No. 13-2129 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ________________ ROGELIO BLACKMAN HINDS, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. ________________ On Petition for Review of an Order of the Board of Immigration Appeals No. A035-197-709 ________________ BRIEF FOR PETITIONER ________________ D. ZACHARY HUDSON Counsel of Record BANCROFT PLLC 1919 M Street NW Suite 470 Washington, DC 20036 (202) 234-0090 [email protected]Counsel for Petitioner November 22, 2013 Case: 13-2129 Document: 00116615575 Page: 1 Date Filed: 11/22/2013 Entry ID: 5782394
Transcript
No. 13-2129
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
________________
ROGELIO BLACKMAN HINDS,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
________________
On Petition for Review of an Order of the Board of Immigration Appeals No. A035-197-709 ________________
BRIEF FOR PETITIONER ________________
D. ZACHARY HUDSON Counsel of Record BANCROFT PLLC 1919 M Street NW Suite 470 Washington, DC 20036 (202) 234-0090 [email protected]
I. Constitutional Proportionality Principles Prohibit Removal Of A Lawful Permanent Resident When Such Removal Would Constitute An Unduly Harsh Penalty Under The Circumstances Of The Case. ...................................................................................................... 13
A. The Due Process Clause Compels Proportionality Review Of Removal Orders And Attendant Re-Entry Bars. ........................... 15
B. The Eighth Amendment’s Prohibition On Cruel And Unusual Punishment And Excessive Fines Also Compels Proportionality Review Of Removal Orders And Re-Entry Bars. .................................................................................................... 22
C. The Plenary Power Doctrine Does Not Prohibit Proportionality Review Of Immigration Penalties. ............................ 27
II. Removing Mr. Blackman And Barring Him From Re-Entry Constitutes A Severe Penalty That Is Disproportionate To His Underlying Conduct And Unduly Harsh Under The Specific Circumstances Of This Case. ........................................................................ 30
III. The Canon Of Constitutional Avoidance Requires That 8 U.S.C. § 1229a(c)(1)(A) Be Construed To Require Immigration Judges To Conduct Proportionality Review Of Removal Orders And Re-Entry Bars In Cases Involving Lawful Permanent Residents. ............................... 33
I.N.S. v. Chadha, 462 U.S. 919 (1983) .....................................................................29
I.N.S. v. St. Cyr, 533 U.S. 289 (2001) ......................................................................34
In re Leonsio Crisoforo Gonzalez-Camarillo, 21 I. & N. Dec. 937 (1997) .................................................................................36
In re Q-T-M-T-, 21 I. & N. Dec. 639 (1996) ...........................................................36
In re Raul Rodarte-Roman, 23 I. & N. Dec. 905 (2006) .........................................18
Honoring Americaތs Veterans and Caring for Camp Lejeune Families Act, Pub. L. No. 112-154, 126 Stat. 1165 (2012) ...............................................30
Immigration Act of 1917, Pub. L. No. 64-301, 39 Stat. 874 ...................................17
Other Authorities
142 Cong. Rec. 2378 (1996) (Statement of Rep. Marge Roukema)........................17
Angela M. Banks, Proportional Deportation, 55 Wayne L. Rev. 1651 (2009) ..................................................................................................................18
Stephen Breyer, Making Our Democracy Work: A Judge’s View (2010) ................14
Erwin Chemerinsky, The Constitution and Punishment, 56 Stan. L. Rev. 1049 (2004) ..............................................................................14
Andrew von Hirsh, Proportionality in the Philosophy of Punishment, 16 Crime & Justice (1992) ..................................................................................14
International Covenant on Civil and Political Rights art. 17, Dec. 16, 1966, 6 I.L.M. 368, 999 U.N.T.S. 171 .....................................26
S. Rep. No. 64-352 (1916) .......................................................................................17
Wayne Smith, Hugo Armendariz, et al. v. United States, Case 12.562, Inter-Am. Comm’n H.R., Report No. 81/10, OEA/Ser/L//V/II.139, doc. 21 rev. (2010) ..............................................................................................26
Kate Stith & Jose A. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts (1998) ............................................................14
Juliet Stumpf, Fitting Punishment, 66 Wash. & Lee L. Rev. 1683 (2009) ..................................................................................................................18
Michael J. Wishnie, Immigration Law and the Proportionality Requirement, 2 U.C. Irvine L. Rev. 415 (2013) ..................................................18
U.S. Dep’t of State, Panama: U.S. Foreign Assistance Performance Publication Fiscal Year 2009, available at http://www.state.gov/ documents/organization/159255.pdf...................................................................30
Universal Declaration of Human Rights art. 16, G.A. Res. 217A (III), U.N. Doc. A/810 (1948)......................................................................................26
Op. 2). Thus, while the BIA recognized Mr. Blackman’s constitutional avoidance
argument, it did not explain why the cannon did not compel a construction of 8
U.S.C. § 1229a(c)(1)(A) that requires an individualized proportionality analysis.1
On September 13, 2013, Mr. Blackman timely filed the underlying petition
for review of the BIA’s decision with this Court. See Doc. 1.
