Sina Sunday v. Attorney General United States ( 2016 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-1232
_____________
SINA SUNDAY,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_____________
Appeal from the Board of Immigration Appeals
(No. A076-564-640)
Immigration Judge: Hon. Alan A. Vomacka
Argued: January 19, 2016
____________
Before: FISHER, CHAGARES, and BARRY, Circuit
Judges.
(Filed: August 1, 2016)
Keith E. Whitson, Esquire [ARGUED]
Schnader Harrison Segal & Lewis LLP
120 Fifth Avenue, Suite 2700
Pittsburgh, PA 15222
Counsel for Petitioner
Benjamin C. Mizer, Esquire
Carl McIntyre, Esquire
Andrew Oliveira, Esquire [ARGUED]
Sharon M. Clay, Esquire
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 878 Ben Franklin Station
Washington, D.C. 20044
Counsel for Respondent
____________
OPINION
____________
CHAGARES, Circuit Judge.
Sina Sunday petitions for review of an order removing
him from the United States. He unsuccessfully sought a “U
visa” to avoid removal. The Board of Immigration Appeals
(“BIA”) concluded that the immigration judge (“IJ”) lacked
jurisdiction to consider Sunday’s request for a waiver of
inadmissibility regarding his U visa application. We agree
with the BIA. Sunday also argues that his removal is
unconstitutionally disproportionate punishment. Because the
Supreme Court has consistently held that removal is not
punishment, that argument lacks merit as well. We will deny
the petition for review.
I.
Sunday is a native and citizen of Nigeria who was
admitted to the United States in 1995 with permission to
remain for a year. He overstayed and, in 2013, received a
Notice to Appear charging him as removable for overstaying
and for committing certain crimes. An IJ held Sunday was
removable based on his overstaying and on a bail jumping
conviction.
To avoid removal, Sunday applied for a U visa from
the United States Citizenship and Immigration Service
(“USCIS”) (part of the Department of Homeland Security
(“DHS”)). But to obtain a visa, an applicant must be
admissible, and Sunday was inadmissible because he lacked a
valid passport and because of his bail jumping conviction.
Sunday petitioned the USCIS for a waiver of inadmissibility,
but the request was denied based on his criminal record.
Sunday then applied for a waiver of inadmissibility from an IJ
2
(IJs are part of the Department of Justice (“DOJ”)). An IJ
determined that she lacked jurisdiction to consider Sunday’s
request for a waiver. Sunday also argued that his removal
was an unconstitutionally disproportionate punishment, but
another IJ (who inherited the case after the prior IJ retired)
declined to consider that argument, reasoning that IJs should
avoid considering “the possible unconstitutionality of the
effect of the Immigration Act.” Appendix (“App.”) 35.
Sunday was ordered removed by that IJ.
The BIA affirmed both determinations. As to the
waiver of inadmissibility, the BIA reasoned that, per DHS
regulation 8 C.F.R. § 103.2(a)(1), every benefit request made
to DHS must follow the relevant form instructions. And
“[t]he instructions for the Application for Advance
Permission to Enter as Nonimmigrant (Form I-192) state . . .
that an applicant for U nonimmigrant status, if inadmissible,
must file Form I-192 with the USCIS.” App. 21. Thus, the
BIA concluded, waivers regarding U visas are exclusively
within DHS’s authority. The BIA added that it previously
“held that a waiver of inadmissibility [by an IJ] cannot be
granted in deportation, and by analogy, removal proceedings
pursuant to [In ]Matter of Fueyo, 20 I. & N. Dec. 84 (BIA
1989).” App. 21. As to Sunday’s argument regarding
unconstitutional disproportionality, the BIA held that both it
and the IJ lacked authority to rule on the issue. Id. Sunday
timely petitioned for review.
II.
The BIA had jurisdiction to hear Sunday’s appeal
pursuant to 8 C.F.R. § 1003.1(b). We have jurisdiction over
Sunday’s petition pursuant to 8 U.S.C. § 1252(a). We review
legal conclusions of the BIA de novo. Roye v. Attorney Gen.
of U.S., 693 F.3d 333, 339 (3d Cir. 2012).
III.
The questions before us are (1) whether the IJ had
jurisdiction to adjudicate Sunday’s request for a waiver of
inadmissibility and (2) whether Sunday’s removal was
unconstitutionally excessive punishment. The answer to both
questions is no.
3
A.
