Hinds v. Lynch

790 F.3d 259

Rogelio Blackman HINDS, Petitioner

v.Loretta E. LYNCH, Attorney General of the United States^* Respondent.

No. 13–2129.

United States Court of Appeals, First Circuit.

June 24, 2015.

D. Zachary Hudson, with whom Bancroft PLLC was on brief, for petitioner.

Dror Ladin, Judy Rabinovitz, ACLU Foundation Immigrants' Rights Project, Matthew R. Segal, and ACLU Foundation

of Massachusetts on brief for American Civil Liberties Union Foundation Immigrants' Rights Project and The American Civil Liberties Union of Massachusetts, amici curiae.

Beth Werlin and American Immigration Council on brief for American Immigration Counsel and the Post–Deportation Human Rights Project, amici curiae.

Sarah H. Paoletti, Diepiriye A. Anga, Mariam Khokhar, Law School Representatives and Transnational Legal Clinic, University of Pennsylvania Law School on brief for International and Human Rights Law Professors and Clinicians, amici curiae.

Shayana Kadidal and Sunita Patel on brief for The Center for Constitutional Rights, amicus curiae.

Aimee J. Carmichael, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, with whom Stuart F. Delery, Assistant Attorney General, Civil Division and Jennifer L. Lightbody, Senior Litigation Counsel, Office of Immigration Litigation, for respondent.

Before HOWARD, Chief Judge, THOMPSON, Circuit Judge, and LAPLANTE,^** District Judge.

Opinion

HOWARD, Chief Judge.

In this case, we must determine whether the Supreme Court's description of deportation in Padilla v. Kentucky as “an integral part ... of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes,” 559 U.S. 356, 364, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), has altered the longstanding notion that removal is non-punitive and thus does not implicate the Eighth Amendment's prohibition on cruel and unusual punishment or related constitutional protections. Petitioner Rogelio Blackman Hinds was convicted of a felony requiring his removal, and the Board of Immigration Appeals (“BIA”) affirmed an order that he be removed. Blackman challenges the BIA's decision by arguing that, because Padilla described deportation as a “penalty,” his removal violates the Constitution unless a court conducts an individualized assessment to determine whether his order of removal is a proportional punishment relative to his underlying criminal conviction. As explained below, we conclude that Padilla has not signaled a break from long-settled law. Thus, we deny Blackman's petition for review.

I.

Blackman, a sixty-year-old native of Panama, has been a lawful permanent resident of the United States since 1975. In April 1994, after a jury trial, he was convicted by a federal court in New York on ten drug and firearm charges. Blackman was sentenced to twenty-five years imprisonment, but received credit for good conduct during his incarceration and was released in 2012. Upon his release, the Department of Homeland Security promptly issued Blackman a Notice to Appear in removal proceedings, charging him with removability as an alien convicted of an “aggravated felony” drug trafficking crime. See 8 U.S.C. §§ 1101(a)(43)(B) ; 1227(a)(2)(A)(iii).

Through counsel, Blackman admitted the allegations in the Notice to Appear, but nevertheless denied removability. Seeking no asylum, withholding, or other relief from the Immigration Judge (“IJ”), Blackman's sole ground for denying removability was that his removal would violate his Fifth Amendment right to due process. Although he did not testify, Blackman submitted an affidavit describing various factors that, he claimed, should weigh in his favor and against removal. For example, Blackman indicated that he had served honorably in the United States Marine Corps for four years—enlisting only a few months after his arrival in the United States at age twenty. He and his United States-citizen wife now have four children, and Blackman asserted that his presence in the United States is necessary to help care for their son, who was seriously injured in a 1998 car accident. Finally, Blackman expressed fear that he would be harmed or killed by gang members if removed to Panama. He pointed to a prison beating he had suffered in the United States at the instigation of a co-defendant who now resides in Panama.¹

The IJ concluded that he “lack[ed] authority to consider” Blackman's constitutional challenges. See, e.g., Matter of C–, 20 I. & N. Dec. 529, 532 (BIA 1992) (“[I]t is settled that the immigration judge and [the BIA] lack jurisdiction to rule upon the constitutionality of the [Immigration and Nationality] Act and the regulations.”). Because Blackman asserted no other substantive defense to removal, the IJ ordered him removed. The BIA affirmed on the same ground, and this petition followed.