STANDARD OF REVIEW
This Court reviews constitutional and statutory construction claims raised in
immigration proceedings de novo. See, e.g., Kheireddine v. Gonzales, 427 F.3d 80,
83 (1st Cir. 2005).
SUMMARY OF ARGUMENT
Whether through the direct application of the Fifth and Eighth Amendments
or 8 U.S.C. § 1229a(c)(1)(A) as construed to comply with those Amendments,
constitutional proportionality principles prohibit the removal of a lawful permanent
resident when such removal would constitute an unduly harsh penalty. The
principle of proportionality has been expressly recognized by the Supreme Court
1 The BIA also noted Mr. Blackman’s “assertion that he fears returning to
Panama due to the reprisal efforts of his former co-defendant, who is associated with a Panamanian gang,” but stated that Mr. Blackman “specifically declined to apply for protection under the Convention Against Torture, despite being advised of his potential eligibility by the Immigration Judge.” Add. 9a (BIA Op. 2). Because Mr. Blackman fears harm from a group of private Panamanian citizens as opposed to government actors, he did not pursue a Convention Against Torture claim.
I. Constitutional Proportionality Principles Prohibit Removal Of A Lawful Permanent Resident When Such Removal Would Constitute An Unduly Harsh Penalty Under The Circumstances Of The Case.
The principle of proportionality—that a penalty should be proportionate to
the underlying offense—is “deeply rooted and frequently repeated in common-law
jurisprudence,” Solem v. Helm, 463 U.S. 277, 284 (1983), and has been explicitly
recognized by the Supreme Court for more than 100 years, id. at 286-87 (citing
Weems v. United States, 217 U.S. 349 (1910) (“it is a precept of justice that
punishment for crime should be graduated and proportioned to the offense”)). This
fundamental principle has long served as a safeguard against extreme penalties in
both civil and criminal cases. In the civil context, the Supreme Court has held that
disproportionate civil penalties violate due process, see, e.g., State Farm Mut. Auto
Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003) (setting aside a punitive damages
award and holding that “the Due Process Clause of the Fourteenth Amendment
prohibits the imposition of grossly excessive or arbitrary punishments . . . .”);
BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 585-86 (1996) (setting aside civil
punitive damages award as disproportionate in violation of the Due Process
Clause), and that proportionality is required when determining the permissibility of
government-mandated dedications under the Takings Clause, see Dolan v. City of
Tigard, 512 U.S. 374, 391-92 (1994) (applying “rough proportionality” test to
determine whether a “required dedication is related both in nature and extent to the
impact of the proposed development”). In the criminal context, the Supreme Court
has found that disproportionately harsh penalties violate the Eighth Amendment.
See, e.g., Graham v. Florida, 560 U.S. 48, 59, 81(2010) (holding unconstitutional a
sentence of life in prison without parole for a juvenile offender who committed a
non-homicide crime, and noting “the concept of proportionality is central to the
Eighth Amendment”); Solem, 463 U.S. at 303 (holding that a life sentence for
passing a bad check is disproportionate and therefore a violation of the Eighth
Amendment).2 Whether viewed as a civil or criminal penalty, removal orders—
and the re-entry bars that inexorably accompany the entry of such orders—must be
subjected to constitutionally mandated proportionality analysis.
2 Numerous scholarly works—including those by sitting judges and Justices—
have catalogued the history and importance of proportionality principles to our legal system. See, e.g., Kate Stith & Jose A. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 14 (1998) (“The idea of proportionality in sentencing has been part of our tradition since biblical times.”); Erwin Chemerinsky, The Constitution and Punishment, 56 Stan. L. Rev. 1049, 1063-65 (2004) (tracing proportionality principles back to the Magna Carta); Stephen Breyer, Making Our Democracy Work: A Judge’s View 160 (2010) (“[P]roportionality helps reconcile competing rights and interests in a workable way.”); Andrew von Hirsh, Proportionality in the Philosophy of Punishment, 16 Crime & Justice 55, 56 (1992) (Proportionality embodies “notions of justice. People have a sense that punishments scaled to the gravity of offenses are fairer than punishments that are not.”).
