Blackman Hinds v. Holder

United States Court of Appeals
For the First Circuit
No. 13-2129
ROGELIO BLACKMAN HINDS,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Thompson, Circuit Judge,
and Laplante,** District Judge.
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
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr. as respondent.
** Of the District of New Hampshire, sitting by designation.
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.
June 24, 2015
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 (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
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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.
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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 (B.I.A. 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.
1 While not determinative, we note that Blackman repeatedly
refers to his "decades of lawful residence in this country." The
record refutes this suggestion. Blackman arrived in the United
States in 1975, was arrested in 1990 for activities that presumably
pre-dated his arrest date, and then served eighteen years in prison
following his 1994 conviction.
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Nestor, 363 U.S. 603, 616 (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 (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, 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
(emphasis added) (footnote omitted).
2 Instead of "deportation," Congress now uses the term
"removal." See Calcano-Martinez v. I.N.S., 533 U.S. 348, 350 n.1
(2001). Because Padilla refers to deportation, and because many
of the Supreme Court's decisions in this arena pre-date the change,
we use the terms interchangeably throughout this opinion.
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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:
3 Citing Padilla, Blackman makes a fleeting reference to the
"possibility" that his defense counsel failed to apprise him of
the immigration consequences of his conviction. Not only is this
argument undeveloped, but Padilla is entirely inapposite because,
while Blackman was convicted after a jury trial, Padilla pled
guilty and his counsel's failure thus may have prevented Padilla
from making an informed decision whether to enter that plea.
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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 (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 (ellipses and alterations omitted) (quoting United States v.
Bajakajian, 524 U.S. 321, 344 (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.
4Because the Court has described the two clauses in tandem,
and their limitations together, see Cooper Indus., 532 U.S. at
433-34, our discussion of the Eighth Amendment largely disposes of
Blackman's due process argument. For that same reason, and
although the government curiously has not pressed waiver here, we
excuse Blackman's failure to present his Eighth Amendment claim to
the BIA. The "BIA is without jurisdiction to adjudicate purely
constitutional issues," Ravindran v. I.N.S., 976 F.2d 754, 762
(1st Cir. 1992), and we have explained that some claims of
"deprivation of constitutional rights . . . are exempt from th[e]
exhaustion requirement because the BIA has no power to address
them," Bernal-Vallejo v. I.N.S., 195 F.3d 56, 64 (1st Cir. 1999).
Here, because the BIA expressly held that it was without "authority
to rule on the constitutionality or validity of the Act or the
regulations it administers," we have no doubt that the BIA would
similarly have held that it was unable to consider Blackman's
Eighth Amendment attack. Thus, we will review it.
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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 (1893);
see also Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,
491 (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 (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
being held to the terms under which he was admitted." Am.-Arab
Anti-Discrimination Comm., 525 U.S. at 491. For this reason, and
"however severe its consequences," the Court has "consistently
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classified" removal "as a civil rather than a criminal procedure."
Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952).
Moreover, although the outcome is undeniably severe for
an alien, because removal is not intended to punish, federal courts
have consistently held that the Eighth Amendment, the ex post facto
clause, the double jeopardy clause, and other attendant criminal
protections do not apply to orders of removal. Accordingly -- and
again for over a century -- the description of deportation as non-
punitive has expressly foreclosed Blackman's argument.
Constitutionally speaking, there is a categorical difference
between a civil prohibition and a criminal punishment. "In the
few cases where the Court has had occasion to confront claims that
impositions outside the criminal process constituted cruel and
unusual punishment, it has had no difficulty finding the Eighth
Amendment inapplicable." Ingraham v. Wright, 430 U.S. 651, 667-
68 (1977). Thus, the Court has concluded that the amendment is
entirely "inapplicable to the deportation of aliens" because
"deportation is not a punishment for crime." Id. at 668 (internal
quotation marks omitted); see also Fong Yue Ting, 149 U.S. at 730.