U visas allow noncitizen victims of certain crimes who
have suffered “substantial physical or mental abuse,” and who
are likely to be helpful in investigating the crime, to remain in
the United States as lawful temporary residents. 8 U.S.C.
§ 1101(a)(15)(U). The decision whether to grant a U visa is
statutorily committed to DHS, and exercised through USCIS.
Only 10,000 U visas are available annually. 8 U.S.C.
§ 1184(p)(2)(A).
A noncitizen who seeks a U visa, but who is
inadmissible for any number of reasons, must obtain a waiver
of inadmissibility in order to become eligible for the visa. 8
C.F.R. § 214.1(a)(3)(i). Sunday is inadmissible due to his
lack of a valid passport and his bail jumping conviction. He
seeks a waiver. It is undisputed that DHS has the authority to
grant a waiver of inadmissibility for the purposes of a U visa
application:
The Secretary of Homeland Security shall
determine whether a ground of inadmissibility
exists with respect to a nonimmigrant described
in section 1101(a)(15)(U) of this title. The
Secretary of Homeland Security, in the
Attorney General’s discretion,1 may waive the
application of subsection (a) of this section
[outlining grounds for inadmissibility] . . . in the
case of a nonimmigrant described in section
1101(a)(15)(U) of this title, if the Secretary of
Homeland Security considers it to be in the
public or national interest to do so.
8 U.S.C. § 1182(d)(14). Sunday sought a waiver from USCIS
and was rejected.
1
The reference to “Attorney General’s discretion” appears to
be an error by the codifier. L.D.G. v. Holder, 744 F.3d 1022,
1025 (7th Cir. 2014); see 8 U.S.C. § 1182 n.4.
4
There is also, however, a separate waiver provision in
8 U.S.C. § 1182(d), which concerns not DHS but the
Attorney General:
[A]n alien . . . who is inadmissible under
subsection (a) of this section [outlining grounds
for inadmissibility] . . . but who is in possession
of appropriate documents or is granted a waiver
thereof and is seeking admission, may be
admitted into the United States temporarily as a
nonimmigrant in the discretion of the Attorney
General. The Attorney General shall prescribe
conditions, including exaction of such bonds as
may be necessary, to control and regulate the
admission and return of inadmissible aliens
applying for temporary admission under this
paragraph.
8 U.S.C. § 1182(d)(3)(A)(ii) (often referred to, as we do
below, by its corresponding designation in the Immigration
and Nationality Act of 1952, Pub. L. No. 82-414, § 212, 66
Stat. 163, 187 (1952)).2 Sunday claims that, under this
provision, the Attorney General — and ultimately, through
delegation, an IJ — has the authority to issue him a waiver of
inadmissibility. We disagree.
Section 212(d)(3)(A)(ii) of the Immigration and
Nationality Act gives the Attorney General the discretion to
grant a waiver of inadmissibility to aliens who are “seeking
admission.” “Admission” is defined as the “lawful entry of
the alien into the United States after inspection and
authorization by an immigration officer.” 8 U.S.C.
§ 1101(a)(13)(A). Accordingly, the phrase “and is seeking
admission” unambiguously indicates that applications for
waivers from the Attorney General are limited to those
2
The statutory language at issue in this case was previously
located in § 212(d)(3)(B) of the Immigration and Nationality
Act. An amendment to the Act in 2005 relocated the
provision in its current form to § 212(d)(3)(A)(ii). See
Emergency Supplemental Appropriations Act for Defense,
the Global War on Terror, and Tsunami Relief, 2005, Pub. L.
No. 109-13, § 104, 119 Stat. 231, 309 (2005).
5
seeking lawful entry. By definition, that group does not
include individuals who have already lawfully entered. See
Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“The
distinction between an alien who has effected an entry into
the United States and one who has never entered runs
throughout immigration law.”). And the succeeding sentence,
which gives the Attorney General “the power to set
conditions on admission for those applying for entry,” also
“demonstrates that the statute’s drafters had in mind a waiver
applicant who is not yet admitted.” Borrego v. Mukasey, 539
F.3d 689, 692 (7th Cir. 2008) (adopting this interpretation).
In addition to this statutory circumscription on the
scope of § 212(d)(3)(A)(ii) waivers, IJs may only “exercise
the powers and duties delegated to them . . . by the Attorney
General through regulation.” 8 C.F.R. § 1003.10(b). And, as
outlined below, DOJ’s immigration regulations restrict the
IJ’s § 212(d)(3)(A)(ii) waiver jurisdiction to instances where
a waiver request was first made to a district director (who is
part of DHS) prior to an individual’s arrival in the United
States.