re-entry bars “compound the adverse consequences of immigration violations.” In
re Raul Rodarte-Roman, 23 I. & N. Dec. 905, 909 (2006).3
Given the punitive nature of removal orders and re-entry bars, the Due
Process Clause requires that these penalties be proportionate to the conduct of the
individuals upon whom the penalties are imposed. See TXO Prod. Corp., 509 U.S.
at 453-54 (due process principles “impose[] substantive limits beyond which
penalties may not go” (internal quotations omitted)). While “[n]o precise
mathematical calculation is required,” proportionality obligates an adjudicator to
3 The legislative history surrounding the adoption and extension of re-entry bars
makes clear that such bars are penalties. Congress first adopted a re-entry bar in 1917. Immigration Act of 1917, Pub. L. No. 64-301, § 3, 39 Stat. 874, 876 (providing for exclusion of “persons who have been deported under any of the provisions of this Act, and who may again seek admission within one year from the date of such deportation”). The accompanying Senate Report explained that the bar was meant to, like criminal punishments, have a deterrent effect: the aim of the bar was to end “the quite extensive and very annoying practice of aliens expelled from the country or debarred at the ports thereof immediately reattempting to break past the barriers and enter.” S. Rep. No. 64-352, at 4 (1916). Legislative history from 80 years later confirms that this animating punitive purpose endures. In debates surrounding the adoption of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, in which Congress increased the harshness of re-entry bars, one legislator noted that “the one-strike-and-you’re-out” re-entry bars impose a “real penalty” and serve as a “deterrent.” 142 Cong. Rec. 2378, 2459 (1996) (Statement of Rep. Marge Roukema). Other legislators described the re-entry bars as “stiff penalt[ies]” and “severe punishment.” Id. at 2458 (statement of Rep. John Bryant); id. (statement of Rep. Xavier Becerra); see H.R. Rep. No. 104-169, at 528 (1996) (dissenting views) (characterizing extension of re-entry bars as “harsh new bans on the ability of aliens to seek lawful entry into this country”).
“make some sort of individualized determination” that the penalty imposed is not
unduly harsh under the circumstances of the case. Dolan, 512 U.S. at 391.4
Neither the Supreme Court nor this Court has articulated a standard for
determining whether a removal order and the associated re-entry bar are
disproportionately harsh. As just noted, the sine qua non of such an analysis is an
individualized determination as to the proportionality of the penalty as it relates to
the underlying offense. And in immigration cases, the assessment of the penalty’s
severity should take into account all of the circumstances that will flow directly
from the removal order and re-entry bar. As the Supreme Court underscored in
Woodby, a court should “not close[] its eyes to the drastic deprivations that may
follow when a resident of this country is compelled by our Government to forsake
all the bonds formed here and go to a foreign land where he often has no
contemporary identification.” 385 U.S. at 285.
The absence of controlling case law on the specific arguments at issue in this
case gives the Court some freedom to fashion a standard that takes into account the
4 Several scholars have recognized the constitutional necessity of conducting
proportionality review in immigration cases. See, e.g., Michael J. Wishnie, Immigration Law and the Proportionality Requirement, 2 U.C. Irvine L. Rev. 415 (2013) (arguing for proportionality review pursuant to the Fifth and Eighth Amendments); Angela M. Banks, Proportional Deportation, 55 Wayne L. Rev. 1651 (2009) (noting that due process requires proportionality in immigration proceedings); Juliet Stumpf, Fitting Punishment, 66 Wash. & Lee L. Rev. 1683, 1732-40 (2009) (proposing a graduated system of immigration sanctions).
unique interests involved in immigration cases, but proportionality case law
outside the immigration context provides some guidance. In punitive damages
cases, the Supreme Court has defined three “guideposts” for assessing whether a
specific punitive damages award is permissible: “(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.” State Farm, 538 U.S. at
418 (citing Gore, 517 U.S. at 575).5 In immigration cases, there is no direct
analogue to compensatory damages, and thus the second State Farm guidepost is
of little use. But the first and third factors set forth in State Farm can be directly
applied in removal cases—a court can evaluate the severity of the impact of a
removal order and re-entry bar in proportion to the relevant underlying conduct
and assess the harshness of those penalties in light of all of the circumstances of
the case.
5 That these cases concerned the Due Process Clause of the Fourteenth Amendment rather than the Fifth Amendment is of no moment: “the language and policies of the Due Process Clauses of the Fifth and Fourteenth Amendments are essentially the same, [and] due process cases decided under the Fourteenth Amendment provide guidance in due process cases arising under the Fifth Amendment.” United States v. Neto, 659 F.3d 194, 201 n.7 (1st Cir. 2011) (citations and internal quotation marks omitted); see Malinski v. New York, 324 U.S. 401, 415 (1945) (Frankfurter, J., concurring) (“To suppose that ‘due process of law’ meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection.”).
penalty”); Dada, 554 U.S. at 11-12 (re-entry bars are a “penalt[y] attendant to
deportation”).