For similar reasons, the ex post facto clause does not apply to
deportation proceedings, and "legislation retroactively making
past criminal activity a new basis for deportation has been
repeatedly upheld." United States v. Bodre, 948 F.2d 28, 32 (1st
Cir. 1991); see also Galvan v. Press, 347 U.S. 522, 531 (1954)
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(noting that the ex post facto clause's inapplicability to
deportation "has been the unbroken rule"). And because it is non-
punitive, we have also rejected the double jeopardy clause's
application to deportation.5 See Arevalo v. Ashcroft, 344 F.3d 1,
10 n.6 (1st Cir. 2003); accord De La Teja v. United States, 321
F.3d 1357, 1364-65 (11th Cir. 2003).
The thrust of Blackman's argument is that the Court's
decision in Padilla effected a sea change in the way the Court
views removal, upset this unbroken line of authority, and "calls
the continuing validity of those statements into question." In
our assessment, however, Padilla has not altered this law.
To the extent that Blackman seeks refuge in the Court's
mere description of deportation as a "penalty," that term does not
call into question the continuing vitality of the Court's precedent
holding that the Eighth Amendment is not implicated by a
noncitizen's removal. The label, alone, has never been
5 The common inquiry across the Court's Eighth Amendment, ex
post facto, and double jeopardy jurisprudence is determining
whether the government's sanction is punitive in nature and
intended to serve as punishment. See Kennedy v. Mendoza-Martinez,
372 U.S. 144, 168-69 & nn.22-28 (1963). When answering that
question, the Court considers several factors which are "designed
to apply in various constitutional contexts." Smith v. Doe, 538
U.S. 84, 97 (2003). Accordingly, where useful, we rely on ex post
facto and double jeopardy cases to determine whether removal can
be classified as punishment. The Supreme Court has done the same
when analyzing these types of cases. See, e.g., id. at 94 (citing
double jeopardy precedent when deciding an ex post facto
challenge).
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dispositive. "[B]oth criminal and civil sanctions may be labeled
'penalties'" so any reliance on the descriptor is "unavailing."
United States v. One Assortment of 89 Firearms, 465 U.S. 354, 364
n.6 (1984) (holding that forfeiture proceeding was not barred by
the double jeopardy clause because it was not intended as
punishment). In Padilla, itself, the Court was careful to
reiterate that removal "is not, in a strict sense, a criminal
sanction." 559 U.S. at 365. Indeed, to the extent that semantics
are informative, the Court continues to refer to removal merely as
a "consequence" of a conviction, not as a penalty for criminal
conduct. See Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015)
(describing a conviction as "the trigger for immigration
consequences"); id. at 1990 n.11 (referring to removal and other
"immigration consequences to controlled-substance offenses").
Instead, although he never fully explains it, Blackman's
implicit argument may be that the Court signaled that it now views
removal as a punishment for an underlying crime for which a
noncitizen has been convicted when it described deportation as a
"penalty." We disagree.
To be sure, Padilla accurately recognized that "[o]ur
law has enmeshed criminal convictions and the penalty of
deportation for nearly a century," making "removal nearly an
automatic result for a broad class of noncitizen offenders." 559
U.S. at 365-66. No one can dispute that fact. Although narcotics
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offenses have "provided a distinct basis for deportation as early
as 1922," Congress has identified an increasingly broadening set
of criminal convictions -- including the expansive category of
"aggravated felonies" within which Blackman's drug convictions
fall -- that will render a noncitizen removable. See generally
id. at 360. At the same time, Congress has conversely narrowed
the circumstances in which courts and the Attorney General may
grant discretionary relief from removal. Id. at 363-64. Thus, as
Blackman's case puts into sharp relief, removal is a natural and
inescapable consequence that follows from many noncitizen
offenders' criminal convictions.
