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 vi. 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 law 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 la^? or

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 csae, federal alien prisoners who have a final order of

removal

is a suspect br quasi-suspect class that warrant a strict

scrutiny standard, because this classification by the government is

premised on aliens

inability to vote and their criminal conviction

history; and thus their impotence in the political process, and the

long history of invidious discrimination and bias against them. See

Takahashi v. Fisli and Game Commission, 334 U.S. 410, 92 L. Ed. 1478,

68 S. Ct. 1138 (1948).

Also, laws or policies that single out a particular group -such as

the government's policy and the provision of FSA here-.for disparate

treatment, are presumptively unconstitutional absent a showing that

the classification was necessary to fulfill a constitutionally

"permissible" and "substantial" purpose. In re Griffiths

721-22, 729, 93 S. Ct. 2851

413 U.S. 717,

37 L. Ed. 2d 910 '(1973). Indeed

the fact

that the challenged policy and statute here "is not an absolute bar

[against all aliens] does not 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).

Therefore,.under the equal protection analysis, the government s

policy and FSA clearly fail the equal protection requirement. As stated

in Mr. Cheng's amended complaint, multiple motion briefs,and a

supporting declaration, the government's policy somehow alios federal

alien prisoners with an immigration detainer but without a final order

of removal, and federal alien prisoners who receive treaty-transfer, to

apply FSA time credits to their sentences (B.Docs.31,59,64,71, and 72).

However, this distinction lacks any reasoning, as all federal alien

prisoners -with or without a final' order of removal- have the same,

flight risk, were sentenced under the same federal law and federal

guideline* and do not get.deported until the completion of their

criminal sentences (B.Docs.31 and 58).

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

2 A prisoner's eligibility for reduced sentence is a significant factor

entering in both the defendant's decision to plea bargm and the

judge’s calculation of the sentence to be imposed. See Weaver v- Graham

45.0 U.S. 24, 28, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981).

Indeed, federal alien prisoners who currently only have an

immigration detainer, most certainly wi^l receive a final order of

removal and be deported from the United States once they are in

- 4

immigration custody because of their criminal convictions. See 8 U.S.C.

1227(a)(2). Therefore, it is unreasonable that the government's policy

and FSA would only bar the' Removal Class from applying FSA time credits

to their sentences.

Most importantly, even federal alien prisoners who receive

treaty-transfer, which means that they will be deported/removed from

the United States

can still apply FSA time credits to their sentences.

(R.Docs . 31, 58, and 59). In another words, federal alien prisoners who

receive treaty-transfer, face the same fate of removal/deportation as

the Removal .Class, and yet they are able to apply FSA time credits to

their sentences. As a result, the government's policy and FSA Clearly

have no legitimate justification and violate equal protection.

Moreover, the District Court's finding that the government's

policy ''[sjerves the legitimate purpose of reducing the risks that

aliens Facing deportation will flee" (R.Doc.84,p.6) is uncomprehending,

since prisons would hold the Removal Class in custody until i-rnmigration

authorities arrive to transfer them to immigration custody. Also

this

type of classification that employs an "irrebuttable presumption" (in

this case, that all Removal Class prisoners would flee with complete

certainty), has been found by this Court to violate equal protection.

If a classification is invalid under the equal protection, ...

it is also

inconsistent with the due process clause of the Fifth Amendment. See,

0tg#

Johnson v. Robinson, 415 U.S. 361, 396 (1975); Bolling v. Sharpe,

347 U.S. 497 884 (1954).

See

e.g., Schlesigner v. Wisconsin, 270 U.S. 230, 46 S.- Ct.- 260

70 L.

Ed. 557 (1926); Carrington v. Bush, 380 U.S.

81, 85 S. Ct. 775, 13 L. Ed.

2d -675 (1965); Boyster Guanu Co.'v.'Virginia, 258 U.S. 412, 40 S. :Ct. ’

560, 64 L. Ed. 989 (1920); Beed v. Beed

404 U.S. 71, 92 S. Ct. 251, 30

L. Ed. 2d 225 (1971); Sugarman v. Dougall, 413 U.S. .634, 37' L.

Ed. 2d

853, 93 S. Ct. 2842 (1973).

Finally, the differential treatment by the government's policy

and the F5?A is clearly based on impermissible consideration that was

demonstrated in the District Court's finding that all federal alien

prisoners with a final order of removal (Bemoval Class) should be

punished "more severely than others*■(E.Doc.84,p.7). This is a pure

discrimination based on alienage, because when all federal prisoners

got charged with federal crimes and later got sentenced, they all face

the same advisory sentencing guideline and mandatory minimum under

federal laws, and yet only the Bemoval Class sire required to serve

more percentages of their sentences in prison".' Even though Congress

may make rules as to aliens that would be unacceptable if applied to

citizens, that power is not unlimited, as the Congress cannot violate

the Constitution. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 150 L. Ed.