All aliens who arrive at the United States must be
inspected by immigration officers for admissibility. 8 U.S.C.
§§ 1225(a), (b). Just as with a U visa applicant already in the
United States, arriving aliens who are inadmissible must
obtain a waiver. DOJ regulation 8 C.F.R. § 1212.4(b)
describes the application process for the § 212(d)(3)(A)(ii)
waiver provision at issue in this appeal. The regulation is
entitled, “Applications for the exercise of discretion under
section . . . 212(d)(3),” and provides that an “application for
the exercise of discretion under section 212(d)(3)(B)3 of the
3
It appears that the DOJ immigration regulations have not
been updated to reflect the 2005 relocation of the relevant
provision from § 212(d)(3)(B) to § 212(d)(3)(A)(ii) of the
Immigration and Nationality Act. See supra note 2. The full
subsection (b) of the DOJ regulation is as follows:
(b) Applications under section 212(d)(3)(B).
An application for the exercise of discretion
under section 212(d)(3)(B) of the Act shall be
submitted on Form I–192 to the district director
6
in charge of the applicant’s intended port of
entry prior to the applicant’s arrival in the
United States. (For Department of State
procedure when a visa is required, see 22 CFR
41.95 and paragraph (a) of this section.) If the
application is made because the applicant may
be inadmissible due to present or past
membership in or affiliation with any
Communist or other totalitarian party or
organization, there shall be attached to the
application a written statement of the history of
the applicant’s membership or affiliation,
including the period of such membership or
affiliation, whether the applicant held any office
in the organization, and whether his
membership or affiliation was voluntary or
involuntary. If the applicant alleges that his
membership or affiliation was involuntary, the
statement shall include the basis for that
allegation. When the application is made
because the applicant may be inadmissible due
to disease, mental or physical defect, or
disability of any kind, the application shall
describe the disease, defect, or disability. If the
purpose of seeking admission to the United
States is for treatment, there shall be attached to
the application statements in writing to establish
that satisfactory treatment cannot be obtained
outside the United States; that arrangements
have been completed for treatment, and where
and from whom treatment will be received;
what financial arrangements for payment of
expenses incurred in connection with the
treatment have been made, and that a bond will
be available if required. When the application
is made because the applicant may be
inadmissible due to the conviction of one or
more crimes, the designation of each crime, the
date and place of its commission and of the
conviction thereof, and the sentence or other
judgment of the court shall be stated in the
application; in such a case the application shall
7
Act shall be submitted on Form I–192 to the district director
[again, who is part of DHS] in charge of the applicant’s
intended port of entry prior to the applicant’s arrival in the
United States.” 8 C.F.R. § 1212.4(b) (emphasis added). If an
alien’s admissibility is not clear, the district director also has
the discretion under 8 C.F.R. § 1235.2 to defer inspection to a
later date. This latter regulation, entitled, “Parole for deferred
inspection,” provides that “[r]efusal of a district director . . .
to grant an application for the benefits of . . . section
212(d)(3) or (4) of the Act, shall be without prejudice to the
be supplemented by the official record of each
conviction, and any other documents relating to
commutation of sentence, parole, probation, or
pardon. If the application is made at the time of
the applicant’s arrival to the district director at a
port of entry, the applicant shall establish that
he was not aware of the ground of
inadmissibility and that it could not have been
ascertained by the exercise of reasonable
diligence, and he shall be in possession of a
passport and visa, if required, or have been
granted a waiver thereof. The applicant shall be
notified of the decision and if the application is
denied of the reasons therefor and of his right to
appeal to the Board within 15 days after the
mailing of the notification of decision in
accordance with the Provisions of part 1003 of
this chapter. If denied, the denial shall be
without prejudice to renewal of the application
in the course of proceedings before a special
inquiry officer under sections 235 and 236 of
the Act and this chapter. When an appeal may
not be taken from a decision of a special inquiry
officer excluding an alien but the alien has
applied for the exercise of discretion under
section 212(d)(3)(B) of the Act, the alien may
appeal to the Board from a denial of such
application in accordance with the provisions
of § 236.5(b) of this chapter.