Yet, there is a critical distinction between recognizing
that a particular consequence might follow -- nearly automatically
-- from a criminal conviction and classifying that consequence as
a sanction intended to punish a noncitizen for that criminal
activity. Indeed, there are a whole host of consequences that
flow indelibly from a conviction. The mere fact that a criminal
conviction triggers a consequence has never been the operative
test to determine whether that consequence is punitive or otherwise
implicates the cruel and unusual punishment clause, the double
jeopardy clause, the ex post facto clause, or any other
constitutional protection. See, e.g., Smith v. Doe, 538 U.S. 84,
92, 105-06 (2003) (holding that Alaska sex offender registration
law was non-punitive and permissible under the ex post facto
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clause); Hudson v. United States, 522 U.S. 93, 104 (1997) (noting
that occupational debarment has not "historically been viewed as
punishment," and holding that a law barring individuals who
violated federal banking statutes from further participation in
the banking industry did not violate the double jeopardy clause);
Hawker v. New York, 170 U.S. 189 (1898) (same regarding revocation
of medical license); Simmons v. Galvin, 575 F.3d 24, 44-45 (1st
Cir. 2009) (noting that "felon disenfranchisement has historically
not been regarded as punitive").
And even the fact that the Court or a legislative body
believes that a consequence is significant enough that it requires
some notice to the defendant, does not transform that consequence
into a criminal punishment. The Court has definitively said so.
"The policy to alert convicted offenders to the civil consequences
of their criminal conduct does not render the consequences
themselves punitive." Smith, 538 U.S. at 95-96. Thus, 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.
If we had any doubt about Padilla's import, the Court's
subsequent decision in Chaidez v. United States would resolve it.
There, the Court held that Padilla set a new rule without
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retroactive effect in habeas proceedings. 133 S. Ct. 1103, 1105
(2013). Its analysis makes clear that the Court did not intend to
upset settled law in Padilla simply by characterizing removal as
a "penalty." The Chaidez majority explained that Padilla had
"breach[ed] the previously chink-free wall between [the] direct
and collateral consequences" of criminal convictions. Id. at 1110.
Before Padilla, federal courts had "almost unanimously concluded"
that the Sixth Amendment did not require "attorneys to inform their
clients of a conviction's collateral consequences, including
deportation." Id. at 1109. But in the Court's understanding,
Padilla broke entirely new ground when it held that defense
counsel's advice about a conviction's "non-criminal consequences,"
including deportation, were not wholly beyond the Sixth
Amendment's reach.6 Id. at 1110. It would be far from consistent
-- indeed, altogether incongruous -- for the Court to so heavily
emphasize how Padilla charted a new course by extending Sixth
Amendment protections to a conviction's non-criminal consequences
while all the while intending to bring removal into the ambit of
"punishment," with all of its attendant safeguards. In short,
6 While Chaidez appears to describe deportation consequences
as one of many "collateral consequences of a guilty plea," 133 S.
Ct. at 1109, the Court was more equivocal in Padilla, noting only
that "[d]eportation as a consequence of a criminal conviction is
. . . uniquely difficult to classify as either a direct or a
collateral consequence." 559 U.S. at 366. Collateral or not,
however, it is clear that the Court did not intend to change its
conception of a removal order as non-punishment.
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Blackman's reading of Padilla is irreconcilable with the Court's
continuing description of removal as involving simply a non-
criminal consequence of a guilty plea.
Claiming that removal's civil character is immaterial
for application of the Eighth Amendment, Blackman also relies on
Austin v. United States, where the Court eschewed a clean line
between civil and criminal proceedings and held that the Eighth
Amendment's Excessive Fines clause applied to civil forfeiture.
509 U.S. 602, 607-10 (1993). For two distinct reasons any reliance
on Austin is misplaced. First, and quite obviously, the case has
no application because removal is not the imposition of a fine and
does not implicate the Excessive Fines clause. Accord Zamora-
Mallari v. Mukasey, 514 F.3d 679, 695 (7th Cir. 2008). The Court
made that limitation clear in a later case, where it explained
that classifying civil forfeiture as an excessive fine did not,
categorically, transform all civil forfeitures into criminal
sanctions. United States v. Ursery, 518 U.S. 267, 287 (1996) ("The
holding of Austin was limited to the Excessive Fines Clause of the
Eighth Amendment, and we decline to import the analysis of Austin
into our double jeopardy jurisprudence."). We similarly think
that the Court would be reticent to import Austin's analysis into
the removal context.