B. The Eighth Amendment’s Prohibition On Cruel And Unusual Punishment And Excessive Fines Also Compels Proportionality Review Of Removal Orders And Re-Entry Bars.
The Eighth Amendment’s mandate that punishment and fines be
proportionate to the relevant underlying conduct also requires proportionality
review of removal orders and re-entry bars. “The concept of proportionality is
central to the Eighth Amendment.” Graham, 560 U.S. at 59. As noted,
proportionality review in the criminal law can be traced back more than a century,
see Weems, 217 U.S. 349, and has been applied in all manner of cases. See e.g.,
Graham, 560 U.S. 48 (holding that a life sentence for juvenile offender who did
not commit homicide violates Eighth Amendment proportionality requirement);
Solem, 463 U.S. 277 (holding that a life sentence for seventh conviction for
passing bad check violates same).
As relevant here, the Eighth Amendment proscribes the infliction of extreme
punishments and the imposition of excessive fines. In the punishment context, the
Court recognizes two distinct forms of proportionality review. The first is a
“narrow proportionality review,” which asks whether a particular criminal sentence
is so excessive in relation to the gravity of the offense as to raise an inference of
“gross disproportionality.” Ewing v. California, 538 U.S. 11, 37 (2003) (the
makes clear that removal is punitive, and thus mandates the provision of Eighth
Amendment protections in removal proceedings.
In all events, even if Eighth Amendment protections do not apply directly in
immigration proceedings (Padilla suggests they do), Eighth Amendment values
provide further support for the proportionality inquiry that due process demands.
As discussed, due process precedent compels an individualized inquiry as to the
severity of the impact of a removal order and re-entry bar in proportion to the
relevant underlying conduct and an assessment of whether those penalties are
unduly excessive under all of the circumstances of the specific case. That analysis
is identical in all material respects to the proportionality review mandated by the
Eighth Amendment. See Ewing, 538 U.S. at 37; Bajakajian, 524 U.S. at 344-46.6
6 The European Court of Human Rights has held that deportation must be
“proportionate to the legitimate aim pursued,” which requires consideration of the individual’s circumstances as well as the State’s interest in removal. Dalia v. France, 1988 Eur Ct. H.R. 14-15 (1998). And the Inter-American Commission on Human Rights has concluded that “it is well-recognized under international law that a Member State must provide non-citizen residents an opportunity to present a defense against deportation based on humanitarian and other considerations.” Wayne Smith, Hugo Armendariz, et al. v. United States, Case 12.562, Inter-Am. Comm’n H.R., Report No. 81/10, OEA/Ser/L//V/II.139, doc. 21 rev. ¶ 5 (2010). By the same token, foreign and international law recognize that removal may be a disproportionate sanction, especially where it will adversely impact family unity. See Universal Declaration of Human Rights art. 16, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948) (“The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”); International Covenant on Civil and Political Rights art. 17, Dec. 16, 1966, 6 I.L.M. 368, 999 U.N.T.S. 171 (prohibiting “arbitrary or unlawful interference with . . . family or home”).
II. Removing Mr. Blackman And Barring Him From Re-Entry Constitutes A Severe Penalty That Is Disproportionate To His Underlying Conduct And Unduly Harsh Under The Specific Circumstances Of This Case.
Conducting the proportionality inquiry mandated by the Due Process Clause
and the Eighth Amendment makes plain that removing Mr. Blackman from the
United States and barring his re-entry is impermissible.
As Mr. Blackman explained to the Immigration Judge, and again to the BIA,
banishing him to Panama will have particularly severe consequences both for Mr.
Blackman and his family. Mr. Blackman is a 58-year-old veteran with serious
health problems that has resided in this country lawfully for nearly 40 years. Mr.
Blackman suffers from numerous health problems including epilepsy, anemia, and
chronic post-traumatic stress headaches, many of which are likely the result of his
military service. Mr. Blackman has not stepped foot in Panama since 1975, has no
connections there, and thus may have a difficult time finding medical care—care
he would receive from the Department of Veterans Affairs because of his service to
our country if allowed to remain in the U.S. and return home to his family.7
7 In addition to the health care benefits to which Mr. Blackman is entitled as an
honorably-discharged veteran, he is also eligible for additional benefits under the recently-enacted Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012. See Pub. L. No. 112-154, 126 Stat. 1165 (2012). In recognition of the fact that the water at Camp Lejeune was contaminated with toxic industrial chemicals for decades, the Act provides additional benefits to veterans who, like Mr. Blackman, served on active duty and resided at Camp Lejeune for 30 days or more between January 1, 1957, and December 31, 1987. Those benefits will likely be beyond Mr. Blackman’s reach in Panama.
faces banishment—a significant additional punishment. To make matters worse, a
removal order effectively imposes the sentence that the judge presiding over Mr.