8 C.F.R. § 1212.4(b).
8
renewal of such application or the authorizing of such
admission by the immigration judge without additional
fee.” 8 C.F.R. § 1235.2(d). Together, these regulations
indicate that IJs may only consider those § 212(d)(3)(A)(ii)
waiver requests first made to a district director prior to
arrival.
Sunday argues that DOJ regulation § 1235.2(d) “in no
way limits the authority of [IJs], nor does it even discuss the
jurisdiction of [IJs] generally.” Sunday Supp. Br. 6. We
disagree. The regulation refers to waiver application
“renewal” to, and “authorizing” by, the IJ “without additional
fee.” This language describes consideration by the IJ only
after an application has previously been submitted to the
district director and the fee paid (or waived).
Even if we determined that the statutory waiver
provision or implementing regulations were ambiguous, we
would defer to the BIA’s similar interpretation. See Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837(1984); Soltane v. U.S. Dep’t of Justice, 381 F.3d 143, 148
(3d Cir. 2004) (citing Auer v. Robbins, 519 U.S. 452 (1997))
(requiring deference to agency interpretations of ambiguous
regulations unless interpretation is inconsistent with the
regulation). In In Matter of Fueyo, an alien procured
admission into the country through fraud and, once
discovered, sought a waiver under § 212(d)(3)(B) (which is
now § 212(d)(3)(A)(ii), see supra note 2). 20 I. & N. Dec. at
86. The BIA held that a § 212(d)(3)(B) waiver is unavailable
to an applicant who “already entered the United States” and is
currently in deportation proceedings.4 Id. “By its very
nature, the relief sought can only confer advance permission
for a future entry.” Id. at 87. Citing the predecessor
regulation to the DOJ’s current 8 C.F.R. § 1212.4(b),5 the
4
The process formerly known as “deportation” is now called
“removal.” Fernandez-Vargas v. Gonzales, 548 U.S. 30, 33
n.1 (2006).
5
In 2003, after the Fueyo decision, the functions of the
Immigration and Naturalization Service were transferred from
DOJ to DHS. Homeland Security Act of 2002, Pub. L. No.
107-296, § 402, 116 Stat. 2135, 2177-78 (2002). DOJ
9
BIA recognized that “if an application is denied” for future
entry, “it may be renewed ‘in the course of proceedings
before [an immigration judge] under sections 235 and 236 of
the Act and this chapter.’”6 Id. (quoting 8 C.F.R. § 212.4(b)).
The BIA has additionally outlined this process as it pertains
to § 212(d)(4) waivers, which are also governed by DOJ
regulation § 1235.2(d). See Matter of Kazemi, 19 I. & N.
Dec. 49, 52 (BIA 1984) (holding that IJs “have jurisdiction to
entertain an application for waiver of inadmissibility under
section 212(d)(4) of the Act where an alien renews such
application before an immigration judge in exclusion
proceedings following its initial denial by the [d]istrict
[d]irector”).
The Court of Appeals for the Seventh Circuit decision
upon which Sunday relies, L.D.G. v. Holder, 744 F.3d 1022(7th Cir. 2014), did not consider DOJ’s regulatory scheme.
That court previously held that the “clear” statutory language
renders ineligible for IJ waivers those aliens who have
“already obtained admission.” Borrego, 539 F.3d at 692. In
Borrego, the waiver applicant had been admitted to the
United States based on fraud. Id. at 690. After her fraud was
discovered and removal proceedings commenced, the IJ and
the BIA determined that she was not eligible for a waiver of
inadmissibility under § 212(d)(3)(A)(ii). The Court of
Appeals in Borrego agreed, citing Fueyo and acknowledging
retained certain immigration functions, and the applicable
regulations were separated into DHS and DOJ counterparts.
Aliens and Nationality; Homeland Security; Reorganization
of Regulations, 68 Fed. Reg. 9824, 9824 (Feb. 28, 2003);
Matter of Sesay, 25 I. & N. Dec. 431, 432 n.1 (BIA 2011).
6
Sections 235 and 236 of the Immigration and Nationality
Act dealt with exclusion proceedings. Those provisions have
since been deleted from the statute, see Omnibus
Consolidated Appropriations Act, 1997, Pub. L. No. 104-208,
§ 302-03, 110 Stat. 3009-546, 3009-579 (1996), and replaced
with removal provisions 8 U.S.C. §§ 1225 and 1226, see In re
N-B-, 22 I. & N. Dec. 590, 591 n.1 (BIA 1999). The
references to §§ 235 and 236 nonetheless remain in both the
DHS and DOJ regulations. See 8 C.F.R. §§ 212.4(b),
1212.4(b).