But even more tellingly -- although the Court would later
state that Austin did not hold that civil forfeitures "are so
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punitive as to constitute punishment for the purposes of double
jeopardy," Ursery, 518 U.S. at 287 -- the crux of the Court's
decision in Austin was its recognition that, at least in some
respects, "'[t]he notion of punishment, as we commonly understand
it, cuts across the division between the civil and criminal law,'"
509 U.S. at 610. The Court's analysis hinged on its view that the
civil forfeiture statute at issue there implicated the Eighth
Amendment's Excessive Fines clause because the statute served, at
least in some part, as punishment. Id. The Court concluded that
both at the founding and at the time of its decision civil
forfeiture served "to deter and to punish." Id. at 621-22.
Because we have already concluded that Padilla does not indicate
that the Supreme Court has come to view removal as punishment,
Blackman's reliance on Austin is necessarily unavailing.
At bottom, despite Blackman's heavy, undue reliance on
Padilla's description of the removal as a "penalty" that flows
from a criminal conviction, we do not think the Court intended to
signal an implicit about-face from over a century of precedent
through its passing semantic choice of a particular word.7 Such a
7 Blackman repeatedly emphasizes the Court's description of
deportation as an "integral" or "important part" of "the penalty
that may be imposed on noncitizen defendants who plead guilty to
specified crimes." Padilla, 559 U.S. at 364. Yet, the remark's
context and the amicus brief that the Court cites to support it
make clear that the Court was referencing the relative importance
to the alien of particular consequences that flow from a guilty
plea, not deportation's importance to the government as a
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holding "would have represented a major innovation, and a lower
court should be slow to assume that the Supreme Court has taken a
significant doctrinal step by indirection or innuendo." ConnectU
LLC v. Zuckerberg, 522 F.3d 82, 93 (1st Cir. 2008). To be sure,
given Congress's increasing list of criminal prohibitions that
subject a noncitizen to removal, it may no longer be accurate to
classify the "coincidence of the local penal law with the policy
of Congress" as merely "an accident." Bugajewitz v. Adams, 228
U.S. 585, 591 (1913). We nevertheless think that removal continues
to operate simply as "a refusal by the government to harbor persons
whom it does not want," id., not as a punishment within the meaning
of the Constitution intended to acutely sanction a noncitizen for
his underlying criminal conviction.
Our holding aligns with the conclusions of the other
circuits that have considered this question since Padilla --
although those circuits reached their conclusions in an
unpublished opinion, see Veras-Martinez v. Holder, No. 14-428,
2015 WL 1381500, at *1 (2d Cir. Mar. 27, 2015), or without
referencing Padilla, see Eid v. Thompson, 740 F.3d 118, 126 (3d
particularly compelling sanction. See id.; see also Brief for
Asian American Justice Center et al. as Amici Curiae Supporting
Petitioner at 12, Padilla v. Kentucky, 559 U.S. 356 (2010) (No.
08-651) (noting that "[f]or many non-citizens facing criminal
prosecutions, the most important consideration in deciding whether
to accept a guilty plea is the effect that the decision will have
on their ability to remain in the United States with their
families" (emphasis added)).
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Cir. 2014). Other circuits have likewise concluded, in the course
of rejecting ex post facto arguments, that the Supreme Court's
decision in Padilla did not indicate that it now views removal as
punishment. See Morris v. Holder, 676 F.3d 309, 317 (2d Cir.
2012); Alvarado-Fonseca v. Holder, 631 F.3d 385, 391-92 (7th Cir.
2011).