Blackman’s criminal trial rejected. The government initially recommended a life
sentence, and the judge told the government that sentence was too harsh. But, in
many respects, a life sentence is what a removal order imposes given the
accompanying re-entry bar. Indeed, the possibility that Mr. Blackman will become
a target of La Banda if forced to return to Panama may make removal tantamount
to a death sentence.8
III. The Canon Of Constitutional Avoidance Requires That 8 U.S.C. § 1229a(c)(1)(A) Be Construed To Require Immigration Judges To Conduct Proportionality Review Of Removal Orders And Re-Entry Bars In Cases Involving Lawful Permanent Residents.
This Court can hold that the Fifth and Eighth Amendments require
proportionality review of removal orders and re-entry bars in cases involving
lawful permanent residents, and that pursuant to such review Mr. Blackman cannot
be removed from the United States. But it need not do so. Instead, this Court
could hold that 8 U.S.C. § 1229a(c)(1)(A), which provides that “[a]t the conclusion
8 The harshness of a removal order and re-entry bar in Mr. Blackman’s case is
further exacerbated by the fact that his attorney in the 1992 criminal proceedings may have failed to advise Mr. Blackman of the immigration consequences of a conviction. See JA 20 (Blackman Decl. ¶ 9). The Padilla Court held that the Sixth Amendment requires counsel to advise their clients “regarding the risk of deportation.” Padilla, 559 U.S. at 367. In doing so, the Court recognized the critical “importance of accurate legal advice for noncitizens accused of crimes has never been more important.” Id. at 364.
proceeding the immigration judge shall decide whether an alien is removable from
the United States” be construed to include a prohibition on entering a removal
order that has unduly harsh consequences in a given case. Absent such a saving
construction, immigration judges will be authorized to enter removal orders that—
as here—constitute a grossly disproportionate and excessive penalty under the
circumstances of an individual case, raising grave doubts about the statute’s
constitutionality.9
Under 8 U.S.C. § 1229a(c)(1)(A) properly construed, and for the reasons
explained in Part II, the Immigration Judge wrongly entered a removal order
against Mr. Blackman, and this Court should so hold. In the alternative, this Court
could remand the case with orders that the required proportionality analysis be
conducted, and the factual record supplemented as necessary.10
9 This construction is further compelled by the rule of lenity, which requires
courts to construe ambiguities in favor of defendants. The rule of lenity applies in immigration cases. See Clark, 543 U.S. at 380.
10 The Court could also remand the matter to the BIA for a fuller consideration of the constitutional avoidance argument. The BIA has recognized the applicability of the canon of constitutional avoidance in immigration proceedings. See, e.g., In re Leonsio Crisoforo Gonzalez-Camarillo, 21 I. & N. Dec. 937, 953 (1997) (“It is a basic canon of statutory construction that where we can interpret a statute so as to avoid a constitutional infirmity, we should do so.”); In re Q-T-M-T-, 21 I. & N. Dec. 639, 667-68 (1996) (“Although we do not decide the constitutionality of the statutes we interpret, our role is to construe statutes to achieve results which are consistent, rather than in conflict, with constitutional protections.”). As noted supra, the BIA did not explain why it rejected Mr. Blackman’s constitutional avoidance argument, and thus, at an absolute minimum, this case should be remanded so that it can do so.
For the reasons set forth above, this Court should hold that the Due Process
Clause of the Fifth Amendment and the Eighth Amendment, or 8 U.S.C.
§ 1229a(c)(1)(A) as construed to comply with those Amendments, prohibit the
removal of a lawful permanent resident when the penalty imposed by removal is
disproportionate to the relevant underlying conduct, and that, in light of the
specific facts of Mr. Blackman’s case, he cannot be removed. In the alternative,
this Court should remand the matter with orders to conduct the proportionality
analysis mandated by 8 U.S.C. § 1229a(c)(1)(A) as construed to comply with the
Fifth and Eighth Amendments.
Respectfully submitted,
/S/ D. Zachary Hudson D. ZACHARY HUDSON Counsel of Record BANCROFT PLLC 1919 M Street NW Suite 470 Washington, DC 20036 (202) 234-0090 [email protected]
