Rational Basis Review for Alienage-Based Good Time Credit Exclusion Under the First Step Act

Introduction

The Second Circuit’s decision in Cheng v. United States clarifies the constitutional standards applicable when Congress distinguishes between citizen and noncitizen prisoners for eligibility for “good time” sentence-credit under the First Step Act of 2018 (FSA), 18 U.S.C. § 3632(d)(4). Sheng-Wen Cheng, a Taiwanese national convicted of COVID-19 relief fraud and subject to a final order of removal, challenged § 3632(d)(4)(E)(i) on Equal Protection, Due Process, and Administrative Procedure Act grounds. He argued that the statute unlawfully discriminates against noncitizens and deprives him of a vested interest in sentence reduction credits.

Summary of the Judgment

By a per curiam opinion, the Second Circuit affirmed the district court’s dismissal. The panel held:

The FSA’s alienage-based exclusion of noncitizens under final orders of removal from earning time credits does not trigger heightened scrutiny under the Equal Protection component of the Fifth Amendment, because federal alienage classifications are generally subject only to rational basis review.
Even under that deferential standard, the statute has a rational basis in ensuring that noncitizens who are to be removed serve their full sentences and do not abscond.
No protected liberty or property interest in good time credits arose under the FSA to support a Due Process Clause claim.
Cheng’s APA claim failed for lack of any alleged impermissible agency action.

Analysis

Precedents Cited

Mathews v. Diaz, 426 U.S. 67 (1976): Held that federal alienage classification for eligibility in a public benefits program is subject to rational basis review, not strict scrutiny.
United States v. Lue, 134 F.3d 79 (2d Cir. 1998): Confirmed that heightened scrutiny applies only when state or local governments use alienage classifications to disadvantage foreign nationals; the federal government typically enjoys greater leeway.
Yuen Jin v. Mukasey, 538 F.3d 143 (2d Cir. 2008): Reinforced rational-basis treatment of federal distinctions among noncitizens.
Jankowski-Burczyk v. I.N.S., 291 F.3d 172 (2d Cir. 2002): Described the “reasonably conceivable state of facts” test for rational basis.
Demore v. Kim, 538 U.S. 510 (2003): Upheld mandatory detention of certain deportable noncitizens, noting governmental interest in securing removal.
Skelly v. I.N.S., 168 F.3d 88 (2d Cir. 1999): Addressed rational basis for detention of noncitizens pending removal.
Wolff v. McDonnell, 418 U.S. 539 (1974): Recognized that statutes creating a right to good-time credit may give rise to a protected liberty interest.
Victory v. Pataki, 814 F.3d 47 (2d Cir. 2016): Clarified that a “legitimate claim of entitlement” is required for a protected interest, distinguishing expectation from entitlement.
F.C.C. v. NextWave Pers. Commc’ns, Inc., 537 U.S. 293 (2003): Set forth the APA’s prohibition against “arbitrary and capricious” agency action under 5 U.S.C. § 706(2)(A).
Vill. of Willowbrook v. Olech, 528 U.S. 562 (2000): Defined “class of one” equal protection claims, though Cheng abandoned this theory on appeal.

Legal Reasoning

Equal Protection. The Court first determined that federal alienage classifications generally receive rational basis review, not strict or intermediate scrutiny. It relied on Mathews v. Diaz and Lue to show that federal legislative decisions regarding noncitizens—particularly those with final removal orders—do not trigger the “searching scrutiny” reserved for state actions disadvantaging aliens. Under rational basis review, the Court asked whether any plausible governmental interest could justify the distinction; it concluded that ensuring removal-bound noncitizens serve full sentences and discouraging flight from custody easily satisfies that test.

Due Process. Cheng’s due process claim rested on an alleged statutory entitlement to good time credits. Citing Wolff and Victory, the Court explained that a protected liberty interest requires a statute to create a “legitimate claim of entitlement,” not merely a hope. The FSA’s unambiguous disqualification of certain noncitizens from earning credits left no entitlement, so no protected interest arose.

Administrative Procedure Act. Cheng offered no allegations of any specific Bureau of Prisons rule-making or adjudicatory action that was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” under 5 U.S.C. § 706(2)(A). In the absence of such a challenge, his APA claim could not stand.

Impact

This decision cements the principle that federal classifications based on alienage for purposes of sentence-credit eligibility under the FSA—and likely other federal statutes—are reviewed under the deferential rational basis standard. Prisoners and advocates will need to show either an absence of any conceivable policy justification or actual arbitrariness in agency implementation to prevail on similar challenges. The ruling also underscores that statutory language clearly denying credits leaves no due process claim, and that APA challenges require more than a request for different policy outcomes.

Complex Concepts Simplified

Alienage Classification: A law’s distinction between citizens and noncitizens.
Rational Basis Review: The lowest level of constitutional scrutiny; the government need only show that a law is rationally related to a legitimate interest.
Heightened Scrutiny: A stricter test (intermediate or strict) requiring more persuasive justification, used for suspect classes or fundamental rights.
Protected Liberty Interest: A right created by statute or regulation that gives rise to a legitimate claim of entitlement, triggering procedural due process protections).
Administrative Procedure Act (APA): Federal law governing how agencies propose and establish regulations, and providing for judicial review of agency actions.

Conclusion

Cheng v. United States establishes that the First Step Act’s exclusion of noncitizens with final removal orders from earning good time credits is constitutional under the Fifth Amendment’s Equal Protection component, as it survives rational basis review; that no protected due process interest arises when a statute clearly denies credits; and that unadorned policy complaints do not suffice under the APA. The decision provides clarity for future litigants and underscores the broad discretion Congress and the Bureau of Prisons possess in structuring sentence-reduction incentives for federal inmates.