We further note what may, by now, be obvious. To accept
Blackman's argument and hold that removal proceedings impose a
criminal penalty would seem to implicate all of those "other
rubrics" that apply to criminal proceedings. See Arevalo, 344
F.3d at 10 n.6. Yet, odd results would obtain if those rubrics
were to apply to orders of removal. Because a noncitizen removed
on the basis of a felony conviction likely would have already been
sentenced for that conviction, the double jeopardy clause would
appear to bar altogether his deportation as a successive
punishment. That result would, in effect, gut Congress's entire
removal scheme. In addition, another curious result of Blackman's
argument would seem to be that noncitizens convicted of a removable
offense (and thus for whom deportation might be called a criminal
punishment) would have the benefit of a case-by-case
proportionality assessment under the Eighth Amendment, while those
who are removed on other, non-criminal grounds would not. But it
is illogical that a conviction should somehow inure to an alien's
benefit.
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For all these reasons we conclude that the Eighth
Amendment continues to be inapplicable, and that Blackman is not
entitled to a proportional weighing of his circumstances.
B. The Due Process Clause
In a similar vein, Blackman argues that the Fifth
Amendment's due process clause8 requires that the immigration
consequences of his conviction be proportionate to his criminal
conduct. With respect to punitive damages, the Court has held
that due process prohibits punitive damages or other penalties
that are "'grossly excessive' in relation to" the government's
"legitimate interests in punishment and deterrence." BMW of N.
Am., Inc. v. Gore, 517 U.S. 559, 568 (1996); see also id. at 575
(setting forth three-factor test to evaluate constitutionality of
a punitive damages award).
Beyond the fact that Blackman cites no case even
suggesting that Gore and its progeny apply beyond the punitive
damages setting, his argument suffers from a more basic infirmity.
It fails for the simple reason that the entire underpinning of the
Court's doctrine is that punitive damages awards "serve the same
purposes as criminal penalties." State Farm Mut. Auto. Ins. Co.
8 Because Blackman contests the federal government's order of
removal, his claim is predicated on the Fifth Amendment, not the
Fourteenth Amendment. Nevertheless, despite the government's
claim to the contrary, we treat cases decided by the Supreme Court
under both amendments equivalently. See United States v. Neto,
659 F.3d 194, 201 n.7 (1st Cir. 2011).
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v. Campbell, 538 U.S. 408, 417 (2003). As the Court has explained,
"[t]he Due Process Clause of the Fourteenth Amendment prohibits
the imposition of grossly excessive or arbitrary punishments on a
tortfeasor." Id. at 416 (emphasis added). "The reason is that
'[e]lementary notions of fairness enshrined in our constitutional
jurisprudence dictate 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 that a State may impose.'" Id. at 417
(quoting Gore, 517 U.S. at 574).
Because we do not think the Court's description of
removal as a penalty has changed its assessment that removal is
not a punishment -- for the underlying conviction for which a
noncitizen felon is removed or for any other reason -- we likewise
think the Fifth Amendment does not require the proportionality
assessment Blackman demands.9 Cf. Cooper Indus., 532 U.S. at 433-
34 (discussing the Eighth Amendment and due process together).
9 Punitive damages serve a deterrent purpose, Gore, 517 U.S.
at 568, and to determine whether a measure is a criminal penalty
more generally, the Court likewise considers whether the measure
"promote[s] the traditional aims of punishment -- retribution and
deterrence,'" Hudson v. United States, 522 U.S. 93, 99 (1997)
(quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69
(1963)). To bring himself within this doctrine, in a passing
footnote Blackman cites legislative history suggesting that
reentry bars, which are "attendant to deportation," Dada v.
Mukasey, 554 U.S. 1, 11-12 (2008), serve to deter repeated unlawful
entry into the United States.
For two reasons this description, even if accurate, does not
alter our analysis. First, one must be precise about the relevant
conduct a measure is intended to deter. To be consistent with
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C. Constitutional Avoidance
Finally, Blackman claims that we need not definitively
hold that the Constitution requires a proportionality analysis.