2d 653, 121 S. Ct. 2491, 2501 (2001); Dougall, 413 U.S. 634 (1973); In

re Griffiths

413 U.S. 717 (1973); Nyquist

432 U.S. 1 (1977); Examing

Board of Engineers, Architects and Surveyors v. Flores de Otero, 426

U.S. 572

601-06, 96 S. Ct. 2264, 49 L. Ed. 2d 65 (1976).

4_. At least a District Court has found this would be detrimental to the

society as a whole as this would .discourage Removal Class prisoners to

rehabilitate themselves. See United States v. Oprea, 2023 U.S. Dist.

LEXIS 188648 (D.N.H. Oct 20, 2023).

5 - The District Court and the government also failed to explain why

federal alien prisoners who were extradited from other countries and thushave a final order of removal, or who voluntarily to be removed such as

Mr. Cheng here, should be punished more'severely' than‘others.

Accordingly, the government's policy and the FSA statute that

bar the Removal Class from applying FSA credits to their

sentences

violate the Equal Protection Clause of the Fifth Amendment.

II. THE GOVERNMENT'S POLICY AND FSA STATUTE VIOLATE DUE PROCESS.

, The Due Process Clause of the Fifth Amendment prohibits the

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

property interests 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 (2002). A liberty interests protected by the Fifth Amendment

may arise from two sources: the Constitution or a federal statute.

See , e. g.

Swarthout v. Cooke

562 U.S. 216, 131 S. Ct. 859, 862, 178

L. Ed. 2d 732 (20L1); Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct.

893, 47 L. Ed. 2d 18 (1976).

At present case, FSA clearly construed liberty interests of

allowing eligible federal prisoners to earn and to apply FSA time

credits in 18U.S.C. 3632(d)(4)(A)(i), (ii), and 3632(d)(4)(c), by

using the word "shall" in the statute. See Lopez v. Davis, 531 U.S. 230,

241

121 S. Ct. 714,- 148 L. Ed. 2d 635 (2001) (Congress uses "shall"

to impose discretionless obligation); see also Remirez v. Philips, 2023

U.S., Dist. LEXIS 228778 (E.D. Cal, Dec 22, 2023);. Jones v. Engleman,

2022 U.S. Dist. LEXIS 185029 (C.D. Cal, Oct 7, 2022); O'Bryan v. Cox,

2021 U.S. Dist. LEXIS 167316 (D. S.D. Sept 1, 2021)..

Therefore, whenever there is a liberty interest, the liberty

interest cannot be denied/deprived based on a categorical exclusion «

: without any notice. See, e-g-'

Gqldberg v. Kelly, 397 U.S. 254, 267, 90

S . C t. 1011, 25 L. Ed. 2d 287 (1970) (Holding that timely and adequate

notice of the reasons underlying the deprivation of a right guaranteed'

by the Due Process Clause is a lay requirement of the Due Process); Patel

v. Zemski, 275 F. 3d 299 (3d Cir. 2001^) (Aliens should be afforded the

opportunity for an individual hearing at which they can show that they

do not pose a flight risk or danger to the community); Chi Thon Ngo v.

INS, 192 F. 3d 390 (3d Cir. 1999) (Process due even to deportable and

excludable aliens require an opportunity for an evaluation of the

individual s current threat to the community and his flight risk). And

in prisoner's particular situation, in order for a prisoner to be

denied the same liberty interest that other prisoners receive, there

must be an individual determination. See, e.g., Wolf v. McDonnell,

4-18 U.S. 539, 555-58 (1974); Sandin v. Conner

515 U.S. 472, 483-84

(1995); Board of Pardons v. Allen, 482 U.S. 369, 377 (1987).

As a result, because the present categorical exclusion by the

government's policy and the FSA statute has an irrebuttable presumption

that all Removal Class prisoners would flee with absolute certainty,

as explained above in I, supra, and completely disregard any individual

determination'and situation required by the Due Process of Law, the

government's policy and FSA statute violate the Due Process Clause of

the Fifth Amendment. See, e.g., Turner v. Dep't of Employment Security,

423 U.S. 44 (1975); Cleveland Bd. of Educ v. Lafleur, 414 U.S. 632

6. It is worth noted that the challenged government policy and the

provision of FSA statute here do- not. _bar the Removal Class prisoners

from earning (emphasized added) FSA-^&edits. See 18U . S . C .3£_3_2-(-d) (4) (e) ( i) .

(1974); Vlandis v. Kline, 412 U.S. 441 (1973);- Stanley v. Illinois.,

405 U.S. 645 (1972).

•t

, CONCLUSION

■WHEREFORE,- for the reasons set forth herein, Hr. Cheng

respectfully requests that this Court grants this Petition for

Certiorari Before Final Judgement.

Dated: Rochester. Minnesota

0 f Ustfvlv-r

, 2024

Respectfully Submitted,

Sheng-Wen Cheng

No, 05261-509

Federal Medical Center

PMB 4000

Rochester, MN, 55903

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.