10
that “[t]he statute speaks in terms of a waiver applicant who is
‘seeking admission,’ not one who is already admitted.” Id. at
692.
In L.D.G., however, that court distanced itself from the
Borrego holding. L.D.G. entered the United States illegally
and was placed in removal proceedings. L.D.G., 744 F.3d at
1026-27. She unsuccessfully pursued a waiver of
inadmissibility from USCIS. Id. L.D.G. then turned to the IJ
for a waiver, but both the IJ and the BIA concluded — the
latter relying on Borrego — that the IJ lacked authority to
issue the waiver. Id. at 1027. The Court of Appeals
disagreed, reasoning that Borrego sought a waiver of
inadmissibility to cure her fraudulent admission retroactively,
whereas L.D.G. pursued “forward-looking” relief in the form
of a “new U visa,” which the court held was permissible. Id.
at 1028.
The L.D.G. decision does not alter our conclusion.
The Court of Appeals for the Seventh Circuit did not account
for the limitations DOJ immigration regulations 8 C.F.R. §
1212.4(b) and § 1235.2(d) place on IJs’ waiver authority. We
agree with the Borrego holding that § 212(d)(3)(A)(ii) of the
Immigration and Nationality Act unambiguously limits the
Attorney General’s authority to issue waivers of
inadmissibility to those aliens “seeking admission.” We also
conclude that DOJ’s immigration regulations further restrict
an IJ’s § 212(d)(3)(A)(ii) waiver authority to only those
instances where the alien has applied to a district director
prior to entry.
Sunday was previously admitted into the United States
and overstayed. He therefore cannot seek a waiver of
inadmissibility from an IJ under § 212(d)(3)(A)(ii). The BIA,
therefore, correctly held that it lacked jurisdiction. It is worth
reiterating that this result does not deny Sunday the
opportunity to obtain a waiver of inadmissibility altogether —
his application should be directed to a different government
agency, DHS.
11
B.
Sunday also asserts that his removal violates the
Eighth Amendment’s prohibition on cruel and unusual
punishment and the Fifth Amendment’s guarantee of due
process because removal is an excessive punishment
compared to his conduct and the length of his residence in the
United States.7 He argues, under both constitutional
provisions, for a proportionality analysis that he ascribes to
Supreme Court decisions such as State Farm Mutual
Automobile Insurance Company v. Campbell, 538 U.S. 408(2003). In State Farm, the Court considered three guideposts
in order to determine if a civil punitive damages award was
unconstitutionally excessive under the Fifth Amendment:
“(1) the degree of reprehensibility of the defendant’s
misconduct; (2) the disparity between the actual or potential
harm suffered by the plaintiff and the punitive damages
award; and (3) the difference between the punitive damages
awarded by the jury and the civil penalties authorized or
imposed in comparable cases.” Id. at 418.
We need not apply the State Farm test because the
Supreme Court has also consistently held that removal is not
a punishment for constitutional purposes. Indeed, the Court
has indicated that “[t]he purpose of deportation is not to
punish past transgressions but rather to put an end to a
continuing violation of the immigration laws.” I.N.S. v.
Lopez-Mendoza, 468 U.S. 1032, 1039 (1984); see also
Ingraham v. Wright, 430 U.S. 651, 668 (1977) (“[T]he Eighth
Amendment [is] inapplicable to the deportation of aliens on
the ground that ‘deportation is not a punishment for crime.’”
(quoting Fong Yue Ting v. United States, 149 U.S. 698, 730
(1893))); Harisiades v. Shaughnessy, 342 U.S. 580, 594
(1952) (“‘[N]or is the deportation a punishment; it is simply a
refusal by the government to harbor persons whom it does not
want.’” (quoting Bugajewitz v. Adams, 228 U.S. 585, 591
7
The Eighth Amendment provides that “[e]xcessive bail shall
not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” U.S. Const. amend. VIII.
The Fifth Amendment provides that “[n]o person shall be . . .
deprived of life, liberty, or property, without due process of
law.” U.S. Const. amend. V.
12
(1913))). We have cited the Fong Yue Ting decision in
concluding that the “argument that [deportation] is cruel and
unusual punishment has been resoundingly rejected.” Brea-
Garcia v. I.N.S., 531 F.2d 693, 698 (3d Cir. 1976).