II.

Consistent with his arguments before the IJ and the BIA, Blackman does not contest that he was convicted of an aggravated felony that renders him removable. Nor has he sought any substantive relief from removal. Thus, in order for us to overturn the BIA's decision, Blackman must show that his removal would be unconstitutional. See 8 U.S.C. § 1252(a)(2)(D).

The Constitution vests Congress with plenary power to set the circumstances under which noncitizens are permitted to enter and remain in the United States. See, e.g., Flemming v. Nestor, 363 U.S. 603, 616, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). In undertaking that responsibility, Congress has at times regulated by reference to an alien's criminal convictions. Pursuant to statute, aliens who commit certain enumerated crimes are automatically removable. What an alien may see as a simple criminal infraction may in fact pose serious consequences for her continued presence in the United States.

In light of this reality, a majority of the Supreme Court held in Padilla that defense counsel in a criminal case provides constitutionally ineffective assistance, and deprives a noncitizen of the Sixth Amendment right to counsel, if she fails to “inform her client whether his plea carries a risk of deportation.” 559 U.S. 356, 374, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Noting that “immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation,” id. at 360, 130 S.Ct. 1473, the Court found it compelling that “deportation is an integral part—indeed sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes,”² id. at 364, 130 S.Ct. 1473 (emphasis added) (footnote omitted).

Padilla dealt only with defense counsel's obligation in a criminal case to apprise a noncitizen defendant of her plea's immigration consequences.³ But Blackman asserts that the Court's description of deportation as a “penalty” has dramatic and far-reaching consequences and has necessarily altered the administrative removal process as well. Placing heavy reliance on Padilla's description of removal as a “penalty,” Blackman argues that the Constitution mandates that an IJ, or this court, assess whether the sting of deportation and its accompanying reentry bar is a proportionate sanction for his underlying criminal conviction. When “those penalties would be disproportionate under the circumstances of the individual case,” Blackman contends that “a lawful permanent resident cannot be removed and barred from re-entry.” In essence, he claims that the equities of an alien's particular case might require that an alien remain in the United States, either temporarily or permanently, despite Congress's statutory mandate that he be removed.

Blackman grounds this argument in two distinct, but (at least in these circumstances) related, constitutional provisions: the Eighth Amendment prohibition against cruel and unusual punishment, and the Fifth Amendment's due process clause. Together, these two clauses impose “substantive limits” on the government's discretion to impose “criminal penalties and punitive damages.” Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 433, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001). In either case, the government exceeds those limits when it imposes a punishment that is “ ‘grossly disproportional to the gravity of defendants' offenses.’ ” Id. at 434, 121 S.Ct. 1678 (ellipses and alterations omitted) (quoting United States v. Bajakajian, 524 U.S. 321, 344, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998) ).⁴

Yet, federal courts have long described removal orders as non-punitive and, therefore, not punishment. As we explain below, we reject Blackman's contention that Padilla heralded a dramatic change in this long-settled view.

A. The Eighth Amendment

Blackman first contends that the Eighth Amendment, which prohibits a punishment “if it is grossly disproportionate to the underlying offense,” United States v. Lyons, 740 F.3d 702, 731 (1st Cir.2014) (internal quotation marks and citation omitted), demands a proportionality inquiry in the removal context.

Despite the close association between criminal convictions and removal, however, for more than a century federal courts have described orders of removal as non-punitive. See, e.g., Fong Yue Ting v. United States, 149 U.S. 698, 730, 13 S.Ct. 1016, 37 L.Ed. 905 (1893) ; see also Reno v. Am.–Arab Anti–Discrimination Comm., 525 U.S. 471, 491, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). When noncitizens are removed because they have committed serious state or federal offenses, Congress has simply determined that those aliens are among the categories of noncitizens who pose a particular concern to the nation's welfare. Mahler v. Eby, 264 U.S. 32, 39, 44 S.Ct. 283, 68 L.Ed. 549 (1924). By referencing a crime as a justification for removing an alien, Congress does not seek to punish an alien either generally or for her particular federal or state offense. Id. Instead, if the government seeks to remove an alien because of “some act the alien has committed,” he “is merely...