Instead, citing the canon of constitutional avoidance, he urges us
to interpret 8 U.S.C. § 1229a(c)(1)(A) to avoid any constitutional
infirmities and, thus, to require an IJ to consider proportionality
when determining whether an alien is removable. See 8 U.S.C. §
1229a(c)(1)(A)("At the conclusion of the proceeding the
immigration judge shall decide whether an alien is removable from
the United States."). This argument necessarily fails. Because
an alien's categorical removal absent a proportionality review
poses no serious constitutional problem, this canon of
construction is altogether inapplicable. See, e.g., Warger v.
Blackman's claim that Padilla recognized deportation as a penalty
for an underlying criminal conviction, removal bars would need to
deter that underlying criminal conduct. But the legislative
history speaks of deterring individuals from unlawfully re-
entering the country. It says nothing about whether those bars
deter individuals from committing the underlying criminal offenses
for which they are being deported. Second, even if reentry bars
did in some respect deter criminal conduct, a penalty that serves
merely an incidental deterrent function does not automatically
transform that penalty into a punishment. See Hudson, 522 U.S. at
105 (noting that the "mere presence" of a deterrent purpose is
"insufficient to render a sanction criminal, as deterrence may
serve civil as well as criminal goals" (internal quotation marks
omitted)); accord Bae v. Shalala, 44 F.3d 489, 494 (7th Cir. 1995).
"Any number of governmental programs might deter crime without
imposing punishment." Smith, 538 U.S. at 102.
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Shauers, 135 S. Ct. 521, 529 (2014); United States v. Dwinells,
508 F.3d 63, 70 (1st Cir. 2007).
III.
In the end, our holding is bolstered by the dramatic
separation of powers consequences that would follow if we accepted
Blackman's reading of Padilla. His argument boils down to an
assertion that in seemingly any removal proceeding an IJ or a
reviewing court is required to assess whether removal is a
proportional penalty for the alien's crime. But, in urging us to
endorse a case-by-case weighing of an alien's individual
circumstances against the penalty of removal, Blackman's argument
is in effect "an impermissible effort to shift to the judiciary
the power to expel or retain aliens." Enwonwu v. Gonzales, 438
F.3d 22, 28 (1st Cir. 2006). The Constitution, however, assigns
to Congress "the tasks of defining how aliens are admitted to the
United States, whether and under what conditions they may stay,
and under what conditions such an alien will be removed or may
avoid removal." Id.
We do not deny that lawful permanent residents, like
Blackman, "enjoy[] the full protection of the United States
Constitution." Herrera-Inirio v. I.N.S., 208 F.3d 299, 306 (1st
Cir. 2000). Nor do we gainsay that "the Due Process Clause applies
to all 'persons' within the United States, including aliens,
whether their presence here is lawful, unlawful, temporary, or
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permanent." Zadvydas v. Davis, 533 U.S. 678, 693 (2001). But, at
least when delineating those classes of aliens who are removable,
the Constitution in its fullest application places little
substantive limit on Congress's reasonable policy decisions. See
Enwonwu, 438 F.3d at 30-31 (citing Galvan, 347 U.S. at 530-33).
"Deportation is strictly a Congressional policy question in which
the judiciary will not intervene as long as procedural due process
requirements have been met." LeTourneur v. I.N.S., 538 F.2d 1368,
1370 (9th Cir. 1976).
Unless and until the Supreme Court conceives of removal
as a punishment, or otherwise holds that the Eighth Amendment or
the due process clause requires a wholesale case-by-case
assessment of the wisdom of removing a particular alien, we refuse
to take that adventurous leap on our own and "substitute our
political judgment for that of . . . Congress." Fiallo v. Bell,
430 U.S. 787, 798 (1977). We decline to impose such an extra-
legislative discretionary weighing regime in the place of
Congress's categorical policy judgments about which criminal
convictions should subject an alien to removal.
Accordingly, Blackman's petition for review is denied.
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