Contrary to Sunday’s arguments, the Supreme Court
has not reversed its longstanding precedents regarding this
issue. Sunday points to Trop v. Dulles, 356 U.S. 86, 103
(1958), where the Court held that the Eighth Amendment
“forbids Congress to punish by taking away citizenship,” as
an indication that removal is punishment as well. However,
that opinion specifically recognized that “[w]hile deportation
is undoubtedly a harsh sanction that has a severe penal effect,
this Court has in the past sustained deportation as an exercise
of the sovereign’s power to determine the conditions upon
which an alien may reside in this country.” Id. at 98. The
Court concluded that its “view of deportation . . . [was]
wholly inapplicable to [Trop’s] case,” which involved
denaturalization imposed as a punishment. Id.Nor did the Supreme Court’s reference to the
“‘penalty’” of removal in Padilla v. Kentucky, 559 U.S. 356,
365 (2010) (quoting Fong Yue Ting, 149 U.S. at 740), in
dicta, change the rule. The Court held there that Padilla’s
attorney should have advised Padilla that pleading guilty to
drug distribution would result in removal. Id. at 360. The
Court described how removal may be a “penalty,” but that “it
is not, in a strict sense, a criminal sanction.” Id. at 365. As
the Court of Appeals for the First Circuit has correctly
articulated about the Padilla decision,
the mere fact that the Court in Padilla held that
a criminal defendant must be adequately
advised about the immigration consequences of
a guilty plea does not similarly indicate that the
consequence is a punitive, criminal one that
may not be imposed unless it is a proportional
sanction relative to the underlying criminal
offense.
Hinds v. Lynch, 790 F.3d 259, 266 (1st Cir. 2015).
13
We have held similarly, also post-Padilla. In Eid v.
Thompson, 740 F.3d 118, 121 (3d Cir. 2014), Eid underwent
removal proceedings and his citizen spouse filed a Petition for
Alien Relative, which the BIA denied. Eid challenged the
denial under, among other things, the Eighth Amendment, but
we concluded that “removal cannot violate the Eighth
Amendment because it is not a criminal punishment.” Id. at
126. Sunday does not distinguish this case, except to
highlight that there was no final removal order at issue in Eid.
That, however, is irrelevant. See id. at 125-26 (“Even
accepting the Eids’ contention that the denial of the Petition
would necessarily result in removal, we are unpersuaded [by
the Eighth Amendment argument].”).
Because both the Supreme Court and this Court
have made clear that removal is not a punishment,
Sunday’s Eighth Amendment claim fails.8
Sunday’s argument under the Fifth Amendment for
“substantive limits on penalties or punishments” like removal,
Sunday Br. 37, lacks merit for the same reason. See State
Farm, 538 U.S. at 417 (holding that Fifth Amendment limits
excessive civil punitive damages awards, which “serve the
same purposes as criminal penalties” (emphasis added)). Nor
has Sunday cited, and we are not aware of, any case
extending the Supreme Court’s analysis in State Farm to
removal proceedings. That is unsurprising given that due
process limitations on punitive damages awards are motivated
by the notion “that a person receive fair notice not only of the
conduct that will subject him to punishment, but also of the
severity of the penalty.” BMW of N. Am., Inc. v. Gore, 517
U.S. 559, 574 (1996). Removal, of course, is a binary
8
Other Courts of Appeals agree with our conclusion. See,
e.g., Hinds, 790 F.3d at 261 (holding that removal is not
punishment and that the Eighth Amendment is inapplicable);
Elia v. Gonzales, 431 F.3d 268, 276 (6th Cir. 2005) (same);
Cadet v. Bluger, 377 F.3d 1173, 1196 (11th Cir. 2004)
(same); Flores-Leon v. I.N.S., 272 F.3d 433, 440 (7th Cir.
2001) (same); Briseno v. I.N.S., 192 F.3d 1320, 1323 (9th
Cir. 1999) (same); Santelises v. I.N.S., 491 F.2d 1254, 1255
(2d Cir. 1974) (same).
14
determination — its severity does not vary like that of a
damages award. We hold that Sunday’s Fifth Amendment
rights were not violated.
IV.
The Immigration and Nationality Act does not grant
the Attorney General the authority to issue Sunday a waiver
of inadmissibility. Nor does Sunday’s removal constitute
unconstitutionally disproportionate punishment. We will
deny Sunday’s petition.
15